GT v Secretary of State for Work and Pensions

A tribunal may properly discuss a legal issue with another judicial office holder to promote consistency, provided that it retains responsibility for its own decision and procedural fairness is preserved. A tribunal errs in law where its reasons give the clear impression that it has abdicated a material issue to a person who did not determine the case on the evidence and submissions.

For personal independence payment, the required period condition must be assessed separately for each component and rate. It comprises both a three-month retrospective period and a nine-month prospective period, fixed by the prescribed date. Awards may be stepped between standard and enhanced rates, and the two components need not begin on the same date.

The appellant claimed personal independence payment in January 2019. The Secretary of State awarded both components at the enhanced rate from 1 December 2019. On appeal, the First-tier Tribunal brought the start date forward to 1 September 2019.

Its statement of reasons said that it had consulted a Duty District Judge about whether it could determine when symptoms of a brain tumour manifested and backdate the award. The appellant appealed, contending also that the earlier period of entitlement had not been properly assessed. The Secretary of State supported the appeal on the consultation issue.

The central issues were whether the consultation invalidated the First-tier Tribunal’s decision and what guidance should be given on reassessing the required period condition on remittal.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for an error of law and the appeal was remitted to a freshly constituted tribunal for an oral rehearing.

2. There was no established breach of the composition requirements. The facts did not show that the Duty District Judge had become a formal fourth member of the tribunal. Judicial office holders may discuss a legal issue with colleagues, particularly where consistency is sought. A purely legal discussion is analogous to legal research, subject to the parties having an opportunity to address any new point arising from it.

3. However, the First-tier Tribunal’s reasons stated that the Duty District Judge had been consulted to ensure the correct decision and had confirmed what the tribunal could decide. That language clearly suggested that the tribunal had abdicated responsibility for a key issue and allowed an outside person to have the effective final word. It was incompatible with judicial independence and gave rise to a breach of natural justice, since the apparent real decision-maker had not heard or read all the evidence and submissions.

4. On remittal, the new tribunal must determine entitlement at the date of claim and whether the relevant conditions continued to be met for the required periods. The required period condition comprises a three-month retrospective and nine-month prospective period for each component and rate, fixed by the prescribed date under the Social Security (Personal Independence Payment) Regulations 2013. The tribunal may make stepped awards and may identify different start dates for the daily living and mobility components.

5. The Upper Tribunal added that, if necessary, it would also have allowed the appeal because the First-tier Tribunal had not made sufficient findings about the effects of the appellant’s conditions at the date of claim.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision for breach of natural justice, and remitted the case to a new tribunal under section 12(2)(a) and section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.
• First-tier Tribunal (Social Entitlement Chamber): on 22 February 2021 allowed the claimant’s appeal in part and awarded both personal independence payment components at the enhanced rate from 1 September 2019.