ZY v The Secretary of State for Work and Pensions

A First-tier Tribunal determining a personal independence payment appeal must be constituted in accordance with the applicable Practice Statement. A two-member tribunal cannot determine such an appeal unless an authorised direction permits a different composition or the parties agree under paragraph 15(6) of Schedule 4 to the Tribunals, Courts and Enforcement Act 2007. Procedural rules which do not govern tribunal composition cannot supply that authority.

Where an improperly constituted tribunal has decided the appeal, its decision involves an error of law. The proper course may be to set it aside and remit the appeal for a fresh oral hearing before a newly constituted three-member tribunal.

The appellant appealed a First-tier Tribunal decision of 28 April 2023 concerning personal independence payment (PIP). The First-tier Tribunal had sat without a disability qualified panel member and decided that it could proceed as a two-member tribunal under the procedural rules.

The Upper Tribunal considered whether that tribunal had been lawfully constituted and, if not, the appropriate disposal. The Secretary of State was absent from the hearing. A previous tribunal had adjourned the appeal because it comprised only two members and there was no agreement by both parties to proceed in that form.

The remitted appeal concerned only the closed period from 20 October 2021 to 4 July 2023, since the appellant later obtained an award on a fresh PIP claim.

1. Appeal allowed. The First-tier Tribunal's decision was made in error of law because the tribunal was not properly constituted to determine the PIP appeal.
2. The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 do not govern the constitution of the First-tier Tribunal. They therefore gave no basis for proceeding with only two members.
3. Paragraph 4 of the applicable Practice Statement required a PIP appeal to be determined by a three-member tribunal comprising a Tribunal Judge, a disability qualified panel member and a registered medical practitioner. Although paragraphs 8–13 allowed departures from that composition in specified circumstances, there was no evidence of a direction by the Chamber President or an appropriate Regional or District Tribunal Judge, and no apparent ground for such a departure.
4. Paragraph 15(6) of Schedule 4 to the Tribunals, Courts and Enforcement Act 2007 could permit a two-member tribunal only if both parties agreed. The Secretary of State was not present and there was no evidence of agreement by the appellant. Both parties could therefore not have agreed.
5. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, the decision was set aside. It was not appropriate for the Upper Tribunal to re-decide the merits. The case was remitted for a fresh oral hearing before a completely newly constituted three-member First-tier Tribunal. The appellant's success on error of law did not determine the merits of the PIP appeal.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal decision for error of law, and remitted it for a fresh oral hearing before a newly constituted three-member tribunal.
• First-tier Tribunal (Social Entitlement Chamber): on 28 April 2023, determined the PIP appeal as a two-member tribunal.