KA v Secretary of State for Work and Pensions

A tribunal determining an evidential dispute about a claimant’s right to reside must observe ordinary standards of procedural fairness. Each party must have an opportunity to answer material evidence or submissions adverse to their case. A tribunal should not decide an appeal on the papers without proper consent and adequate reasons. In an inquisitorial jurisdiction, it may use its case-management powers to require disclosure of documents relied on by a party, including documents held by a third party. The tribunal must make its own findings of fact and must not treat an asserted view of a public authority as determinative where contrary documentary evidence requires evaluation.

The appellant appealed against the First-tier Tribunal’s decision refusing her appeal against the Secretary of State’s refusal of Personal Independence Payment. The First-tier Tribunal had decided the matter on the papers and later refused to set aside its decision after a hearing at which the appellant did not attend, having been told that attendance was unnecessary. The Secretary of State’s representative relied on undisclosed Home Office information said to show that the appellant lacked recourse to public funds. The appellant relied on a 2001 Home Office letter granting indefinite leave to remain.

The Upper Tribunal considered whether the First-tier Tribunal had acted fairly and whether the appellant was subject to immigration control when the Secretary of State made the decision.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law and was set aside under section 12 of the Tribunals, Courts and Enforcement Act 2007. The Upper Tribunal remade the decision and allowed the appellant’s appeal against the Secretary of State’s decision.
2. Whether a person is subject to immigration control within section 115(9) of the Immigration and Asylum Act 1999, and consequently excluded from entitlement to Personal Independence Payment by regulation 16 of the Social Security (Personal Independence Payment) Regulations 2013 and section 77(3) of the Welfare Reform Act 2012, is a question of fact for the tribunal.
3. Procedural fairness required the appellant to have an opportunity to answer the Secretary of State’s new oral submission and the Home Office material relied on at the November hearing. The First-tier Tribunal should have adjourned the matter and used its case-management powers to require disclosure of the material to the Tribunal and the appellant.
4. Under rule 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, the Tribunal must keep under review whether it is fair to proceed without an oral hearing or in a party’s absence. Consent to determination on the papers does not remove that obligation, and adequate reasons must be given for proceeding in that way.
5. The First-tier Tribunal also failed to perform its fact-finding function. It gave no adequate or rational explanation for preferring the Secretary of State’s asserted Home Office information over the appellant’s documentary evidence. Public officials can make mistakes, and a tribunal must not abdicate its decision-making responsibility.
6. The Secretary of State subsequently accepted that the appellant had held indefinite leave to remain since 2001. She was therefore not subject to immigration control at the relevant date and was entitled to claim Personal Independence Payment.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed; the First-tier Tribunal’s decision of 15 June 2023 and its refusal to set it aside were set aside for error of law. The decision was remade in the appellant’s favour.
• First-tier Tribunal (Social Entitlement Chamber): appeal against the Secretary of State’s decision of 31 May 2022 dismissed on 15 June 2023; the Tribunal refused to set aside that decision following the hearing on 30 November 2023.
• Secretary of State for Work and Pensions: decision dated 31 May 2022 that the appellant was subject to immigration control and not entitled to Personal Independence Payment.