HS v Secretary of State for Work and Pensions

A failure to provide an appellant with the tribunal bundle may amount to an error of law, particularly where the appeal was decided on the papers and the tribunal could not confirm that the appellant had received it. Where a First-tier Tribunal decision is set aside and the case is remitted for rehearing, the rehearing is ordinarily a complete reconsideration of fact and law. It is not confined to the grounds of appeal or the evidence previously before the tribunal. The rehearing tribunal must reach its own conclusions and is not bound by the findings in the decision set aside. In a personal independence payment appeal, it must determine entitlement by reference to circumstances obtaining at the relevant decision date, although later evidence may be admitted if it relates to that date.

The appellant appealed against a decision of the First-tier Tribunal (Social Entitlement Chamber), made after a hearing at Leicester on 8 February 2024, concerning his claim for personal independence payment. He and his representative had not received the First-tier Tribunal’s bundle. The appeal was decided on the papers, so the tribunal had no opportunity to confirm that the bundle had been seen before proceeding.

The Secretary of State supported the appeal and accepted that failure to issue the bundle to all parties was an error of law. The Upper Tribunal therefore had to decide whether the First-tier Tribunal decision should be set aside and, if so, the scope of the rehearing.

1. Disposition. The First-tier Tribunal’s decision involved an error of law because the appellant had not received the appeal bundle. It was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, and the case was remitted to a differently constituted tribunal.
2. The appellant’s representative had a duty to follow up the non-receipt of the bundle and pressure of work did not excuse that failure. That duty did not remove the need for a fair procedure, particularly where the appeal had been decided on the papers and the tribunal had not confirmed that the appellant had received the material.
3. The rehearing must be conducted in accordance with KK v Secretary of State for Work and Pensions [2015] UKUT 417 (AAC). It is a complete reconsideration of all relevant issues of fact and law. It is not limited to the grounds on which the earlier decision was set aside, or to the evidence and submissions previously before the tribunal.
4. The rehearing tribunal must reach its own conclusions. It is not bound by findings of fact or law in the decision that has been set aside, and nothing in the Upper Tribunal’s decision indicated the likely outcome.
5. The tribunal was specifically directed to investigate and decide entitlement to personal independence payment on the claim made on 12 April 2023 and refused on 19 June 2023. Under section 12(8)(b) of the Social Security Act 1998, it must not take account of circumstances not obtaining at the relevant time. Later evidence remains admissible where it relates to the circumstances at the date of decision, as reflected in R(DLA) 2 and 3/01.

• First-tier Tribunal (Social Entitlement Chamber): decision dated 8 February 2024 following a hearing at Leicester.
• Upper Tribunal (Administrative Appeals Chamber): decision set aside for error of law and case remitted for rehearing by a differently constituted panel.