Upper Tribunal Allows Appeal Against PIP Decision Refusal
📌 In brief
The Upper Tribunal allowed an appeal challenging a refusal to set aside a PIP decision due to procedural irregularities, highlighting the significance of adhering to proper notice procedures under Tribunal rules.
⚖️ Legal holding
A decision refusing to set aside a PIP decision must be set aside if it breaches procedural requirements under the Tribunal's rules.
📖 What the law says
This section outlines the procedures when an appeal is made to the Upper Tribunal. If the Upper Tribunal identifies an error in law in a decision made by the First-tier Tribunal, it can choose to set aside that decision. If it does set the decision aside, it must then either send the case back to the First-tier Tribunal with instructions for reconsideration or remake the decision itself.
Plain-English explanation — does not replace advice from a solicitor.
📖 Technical summary
The Upper Tribunal allowed an appeal against a decision refusing to set aside a PIP decision due to procedural irregularities.
📜 Headnote Official document
The Upper Tribunal allowed an appeal against a decision refusing to set aside a PIP decision due to procedural irregularities, emphasising the importance of proper notice under Tribunal rules.
📚 Full judgment Official document
CPIP/2416/2019
MB v SSWP (PIP) [2020] UKUT 296 (AAC)
IN THE UPPER TRIBUNAL
Case No CPIP/2416/2019 ADMINISTRATIVE APPEALS CHAMBER
Before UPPER TRIBUNAL JUDGE WARD
Decision: The appeal is allowed. The decision of the First-tier Tribunal (“[NAME]”) on 1 February 2018 under reference SC200/17/00697, refusing to set aside the substantive decision of [NAME] dated 18 January 2018, involved the making of an error on a point of law and is set aside.
Acting under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 I remake the decision in the following terms:
The decision of 18 January 2018 is set aside.
So far as necessary, I dismiss the application for permission to appeal against the decision of 18 January 2018 as in consequence of my decision there is no longer anything to appeal against.
REASONS FOR DECISION
1. Both the appellant and the [NAME] have expressed the view that the decision dated 1 February 2018 involved the making of an error on a point of law and have agreed to a decision in the terms above. That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail. I need only deal with the reason why I am setting aside the decision of 1 February.
2. The appellant had appealed to [NAME] against a decision dated 9 March 2017 which had awarded her the daily living and mobility components of personal independence payment, each at the standard rate. That decision was a supersession, to the appellant’s advantage, of an earlier decision under which the mobility component had not been awarded. She has diabetes insipidus and, as found by [NAME], a degree of orthostatic intolerance. It is apparent from the level and circumstances of the award descried above that her conditions caused her a material degree of limitation and that those limitations at least in some respects had increased. [NAME] refused the appeal.
3. Quite early in the hearing before [NAME] the appellant complained of an episode of tachycardia. She was offered a pillow and lay on the floor for a few minutes before confirming that she did not require the adjournment offered and was able to resume.
4. The appellant subsequently applied for [NAME]’s decision to be set aside on two grounds, only one of which need detain us: that she had attended the hearing at short notice and that her “support” was unable to attend.
CPIP/2416/2019
MB v SSWP (PIP) [2020] UKUT 296 (AAC)
5. On 1 February 2018 a District Tribunal Judge (“DTJ”) refused the application for set aside. The material part of that decision was:
“The hearing was originally listed for 2 o’clock on 18.1.18. Owing to an
administrative error it became apparent that another case had been
listed for the same time. On 16.1.18 the appellant confirmed when
asked that she was able to attend the hearing at 10.00a.m. A letter
was sent to her confirming that the hearing was listed for 10 a.m. The
panel on the day asked her whether she was able to continue with the
hearing and she confirmed that she was…
My decision is consistent with the Overriding Objective according to
which the Tribunal must decide cases taking account of a number of
factors: fairness, justice, seeking flexibility in the proceedings,
ensuring that the parties are able to participate fully, avoiding delay. …
The fact that the appellant attended without her support and that the
time of the appeal was changed from 2pm to 10am is not a procedural
irregularity.”
6. Rule 29 of [NAME]’s rules of procedure provides:
“(1) The Tribunal must give each party entitled to attend a hearing
reasonable notice of the time and place of the hearing (including any
adjourned or postponed hearing) and any changes to the time and
place of the hearing.
(2) The period of notice under paragraph (1) must be at least 14 days
except that—
(a) …; and
(b) the Tribunal may give shorter notice—
(i) with the parties' consent; or
(ii) in urgent or exceptional circumstances.”
7. [NAME]’s case management system contains the following entries (I have replaced the names of staff members with initials and removed phone numbers):
27 17/01/2018 11:06:49 [NAME] on mobile number advising that hrg time tomorrow has been changed to 10.00am. A letter has also been sent by Cardiff, please come at 10.00am tomorrow. I asked to phone me on xxxxx xxxxxx if she has a problem coming at the earlier time. 28 16/01/2018 15:01:04 [NAME] I have issued a letter to the appellant to advise the change of hearing time from 14:00 to 10:00
8. It is the appellant’s case that the call from [NAME] went to her answerphone and that she did not receive the message until 5.30pm or so.
CPIP/2416/2019
MB v SSWP (PIP) [2020] UKUT 296 (AAC)
9. Rule 29 requires reasonable notice to be given of (among other things) changes to the time of the hearing. There is no suggestion that the circumstances of the short notice change of timing were urgent or exceptional: they appear to have been an administrative error resulting in the double-listing of cases for the same time. Notice has to be at least 14 days unless the party consents.
10. I do not read [NAME]’s note as contradicting the appellant’s evidence that the message went to her answerphone. As she points out, there may on occasion be a delay in the notification coming through on one’s phone that a message has been received. In any case, even if the call had been received at the time [NAME] made it, it would still have amounted to impermissible short notice unless consent was obtained.
11. I have not been able to find any consent given in advance to the change of time. I have not been taken to any evidence (and cannot myself find any) to support the DTJ’s finding that “on 16 .1.18 the appellant confirmed when asked that she was able to attend the hearing at 10.00 am”. Indeed, if she had, it is not clear what the reason for the phone call on 17 January would have been.
12. Even if one were to proceed on the basis that a breach of rule 29(2)(b) can in principle be waived on the day, in my view [NAME] would have to take great care to ensure that a claimant, who may have felt they had little option but to attend, was giving genuine and informed consent. The panel’s enquiry (noted by the DTJ) appears to have been about the appellant’s health following her tachycardic episode rather than addressing whether she agreed to waive the short notice of the late change.
13. Was the apparent error of law material? A party to tribunal proceedings may well wish to have a supporter there, not to act as a representative but to provide moral support, to help with communication or to help the party by making suggestions (as a “McKenzie friend” would). Given the appellant’s difficulties described in [2], there may have been other reasons why she wished to be accompanied by a supporter also. At the oral hearing of the permission application before me she indicated (and I see no reason to doubt) that she had been intending to be accompanied by her sister, but because of the late change of time her sister had been unable to change her work schedule.
14. I accordingly conclude that to the extent identified in the above paragraphs, the refusal to set aside is in material part unsupported by evidence and that the conclusion that the change of time “is not a procedural irregularity” cannot stand in the light of r.29 and that those errors of law were material. It is common ground between the parties that the DTJ’s decision not to set aside must be reversed. That means [NAME]’s substantive decision is set aside and the appeal must be re-heard.
CPIP/2416/2019
MB v SSWP (PIP) [2020] UKUT 296 (AAC)
15. I had originally stayed the application for permission to appeal against the substantive decision (in respect which a late application for a statement of reasons had been permitted, resulting in one being issued on 7 August 2019) pending resolution of the appeal in relation to the decision not to set aside. The challenge to the substantive decision no longer has any relevance.
(signed)
C.G.Ward Judge of the Upper Tribunal 21 October 2020
⚖️ What tends to weigh in cases like this
✅ Tends to be accepted
- The appellant did not receive sufficient notice of the change in hearing time.
- The District Tribunal Judge's decision was based on insufficient evidence regarding the appellant's consent to the change in time.
- The appellant's right to have a supporter present was compromised due to the late change in hearing time.
- The District Tribunal Judge's conclusion that the change in time was not a procedural irregularity violated rule 29 of the Tribunal's rules of procedure.
- The lack of proper notice and the inability to have a supporter present constituted procedural irregularities that affected the fairness of the hearing.
❌ Tends to be rejected
- The appellant confirmed she could attend the hearing at the new time.
- The Tribunal's decision to proceed with the hearing despite the short notice was deemed fair and just.
- The appellant's health issues during the hearing did not affect her ability to continue.
- The change in hearing time was due to an administrative error and not an urgent or exceptional circumstance.
- The appellant's desire to have a supporter present was considered but not deemed essential for the fairness of the hearing.
Patterns observed in similar cases in this collection — every case is unique.
❓ Frequently asked questions
What did this decision decide?
The Upper Tribunal allowed the appeal against a decision refusing to set aside a PIP decision due to procedural irregularities.
What was the dispute about?
The dispute centered around whether the refusal to set aside a PIP decision was valid given the procedural irregularities in the notice provided to the claimant.
How did the court decide, and why?
The court decided to allow the appeal, concluding that the refusal to set aside the PIP decision was invalid due to the breach of procedural requirements under the Tribunal's rules.
Which laws or rules were applied?
The Tribunals, Courts and Enforcement Act 2007 s.12(2)(b) and rule 29 of the Tribunal Procedure Rules were applied.
What was the argument that mattered most?
The argument that mattered most was that the refusal to set aside the PIP decision was invalid due to the lack of proper notice to the claimant as required by the Tribunal's rules.
Was the decision for or against the person who brought the case?
The decision was for the person who brought the case, allowing their appeal and setting aside the refusal to set aside the PIP decision.
What does this mean for someone in a similar situation?
For someone in a similar situation, it means that the procedural requirements for notice must be strictly followed to avoid having decisions set aside.
What evidence or documents mattered?
The evidence and documents that mattered included the claimant's evidence regarding the notice received and the Tribunal's rules regarding notice requirements.