17 August 2017: Appeals for failing to attend a medical assessment must be heard by a judge, medical practitioner and disability member

CPIP/903/2017

Appeals for failing to attend a medical assessment must be heard by a judge, medical practitioner and disability member

[2017] UKUT 335 (AAC)

Background

The claimant had been in receipt of the lowest rate of the care component of disability living allowance (DLA) when he was invited to claim personal independence payment (PIP). He had said he could attend a PIP assessment in his home city in the Midlands but not in other cities in the East or West Midlands. He was asked to attend a PIP assessment in another city and did not attend. As a result his PIP claim was refused on the basis of his non-attendance.

A First-tier Tribunal (decided as a paper hearing by a judge sitting alone) upheld the decision and the claimant appealed to the Upper Tribunal

Issue before the Upper Tribunal

Whether a PIP appeal concerning failure to attend a medical assessment can be heard by a judge sitting alone.

Decision 

Judge Wikeley allows the appeal, sets aside the decision, and remits it for rehearing before a different tribunal.

Reasons

Having established an error of law by the FIrst-tier Tribunal for not finding sufficient facts about the claimant’s failure to attend, or giving adequate reasons for its decision, Judge Wikeley considers the requirements for the composition of the First-tier Tribunal and notes that Article 2(1) of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008¬†states that –

‘The number of members of the tribunal who are to decide any matter that falls to be decided by the First-tier Tribunal must be determined by the Senior President of Tribunals.’

In a Practice Statement on the Composition of Tribunals in social security and child support cases in the Social Entitlement Chamber of the Upper Tribunal on or after August 1, 2013, the Senior President states that DLA and PIP appeals ‘must’ be heard by a tribunal comprising –

‘… a Tribunal Judge, a tribunal member who is a registered medical practitioner and a tribunal member who has a disability qualification’.

Whilst there were some exceptions, none applied in this case.

While observing that this is a different position to employment and support allowance appeals involving a failure to attend a medical examination, which are certainly heard by a Judge sitting alone (CH v SSWP [2016] UKUT 6 (AAC)), Judge Wikeley concludes the First-tier Tribunal Judge in this case erred in law in sitting alone.

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