Mistake of fact giving rise to unfairness

Tuesday 3 October 2017

CF v Secretary of State for Work and Pensions (PIP): [2017] UKUT 356 (AAC), UT Judge Gray, 29 August 2017

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CF v Secretary of State for Work and Pensions (PIP): [2017] UKUT 356 (AAC), UT Judge Gray, 29 August 2017

C, the appellant, who was 16 years of age, had been in receipt of disability living allowance when she was invited to transfer to personal independence payment. An award of PIP was refused.  C’s mother, who was her appointee, appealed to a First Tier Tribunal (FTT).

C’s mother attended the hearing and asked for an adjournment to enable the production of a medical report that she told the FTT she had given to her representatives. They had prepared a submission but had not attended the hearing, and the report was absent from the tribunal bundle.

Not only did the FTT refuse the adjournment, but it did not accept the existence of “the alleged report”. The appeal was dismissed. An application to set the decision aside was made but the report was not included until the application was made to the Upper Tribunal (UT) Judge.

The UT Judge allowed the appeal on the ground of a mistake of fact giving rise to unfairness under the tests summarised in E & R -v -Secretary of State for the Home Department [2004] EWCA 49 at [66]. The FTT made a mistake of fact that C did not have an ASD diagnosis based on insufficient medical evidence.

Judge Gray said:

“It is clear … that the FTT did not accept the existence of the diagnostic report. This mistake was of importance due to its likely effect on the treatment of the rest of the mother’s evidence regarding C’s behaviour and her needs.” (para 6).

The UT decision is available here: CF v Secretary of State for Work and Pensions (PIP): [2017] UKUT 356 (AAC), UT, 29 August 2017

Desmond Rutledge is a member of the Administrative and Public Law Team at Garden Court Chambers.

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