Secretary of State for Work and Pensions v SS (DLA)

Factual and Procedural Background

The case concerns an appeal by the Secretary of State against a decision of the First-tier Tribunal dated 22 January 2010. The original tribunal decision related to a claim for disability living allowance (DLA) disallowed from 25 April 2009. The First-tier Tribunal had allowed the claimant's appeal in part by awarding the lowest rate of the care component for the period from 25 April 2009 to 24 April 2014. The Secretary of State was granted permission to appeal on a specific legal point regarding the tribunal's decision notice and statement of reasons.

The Upper Tribunal found an error of law in the First-tier Tribunal's decision notice, specifically concerning whether the decision was unanimous or by majority, and set aside the decision. The case was remitted to a new tribunal within the Social Entitlement Chamber for a complete rehearing with fresh consideration of the evidence and submissions, and with directions that no member of the original tribunal participate.

Legal Issues Presented

1. Whether it is an error of law for a First-tier Tribunal decision notice and statement of reasons not to state if the decision was made by a majority rather than unanimously.
2. Whether, if a decision is by majority, the statement of reasons must include the reasons of the dissenting member.
3. The implications of an inaccurate decision notice stating unanimity when the decision was in fact by majority.

Arguments of the Parties

Appellant's Arguments

• There is no explicit duty under the Tribunal Procedure Rules to record that a decision was reached by majority or to include reasons of dissenting members in the statement of reasons.
• However, it is arguable that a statement of reasons failing to include such information is inadequate and constitutes an error of law, as it prevents parties from understanding the minority view and any flaws in the majority's reasoning.

Appellee's Arguments

• The appellee's reply did not directly address the legal point about majority decisions but focused on supporting entitlement to the lowest rate of the care component.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analysed the statutory framework and procedural rules governing tribunal decisions. It noted that under article 8 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008, a tribunal composed of multiple members may decide by majority, with the presiding member having a casting vote if necessary. However, the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 do not require the decision notice to state whether the decision was unanimous or by majority, unlike earlier regulations applicable before November 2008.

The court reasoned that there is no general obligation for tribunals to disclose whether decisions are unanimous or by majority, and this aligns with practice in other courts and tribunals. Nonetheless, if a tribunal chooses to state that a decision is unanimous or by majority, that statement must be accurate.

In this case, the decision notice indicated unanimity, but the evidence showed the decision was by majority. The statement of reasons did not correct this inconsistency or provide reasons for the dissenting member. The court held this to be an error of law. It further explained that such an error requires setting aside the decision even if the losing party is not demonstrably disadvantaged, because an inaccurate statement about unanimity misleads the parties.

The court declined to accept the appellant's broader submission that failure to include minority reasons always constitutes an error, emphasizing that any change to procedural requirements should come through rule amendments.

Finally, the court clarified that the rehearing must be a fresh evaluation of evidence without being bound by previous findings, and no member of the original tribunal may participate.

Holding and Implications

The Upper Tribunal ALLOWED the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision dated 22 January 2010, and remitted the case for rehearing before a differently constituted tribunal.

The direct effect is that the claimant’s appeal against the Secretary of State’s decision of 11 May 2009 will be reconsidered afresh. No new precedent beyond the specific procedural ruling was established. The ruling clarifies that if a tribunal decision notice inaccurately states unanimity when the decision was by majority, and this is not corrected in the statement of reasons, an error of law arises requiring the decision to be set aside.