A judge has ordered the re-hearing of a benefits appeal after finding the first-tier tribunal went wrong on several points of law. In a withering and sometimes incensed ruling, Nicholas Wikeley, a judge of the upper tribunal, said the benefits repayment challenge had already progressed from a ‘car crash’ to a ‘mini motorway pile-up’: now it had got even worse.
In AF v SSWP ( DLA), Wikeley ruled that the tribunal judge or members who had previously considered the appeal must not be involved in its re-hearing, and set aside the decision of the first-tier tribunal.
‘[My] description of the first-tier tribunal’s conduct of the case might be thought by some to be a touch over-melodramatic,’ he said. ‘But it has undoubtedly got worse. Unusually, I am almost lost for words.’
The present case concerned a decision in 2014 by the secretary of state that a woman was not entitled to disability living allowance, and that she had been overpaid by more than £53,000.
Wikeley ordered the first-tier tribunal to re-hear an appeal in 2015. This tribunal again upheld the Department for Work and Pensions decision.
In his reasons for giving permission for a second appeal, Wikeley opens by simply stating: ‘Oh dear. Oh dear. Oh dear.’ He added it was ‘difficult to know where to start’ with the application for permission to appeal – the same words with which he had started his previous decision.
He said there was an argument the first-tier tribunal had erred in law by considering an adjournment, and that the tribunal had failed to explain its decision.
The grounds of appeal stated the appellant was not even present when the tribunal viewed video evidence. Wikeley said he was ‘speechless’ and agreed this was ‘arguably a breach of natural justice’.
The tribunal was described as displaying a ‘worrying lack of curiosity’ in its approach to criminal proceedings which were dropped due to new evidence.
He ruled that all three grounds of appeal were made out and the tribunal’s decision, which involved ‘multiple’ errors of law, be set aside. His ruling concluded: ‘I hope I do not see this case again.’