DECISION
OF THE UPPER TRIBUNAL
ADMINISTRATIVE
APPEALS CHAMBER
Before: Upper
Tribunal Judge Paula Gray
DECISION
This
appeal by the claimant is dismissed.
Permission
to appeal having been given by me on 29 April 2015 in accordance with the
provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act
2007 and rule 40(3) of the Tribunals Procedure (Upper Tribunal) Rules 2008 I do
not set aside the decision of the First-tier Tribunal sitting at Fox Court and
made on 28 November 2014 under reference SC 242/14/04704. It does not contain
a material error of law, and it stands.
REASONS
Background
- This appeal
concerned only the appellant’s entitlement to the mobility component of
DLA. There was no dispute about entitlement to the care component.
- I
granted permission to appeal saying
3 In this case the FTT
was dealing with a decision refusing to supersede an award of DLA to the
appellant who had applied on 12 February 2014 for the higher rate of the
mobility component based upon a change of circumstances. The FTT was of the
view that, due to his current age the applicant was required to show that his
entitlement to that component would have existed in 2004 prior to him turning
65. They saw this as the legal issue and their function as being to analyse
the evidence with a view to establishing whether or not that was the case. They
dismissed the appeal on the basis that it was unlikely that the appellant was
virtually unable to walk at that stage.
4 The appellant had
chosen not to attend an oral hearing, citing his being “housebound” through
disability as the reason. Contrary to the grounds of appeal the FTT did not
explicitly accept that this was so; their comment, which is quoted rather out
of context in the grounds of appeal, was to the effect that the applicant said
he was housebound and therefore could not attend, and was not an assertion that
this was in fact so.
5 Nonetheless it seems to
me that given what the FTT perceived as the critical issue in the case, and
their view that contemporaneous documentary evidence would be more valuable
than the oral evidence of the appellant as to his circumstances back in 2004,
and given the limited amount of such evidence in the tribunal bundle, there is
an argument that the tribunal should have considered adjourning for further
oral evidence. I grant permission to appeal on that basis, but I do not shut
down the argument put forward as to whether the FTT should have considered a
domiciliary hearing to facilitate the appellant’s participation in the
proceedings under rule 2 Tribunal Procedure (First Tier Tribunal) (SEC) Rules
2008 ( the FTT procedural rules).
6 The Secretary of State
shall make submissions as to the points raised and in respect of the
appropriateness of a domiciliary hearing.
- Generally
- With regard to any implications as to a
hearing generally being expected to be held in public (rule 30 (1), the
FTT procedural rules)
- In this case and
- Whether, in relation to the exercise of
the overriding objective, the FTT is able to consider public resources,
either on a freestanding basis or in conjunction with the concept of
proportionality
- Given that the appellant applied with the
assistance of his then representative for a supersession of his previous
award in 2013, and by decision made on a 7 October 2013 his award was
increased to include highest rate care from 8 July 2013 but not the higher
rate of the mobility component, and that decision does not seem to have
been appealed, is there any principle of law that prevents the appellant effectively
re-arguing the facts upon which that decision was based in the application
for supersession which underlies this appeal.
Background
matters
- The appellant
(or claimant) was born on 28/6/1939, becoming 65 on that date in 2004.
- His initial DLA
award was made from the date of claim 31/12/1998. It was for middle rate
care and lower rate mobility. The lower rate of the mobility component was
in payment because, in addition to the physical problems that have been
the focus of this appeal the appellant has a psychiatric condition which
would seem to have been the basis of the original awards made.
The first
supersession application
- The claimant contended
for an increase in his award to include the higher rate of the mobility
component in an application for supersession made on 24/7/2006. In the
application form he dealt with his ability to walk outdoors and explained
his walking difficulties due to joint pain. He said that he could at that
time walk 60 metres or yards, that he would take about 10 minutes to
accomplish that, and that the difficulties existed seven days a week.
- Documents in
the bundle before me (page 211, a screen print) show that the Secretary of
State’s decision maker refused the application; that decision was unsuccessfully
appealed to the FTT, the appeal being concluded on 21/2/2007.
The second
supersession application
- An
application to supersede that decision was made on 8/7/2013. This
succeeded in part, resulting on 7/10/2013 in an increase in his middle
rate care award to an award at the highest rate from the date of the
application; however his lower rate mobility award was not increased.
This, the
third supersession application
- The claimant
made a yet further supersession application on 12/2/2014. The decision
maker refused to supersede on 8/7/2014, and he appealed.
- The decision
maker and the FTT considered the issue to be whether he had established
that his walking problems existed prior to his attaining the age of 65 at
a level consistent with an award of the higher rate of the mobility
component; essentially whether or not he was in fact virtually unable to
walk prior to 28/6/2004.
- The FTT found
that he had not shown that to be the case and his appeal was dismissed.
The
case before me
The respective
positions of the parties
The
appellant
- The arguments
made in the application for permission to appeal by Mr Malik of the
Coventry Law centre, who acts for the appellant, stand as the appellant's
final position. There has been no comment on the matters set out in the
Secretary of State's submission, or on the matters that I raised in my
grant of permission.
- The omission
of the FTT to consider whether the appellant's GP records should be
obtained was said to be an error of law, given the inquisitorial role of
the tribunal, and a material error since such records could have provided
contemporaneous evidence of the appellant's condition on 28 June 2004 when
the appellant became 65, thus helping the tribunal to decide whether there
had been a relevant change of circumstance since the awarding decision.
It was argued that the appellant, who was then without representation, did
not appreciate that medical records could advance his case.
- The absence
of an enquiry as to the appropriateness of a domiciliary hearing is said
to be an error of law. The assumption the FTT made that the available contemporary
documentary evidence was likely to be more accurate than the appellant’s oral
evidence on the point was misplaced; the appellant has instructed his
representatives that he would be able to explain what his mobility
problems were in June 2004 and how they had changed since 1999.
- It was wrong
to rely on the inference that he was not housebound immediately prior 2007
to answer the question as to whether he was virtually unable to walk in
2004, since that test did not require a person to be housebound.
The Secretary of State
- The Secretary
of State does not support the appeal. In relation to whether the tribunal
could consider the matter at all, other than indicating that the 13 month
time limit for appealing the previous (2013) decision had concluded, no
observations are made.
- On the issue
of whether or not the tribunal should have adjourned it is argued that the
content of the statement generally shows that the provisions of rule 27 of
the tribunal procedural rules were properly considered. The appellant
indicated that he did not wish to attend, and the tribunal were entitled
to respect that view if they felt that they were able to decide the matter
fairly without an oral hearing. Given their view that oral evidence would
not shed a light on the matter they had to consider, and they were
entitled to take that view and continue as they did.
- As to the
domiciliary visit, the previous points are once again prayed in aid, and
in addition, in response to my request for observations as to the
appropriateness of domiciliary visits in general, observations that I made
in the case of KO-v- Secretary of State For Work and Pensions (ESA)
UKUT [2013] 544 (AAC) are set out. Adopting my reasoning there it is
submitted that a domiciliary visit will only rarely be appropriate.
- As to the
impact of holding domiciliary hearings on the principle of public justice
the Secretary of State brings the case of CSE/912/2013 to my attention, whilst conceding
that it was concerned with somewhat different issues.
- Finally the
Secretary of State opines, in response to the issue I raised as to whether
a tribunal is able to take public resources into account in its
deliberations under rule 27, that it can.
The erroneous
FTT approach
- The FTT
proceeded on the basis that that because the appellant had an existing DLA
award, in order for him to qualify for the higher rate mobility component
he had to show that his walking ability met the test for an award of that
component prior to his turning 65, which occurred in June 2004, some ten
years prior to the date of hearing.
- In fact it
seems to me that the tribunal approach gave the appellant an opportunity
that in law did not exist. However since to a large extent the case has
proceeded on the basis that this was the proper approach I have considered
all matters that I referred to in the grant of appeal; the appellant does
not succeed in relation to any of the points made on his behalf.
- I must
initially explain the legal position regarding awards of the higher rate
of the mobility component for those aged over 65.
The legal framework
- I begin with
Section 75 of the Social Security (Contributions and Benefits) Act 1992, (SSCBA)
which sets out the position of entitlement for those aged over 65. The
section is entitled "Persons who have attained pensionable age"
and the relevant parts state:
75 (1)
“Except to
the extent to which regulations provide otherwise, no person shall be entitled
to either component of a disability living allowance for any period after he
attains the age of 65 otherwise than by virtue of an award made before he
attains that age.”
(2) Regulations may provide in relation
to persons who are entitled to a component of the disability living allowance
by virtue of subsection (1) above that any provisions of this act which relate
to disability living allowance….
(a) shall have effect subject to modifications,
rejections or amendments;
or
(b) shall not have effect.
- The Social
Security (Disability Living Allowance) Regulations 1991(which I refer to
as the Regulations or the DLA Regulations) provide the detailed framework
in relation to awards. Regulation 3 makes provision
for those aged over 65. I pause to observe that unlike the SSCBA the
regulations have not been amended to substitute ‘pensionable age’ for the
age of 65, but that is immaterial in relation to the matters arising
here. Regulation 3 states
Age 65 or
over
3.—(1) A person shall not be precluded from entitlement to either
component of disability living allowance by reason only that he has attained
the age of 65 years, if he is a person to whom paragraphs (2) and (3) apply.
(2) Paragraph (3) applies to a person who–
(a)
made a claim for disability living allowance before he attained the age of 65,
which was not determined before he attained that age, and
(b)
did not at the time he made the claim have an award of disability living
allowance for a period ending on or after the day he attained the age of 65.
(3)
In determining the claim of a person to whom this paragraph applies, where the
person otherwise satisfies the conditions of entitlement to either or both
components of disability living allowance for a period commencing before his
65th birthday (other than the requirements of section 72(2)(a), or, as the case
may be, section 73(9)(a) of the Act (3 months qualifying period)), the
determination shall be made without regard to the fact that he is aged 65 or
over at the time the claim is determined…….
(4)
Schedule 1, which makes further provision for persons aged 65 or over shall
have effect.”
- This provides
for the situation where an application for DLA is made prior to an
applicant becoming 65 but the decision is made after that date, but that
is not the position here.
- Further
provisions as to those aged over 65 are made under subparagraph (4) by way
of Schedule 1.
Schedule 1
- Schedule 1 to
the Regulations is entitled "Persons aged 65 and over” and deals in
detail with the complexities with can arise due to what appears to be the
ironing out of the discrepancies between DLA and the more onerous criteria
for receipt of Attendance Allowance which is payable to those who claim
after they are 65, and the preservation of the position of those who
qualified for DLA due to disability which gave rise to significant needs in
their younger years.
- I
set out the parts of Schedule 1 with which I need to deal.
PERSONS
AGED 65 AND OVER
Revision or supersession of an award made before
person attained 65
1.—(1) This paragraph applies where–
(a) a person is aged 65 or over;
(b)
the person has an award of disability living allowance made before he attained
the age of 65;
(c)
an application is made in accordance with section 9 of the 1998 Act or section
10 of that Act for that award to be revised or superseded and
(d) an adjudicating authority is satisfied that the decision
awarding
disability living allowance ought to be revised or superseded.
(2)
Where paragraph (1) applies, the person to whom the award relates shall not,
subject to paragraph (3), be precluded from entitlement to either component of
disability living allowance solely by reason of the fact that he is aged 65 or
over when the revision or supersession is made.
(3) Where the adjudicating authority determining the application
is
satisfied
that the decision ought to be superseded on the ground that there has been a
relevant change of circumstances since the decision was given, paragraph (2)
shall apply only where the relevant change of circumstances occurred before the
person attained the age of 65.
Revision or supersession of an award other than a
review to which paragraph 1 refers
2. References in the following paragraphs of this Schedule to a
revision or supersession of an award refer only to those revisions or
supersessions where the awards which are being revised or supersession were
made–
(a)
on or after the date the person to whom the award relates attained the age of
65; or
(b)
before the person to whom the award relates attained the age of 65 where the
award is superseded by reference to a change in the person’s circumstances
which occurred on or after the day he attained the age of 65.
Aged 65 or over and award of lower rate mobility component
6.—(1) This
paragraph applies where a person on or after attaining the age of 65 is
entitled to the mobility component payable at the lower rate specified in
regulation 4(2) and–
(a)
an adjudicating authority is satisfied that the decision giving effect to that
entitlement ought to be revised under section 9 of the 1998 Act or superseded
under section 10 of that Act, or
(b)
the person makes a renewal claim for disability living allowance.
(2)
A person to whom this paragraph applies shall not be precluded,
solely
by reason of the fact that he has attained the age of 65, from
entitlement
to the mobility component but in determining that person’s entitlement to that
component section 73(11) of the Act shall have effect in his case as if
paragraph (a), and the words "in any other case" in paragraph (b),
were omitted.
The
appellant’s position
- This
appellant had been in receipt of an award of the lower rate of the mobility
component, as well as the care component at the middle rate, prior to his
becoming 65. Following his 65th birthday he made two applications for supersession,
but no change was made to the mobility award; the most recent decision not
to change that aspect of the award implicitly accepted that the earlier
decision was factually correct.
- As the
Secretary of State points out in his submission, that decision is now unable
to be the subject of an appeal. The matter that I am dealing with arises
out of a fresh application to supersede it.
- The
application relies on a pre-2006 change of circumstance; it alleges that
claimant was been virtually unable to walk in or prior to 2004 when he
attained 65. It is far too late for the appellant to apply for a revision
of any earlier decision. The only application he can make is for
supersession, and given the circumstances that he put forward the only available
ground for supersession is that the decisions of 2006 and 2013 were made
in ignorance of or under mistake of fact.
The workings
of the Schedule
Schedule 1
Paragraphs 1
and 2
- Paragraph 1
of the Schedule ameliorates the prohibition on entitlement in section 75
(1) SSCBA in respect of either component where an award was made before
the person attained 65, and provides for either component to be increased
or acquired after the age of 65 where there has been a relevant change of
circumstances which occurred before the person attained the age of 65.
- Although this
appellant had an award prior to his attaining 65 and alleges that a
relevant change occurred before he attained 65 paragraph 1 is not a
complete answer, as the subsequent paragraphs cover the position where an
award is made after that birthday, and an award is not limited to an
initial award. An amended Schedule came into effect in October 1999, soon
after the major reforms of the 1998 Social Security Act, which abandoned
the concept of review of decisions, substituting the regime of revision
and supersession. The drafting perhaps reflects the fact that these concepts
were in their infancy. The decision of
Upper Tribunal Judge Mesher in CDLA/301/2005 deals with some of the
drafting difficulties. He points out at paragraph 25
the language of paragraph 1(1)(c) is technically
inaccurate, in that one could never apply for review of an award, and cannot
now apply for revision or supersession of an award in accordance with section 9
or 10. One can only apply for revision or supersession of a decision.
- That point is
important here. For paragraph 1 to permit the appellant to argue that he
met the criteria for a higher rate mobility award prior to attaining 65 he
must rely upon the original award made prior to his attaining 65, but
there are two decisions subsequent to his attaining 65; the decision on
the appellant’s supersession request in 2006 and the further decision made
on 8/7/2013 on his similar request in 2013. What he was in fact able to
apply to change was the most recent decision of 2013. It amounted to a
fresh award made after he was 65.
- Accordingly
paragraph 2(a) operated to apply the subsequent paragraphs of the
Schedule, and make him subject to the rule set out in paragraph 6.
Paragraph 6
- Set out
above, this covers the appellant’s situation; he was entitled to the lower
rate of the mobility component on and after attaining the age of 65. The
question of supersession arose under paragraph (6 (1) (a) therefore
subparagraph (2) applied to effectively cap any mobility award at the
lower rate. That sub-paragraph operates to amend section 73(11) SSCBA so
that it reads “the weekly rate of the mobility component payable to a
person for each week in the period for which he was awarded the component
shall be the lower rate”. That is the effect of the removal of the words
set out in paragraph 6 (2) from section 73 (11).
- This means
that even where it can be shown that the recipient of a lower rate
mobility award in fact qualifies or qualified for an award of the mobility
component at the higher rate, the weekly rate of any mobility award is the
lower rate.
- Whilst the
adjudication and appeal process is left in place the result of any such
adjudication cannot be to increase the award, and as such any application
for an increase is futile. My analysis does not indicate that the case is
one in which the FTT lacks jurisdiction, but arguably an appeal could be
dealt with at FTT level by applying the provision to strike out the appeal
under rule 8 (3)(c) as having no reasonable prospects of success.
- That would
have been an available approach to a FTT had the DWP, as they were
entitled to do, treated the 2014 supersession application, made some 4
months after the Secretary of State’s 2013 decision increasing the care
award to the highest rate but refusing to increase the mobility component,
as a late attempt to appeal that decision; the analysis that I set out
above would have applied equally to an appeal against the earlier, 2013
decision.
- For
completeness I mention a reported decision of Upper Tribunal Judge
Levenson R(DLA) 1/09 in which, having considered the purpose of the
legislation and the interplay between DLA and AA in some detail, he
rejected an argument that the concept of an age 65 cut-off was
discriminatory or otherwise in breach of human rights law.
An error of
law, but not a material error
- In the light
of the above analysis the decision of the tribunal to entertain the arguments
in relation to mobility was wrong; however the decision to which it came,
that there would be no change to the existing award, was the only possible
legal conclusion. For me to set their decision aside because it contained
an error of law and substitute a decision to the same effect would be
futile, so I leave the decision dismissing the appeal to stand.
- In the
circumstances the procedural matters are of secondary importance; indeed
my observations become, in legal language, obiter dicta: ‘by the
way’ remarks not critical to the outcome. Nonetheless I will deal with
the procedural arguments because they formed the major part of the
submissions before me.
The
procedural issues
- I begin by
saying that I see the force in Mr Malik's observations in respect of the
inquisitorial nature of the tribunal, and in his references to the decision
in Mongan –v- Dept for Social Development [2006] NICA 16, a
decision of the Court of Appeal in Northern Ireland, which has echoes in
the later case in the Court of Appeal in England and Wales in Secretary
Of State for Work and Pensions-v- Hooper [ 2007] EWCA Civ 495.
- Contrary to
the view expressed by the Secretary of State’s submission it cannot be
necessary for an application to be made for the obtaining of medical
records by the tribunal or the facilitation or participation in the
hearing by a domiciliary visit or other means of assistance prior to a
tribunal considering whether it is just to take any particular steps to
facilitate participation. There must, in an appropriate case, be a
freestanding obligation on an inquisitorial tribunal to consider such
matters and I reject the points made to the contrary by M Jagger on behalf
of the Secretary of State.
- That does not
mean that a tribunal must initiate such enquiries in every case; it need
not treat litigants who are unrepresented as if they invariably needed
help and guidance. The tribunal process does not consist of the hearing
alone. The administrative arm provides information and options to an
appellant at the outset and where there is no contra indication in the
case papers the tribunal can rely upon the choices a litigant has made.
Many appellants do not want to be present at a hearing; they are used to
decisions in respect of benefit matters being made without their oral
input and are happy to make their points on paper. That is a legitimate
position to adopt; it does not necessarily indicate that the person does
not know any better, but the tribunal must be alert to the possibility of
a genuine lack of understanding of the possibilities. As Upper Tribunal Judge Lane pointed out in AT-v-SSWP[2010] UKUT 430 (AAC)
10
In the Social Entitlement Chamber,
where claimants tend to be unrepresented and often disadvantaged in a variety
of ways, it may well be necessary for a tribunal to override an appellant’s
choice in order to do justice. This may occur, for example, where the
tribunal notices (or should have noticed) a material point which could affect
the outcome of the case which a layman would not appreciate, or where the
tribunal believes the appellant may have evidence whose significance he does not
understand.
46. Similarly the tribunal might wish
to find a way to enable someone who mentions an obstacle in the way of their
attending, the chance to do so. What is suggested here is that a domiciliary
hearing was the only way to facilitate participation.
A
domiciliary hearing?
- As I said in
the case of KO-v-
Secretary of State For Work and Pensions (ESA) UKUT [2013] 544 (AAC), (KO-v-SSWP) cited in the
submission of the Secretary of State, the position has changed in recent
years in relation to domiciliary hearings.
- There are
procedures which must be followed which make these hearings difficult to
arrange. Aside from their cost, and the procedure necessitates a full
session being set aside when otherwise a panel of, in this case three,
would be sitting at a venue hearing a number of cases, pre-hearing checks
must be made before a home can become the temporary workplace for a
tribunal and its administrative staff.
- Further,
since 2008 the tribunal procedural rules have crystallised the position
under article 6 ECHR in relation to a fair and public hearing (rule 30 (1)).
The case of CSE/912/2013, whilst not entirely on the point at issue
here, emphasises the importance of justice being done in public, which is
to say at a place to which the public have access and during the course of
the normal business day. There are, however, provisions in the FTT
procedural rules to hold a hearing in private (rule 30 (2)(b)), and that
may be appropriate in cases where the subject matter is particularly
personal or an appellant extremely sensitive, however what appears to be
being called for here is the routine offer of a domiciliary hearing for
somebody because they find it difficult to get around. I cannot accept
that is either necessary or appropriate.
- That position
does not rule out participation for those who would find travel to a venue
difficult. Transport can be arranged; it is unusual for somebody to be
unable to go out at all, given assistance. Technology, including telephony,
can conveniently enable the parties to give evidence and answer questions
without physically attending. I need not elaborate, but I reiterate the
remarks I made in KO-v-
SSWP; the need for a domiciliary hearing
would be wholly exceptional. There is no indication here that, were it
thought to be necessary, arrangements other than holding the hearing at
his home could not have been made to enable the appellant to attend or
otherwise participate.
- In fact the
decision of the tribunal to accept the appellant's election to have the
matter dealt with on the papers, given what they thought to be the compass
of the hearing and their view as to the adequacy of the evidence which
they already had was not unfair, and is sustainable.
Resource
issues
- As to whether
under the procedural rules the wider picture can be taken into account,
that is to say whether administrative resources can be a considered in
relation to the holding of a domiciliary hearing where alternatives might
be available more economically, the Secretary of State argues that they can.
I agree. I find some support for that in the decision of Upper Tribunal
Judge Jacobs in MH-v Pembrokeshire CC [2010] UKUT 28 (AAC) at [20]
and [21]
20. As to delay, that is
only relevant if it is compatible with the proper consideration of the issues.
In any event, the delay would be short and would not cause any prejudice to the
other party.
21. So far I have not
considered the operation of the tribunal system as a whole. This is a
permissible consideration. There would be some impact, as the resumed hearing
of this case might cause other cases waiting for a hearing to be delayed. I
suspect that too much can be made of this. There is surely always some
flexibility in listing and the possibility of cases being substituted if other
cases are adjourned out of a list. Any impact would be minimal. It was not
caused by any deliberate act on the part of the claimant or his mother, merely
their lack of understanding. And there had been no history of delay or tactical
manoeuvring.
- I
respectfully agree with that view. Rule 2 of the Tribunal Procedure
(First-Tier Tribunal) (SEC) Rules 2008 (the procedural rules), which sets
out the overriding objective of the rules which is to enable the tribunal
to deal with cases fairly and justly. Paragraph 2 (2) states that
dealing with a case fairly and justly includes (as is relevant here)
(a) dealing with the case
in ways which are proportionate to the importance of the case, the complexity
of these seas, the anticipated costs and the resources of the parties;
(b) …
(c) ensuring, so far as
practicable, that the parties are able to participate fully in the proceedings
- That is not
to say that resources should be the driving force or that costs trump the
interests of justice. It is a matter of balance. Where there are methods
of enabling participation adequately although they fall short of physical
attendance, and the costs of going the extra mile to enable actual
attendance would be considerable, the tribunal may justifiably prefer an
alternative and more economical method even where a party wishes it to be
otherwise. Hearings must be fair, but that is not to say that every aspect
of a hearing will please those involved; there may be a number of ways in
which a fair platform is created.
- Although the
resources of the Secretary of State are significant in comparison to
members of the public they are not without limit.
- The key to
the decision making process is to deal with the case in a proportionate
manner bearing in mind its importance and complexity as well as the costs
of any arrangements which might need to be made. The tribunal is well
placed, using the detailed information before it and perhaps its special
expertise if dealing with issues of disability, to decide what method of
hearing is appropriate given the particular circumstances of the case and
its own resources. A proper balance between these two aspects which
delivers justice is achievable. Thereafter the Upper Tribunal may consider
whether there has been a breach of natural justice, which is a matter of
law, the issue being ‘whether the claimant was dealt with fairly, not
whether the tribunal came to the one and only perfect conclusion’. (Judge Jacobs L’Ol –v- Secretary of State for Work
and Pensions [2016] UKUT 10 (AAC [36]))
- Whilst a
domiciliary hearing is not impossible it seems to me that it would be a
rare case in which such a hearing was a proportionate method of enabling participation,
and in general other solutions are likely to be preferred.
My
conclusions
- The fatal
misapplication of the law that I referred to above has not led to an
outcome which is wrong. It would accordingly be futile for me to set it aside
only to substitute another decision to the same effect.
Upper
Tribunal Judge Paula
Gray
(Signed on
the original on 25 April 2016)
