[2025] UKUT 132 (AAC)

In a helpful submission from Egle Smith dated 13 June 2024, the Secretary of State supported LB’s appeal to the Upper Tribunal on the basis of the grounds set out at paragraph 10(a)(i), (b), and (c) above.

The appeal ground at paragraph 10(a)(i): the FTT addressed exceptional circumstances at paragraphs 26 to 28 of its Statement of Reasons. The Secretary of State considers the FTT failed to explain its reasoning adequately in these paragraphs, including failing to explain why it decided there was no substantial risk if LB were found not to have limited capability for work.

The appeal ground at paragraph 10(b): The Secretary of State’s position is that the hearing recording confirms that LB asked repeatedly, during the hearing, for questions to be repeated, but on several occasions, the Tribunal member would move on to the next question instead of repeating the one they had just asked. The Secretary of State’s representative argues that FTT failed to meet the requirements in the overriding objective (rule 2 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 – “the 2008 Rules”) to deal with cases fairly and justly by ensuring, so far as possible, the claimant could fully participate in the proceedings. This was because LB was not given the opportunity to answer all the questions the FTT asked him.

The appeal ground at paragraph 10(c): The Secretary of State’s position is that while paragraphs 16 and 17 the Statement of Reasons reiterates LB’s position on the effect of his planned operation, the FTT did not analyse that position. The Secretary of State’s representative argues this means the FTT’s reasons were inadequate.

In terms of paragraph 10(a)(iii) above, the Secretary of State made submissions that the FTT made an error of law in terms of referring to the incorrect ESA regulations in its Statement of Reasons. However, the Secretary of State’s representative argues that this error was immaterial because the FTT applied the equivalent tests in the ESA regulations 2008, and the wording of these is almost identical to the ESA regulations 2013.

The Secretary of State’s representative invites the Upper Tribunal to set aside the FTT’s decision as containing material errors of law in terms of paragraph 10(a)(i), (b) and (c) above, and to remit it to a new FTT to decide.