UT decision query

David Smith made this Freedom of Information request to Ministry of Justice

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Dear Ministry of Justice,

In terms of real risk that cannot be ignored, could the head of the tribunal service advise which decision welfare rights advisers should follow.

RJ, GMcL and CS v Secretary of State for Work and Pensions v RJ (PIP): [2017] UKUT 105 (AAC) ; [2017] AACR 32 three judge panel held that:

an assessment under paragraph 4(2A)(a) of the PIP Regulations that an activity cannot be
carried out safely did not require that the occurrence of harm was “more likely than not”, a
tribunal must consider whether there was a real possibility that could not be ignored of
harm occurring, having regard to the nature and gravity of the feared harm in the particular
case. Both the likelihood of the harm occurring and the severity of the consequences were
relevant (paragraphs 33, 37 and 56);

SH v Secretary of State for Work and Pensions (PIP): [2018] UKUT 251 (AAC)

34. It had seemed to me from the grounds, that the claimant’s representative was seeking
to argue that it had been decided in RJ that a person in the position of the claimant who
had to take out her processors whilst bathing and who would not in consequence of that
have any useful hearing, would necessarily satisfy the requirements under daily living
descriptor 4c.

But had that been the argument I would have been unable to accept it. If the 3 Judge Panel
had been so deciding then it would have been unnecessary for it to remit and there would
have been no need for any further consideration on the facts, as to the nature and degree
of risk.

But, as noted above, the claimant’s representative helpfully clarified that that was not her
argument. But if it was not, then it seems to me that that leaves very little left of the ground
as originally put. That is because the tribunal did follow the approach set out in RJ
notwithstanding that despite the similarities between this claimant and CS it came to a
different view. Indeed, such might not be so surprising. It seems to me that in weighing the
nature and degree of risk as well as the remoteness of that risk, there is at least some scope
for first-tier tribunals to legitimately differ in cases where the facts might be virtually
identical. That is because the assessment of the safety issue will be one of judgment.

KT and SH v Secretary of State for Work and Pensions (PIP): [2020] UKUT 252 (AAC) held

(1) In light of the decision of a three-judge panel in RJ, CMcL and CS [2017] UKUT 0105
(AAC), the First-tier Tribunal in each case erred in law in its consideration of whether the
claimant can wash and bathe “safely”, as required by regulation 4(2A)(a) and as defined by
regulation 4(4)(a). (2) There should not be room for different First-tier Tribunal panels to
make different decisions as to whether there is a risk that cannot reasonably or sensibly be
ignored, where the differences between the panels’ decisions arise not from differences in
claimants’ needs but from different assessments of the same objective evidence of risk.

With this last decision and the importance of independence, did the UT Judge accept everything from the counsel for the claimants without question even the comparison between tetraplegics and those of being hard of hearing.

In this decision both claimants can hear conversations without their hearing aids. UT judge accepted their audiology reports which are tests conducted without hearing aids. 65db is the sound of conversations.

Yours faithfully,

David Smith

Disclosure Team, Ministry of Justice

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Disclosure Team, Ministry of Justice

Dear Mr Smith,

Thank you for your e-mail, I am writing to advise you that your enquiry does not fall under the Freedom of Information Act 2000 (FOIA) regime and has been rejected by the Disclosure Team.

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