FtT ‘setting aside’ decision of the LA (HB)

I have come across a case where the appeal was originally heard back in 2022, and the Tribunal purported to “set aside” the LA’s decision, and directed the LA as to what factors to take into account when making a new decision.

I have always thought that this wasn’t an option available to a FtT. Am I wrong?

Either way, the LA have made a new decision, on basically the same lines as the original decision, with a new appeal being made. We will of course be arguing the case on its merits, but is the history above at all relevant?

The powers of the FtT on appeal are left conspicuously vague by s12 SSA but the gaps are largely filled in by caselaw and, in particular, R(IS) 2/08. There is, in principle, the power to set decisions aside and remit matters to the original decision maker where appropriate, for example because a new matter is raised on appeal which should be considered first by the DM or because the decision is incoherent.

The corollary of that is that the FtT does actually need to decide the issues which are properly raised by the appeal, I don’t know the specifics of your case, but the idea of the FtT simply giving some sort of list of factors which the LA ought to consider sounds suspiciously like the FtT did not do its job properly. If the previous appeal was a challenge to some sort of evaluative exercise, then the role of the FtT is to conduct that exercise for itself and not limit itself to some sort of reviewing role.

It may be that the original decision was in error of law for failing to grasp the nettle and make a proper decision. It may even be arguable that the FtT remains seized of the matter - having giving directions rather than made a decision - but I suspect that none of this takes you far given that the new decision is under appeal anyway.

Whilst I don’t disagree with what Elliot says, in terms of the types of HB case that I most frequently deal with, it’s reasonably common for the FtT to set aside the original decision but to then leave the resulting new calculation to the LA (and usually with liberty to restore if the new entitlement calculation is disputed). One recent example; LA decides that claimant’s accommodation is specified accommodation but not exempt accommodation under the 1996 rules - appeal on that issue is allowed but the FtT does not then decide what the precise level of the resulting entitlement is.

Yes, I think its perfectly normal to remit matters of the calculation but that seems a very different thing to remitting the decision with a checklist of ‘factors to take into account’.

Well yes - I suppose that without the benefit of seeing the actual wording of the decision, I was just giving the FtT the benefit of the doubt. It might be that rather than there being ‘factors to take into account’ the tribunal’s list was one that stated expressly a number of terms the new decision has to comply with?

Thanks both.

Yes, I’m also very used to Tribunals remitting the calculation back to the DM, but this was very different.

There were a couple of factual questions outstanding, which I would have normally expected the Tribunal to enquire into itself.

Instead, it set aside the decision, told the DM what factors to take into account in their new decision, and told the claimant that “it would be in their interest” to provide certain facts and evidence to the DM.
It was definitely a full-blown decision, and not simply directions.
Literally the sort of decision you see very often from an UT remitting a case back to the first-tier!

The original entitlement decision made by the DM was actually very reasonable, and I think some of the factors the Tribunal mentions are actually wrong legally. I wasn’t representing at the first hearing, but I happen to agree with the DM on entitlement. I will only be arguing about recoverability on Offical Error grounds.

I suppose the upshot though is that the history makes no difference to me. I have an almost identical decision in front of me, and a fresh hearing before a new FtT.