AR v The Secretary of State for Work and Pensions (PIP)

AR had an award of personal independence payment (PIP) consisting of the standard rate of the daily living component and the enhanced rate of the mobility component, awarded from 21 February 2018 onwards. This reflected AR having been awarded 9 points for daily living activities and 12 points for mobility activities.

On 07 November 2022, the Department for Work and Pensions (“DWP”) acting on behalf of the Secretary of State for Work and Pensions, started reviewing AR’s existing PIP award. On 24 November 2023, DWP decided to supersede AR’s PIP award, on the basis that it had received medical evidence from a healthcare professional. DWP decided AR should still retain his awards of the daily living component at the standard rate and the mobility component at the enhanced rate but changed the duration of his award to become an indefinite award.

AR appealed DWP’s decision. On 14 June 2024, a First-tier Tribunal (“FTT”) decided AR’s appeal on the basis of the written evidence. The FTT confirmed DWP’s decision and refused AR’s appeal.

On 10 October 2024, AR applied to the Upper Tribunal for permission to appeal against the FTT’s decision.

In a decision dated 14 January 2025, I granted AR permission to appeal against the FTT’s decision on the basis it was arguable the FTT had made one or more of the following errors of law:

Mr Naeem is the Secretary of State’s representative in these proceedings. He supports the appeal to the Upper Tribunal in a helpful written submission dated 15 February 2025.

Mr Naeem invites the Upper Tribunal to set aside the FTT’s decision dated 14 June 2024 for containing material errors of law, for the reasons set out below.

Explaining the decision to determine the appeal on the papers: Mr Naeem submits that on a cursory glance, the FTT’s approach towards dealing with the appeal on the papers does not appear in error of law. However, in DT v SSWP (UC) [2019] UKUT 268 (AAC), the Upper Tribunal decided a FTT must acknowledge explicitly that it has considered whether the parties consented to a decision without a hearing and that it can fairly decide the appeal without holding one (and why). Mr Naeem submits that the FTT stated at several points during the Statement of Reasons that it found AR’s evidence to be inconsistent with the clinical evidence. He submits the FT could have stopped to consider whether to adjourn to invite AR to take part in a hearing and to address any perceived inconsistencies in his evidence. AR had also not explained why he did not want to attend a hearing, and it might have been due to mobility difficulties that could be resolved by a telephone hearing.

Mr Naeem submits that had the FTT considered these issues and addressed them in its Statement of Reasons, it would have been sufficient to demonstrate the FTT had discharged the duty to determine it was fair and just to decide the appeal on the papers. Mr Naeem submits that the fact the FTT did not do so, amounts to an error of law.

Addressing the supersession decision DWP made to change AR’s award: Mr Naeem submits the FTT has not addressed the matters set out in the decision of SC, including whether there was a ground in law for supersession and the evidence supported the decision. He submits that if the FTT considered this, it has not addressed it in the Statement of Reasons, affecting the adequacy of the reasons given for its decision.

Adequacy of factual findings and / or reasoning about daily living activities 1, 4, 5 and 6 and more broadly: Mr Naeem submits that while it is clear the FTT preferred the evidence from the PA4 assessment report, it is less clear what the FTT made of the impact AR’s health conditions had on his functional abilities. Mr Naeem refers to the history of conditions section of the PA4 report (page 114 of FTT bundle) and the reference to AR experiencing constant pain and stiffness, that restricted his bending, lifting and twisting, was worse in cold damp weather and provided no good days. He submits the FTT has not provided any reasoning about what it made of this evidence about the degree of pain AR was experiencing and how it would affect his functional abilities.

Mr Naeem submits this is linked to the FTT’s reasoning about preparing food (activity 1). Having made findings consistent with what the PA4 report recorded about difficulties cooking sitting due to pain, the FTT concluded AR could use aids to prepare food. Mr Naeem submits there is a disconnect between the FTT’s findings at paragraph 20 of its Statement of Reasons and its conclusions, which do not explain what would overcome AR’s pain when sitting and why a perching stool would help him.

Mr Naeem also submits that in terms of washing and bathing (activity 4) and dressing and undressing (activity 6), the PA4 report recorded AR would take 40 minutes for each activity. Mr Naeem submits the FTT did not refer to this at all in its Statement of Reasons and has not addressed the reasonable timescale requirement in regulation 4(2A).

In terms of managing toilet needs (activity 5), Mr Naeem submits there is a discrepancy between the FTT’s findings at paragraph 40 of its Statement of Reasons that AR had difficulties twisting to reach behind himself to clean, and its conclusion that he could use an aid to do so. It is unclear what aid the FTT had in mind in reaching that conclusion. Mr Naeem submits it was incumbent on the FTT to provide further reasons explaining this point further.

AR’s representative, Mrs PR, has made submissions that AR is unable to get out of bed most days as he is in severe pain. She refers to AR having a bed and recliner as well as a downstairs bedroom and wet room. PR describes AR being unable to function without a full time carer. PR describes AR’s weight being affected (increased) by his medical conditions, affecting his ability to move, and the fact AR is on pain patches but is unable to find successful pain relief. PR states that while AR needs an MRI scan he could not go through with the last one due to pain lying down in the machine.

Neither party requested an oral hearing of the appeal. I took these preferences into account and considered the appeal file. I decided the interests of justice did not require an oral hearing. The parties agree there were material errors of law by the FTT. I therefore determined the appeal on the papers. It was proportionate to do so.

There was a delay in AR’s appeal being referred back to me to decide. On behalf of the Upper Tribunal, I apologise to AR and his representative PR for this, and the inconvenience caused to them.

At the permission stage, I only needed to be persuaded that it was arguable with a realistic (as opposed to fanciful) prospect of success that the FTT had made an error of law in a way that was material.

At this substantive stage, I need to be satisfied on the balance of probabilities that the FTT did make an error or errors of law that were material.

I am satisfied, on the balance of probabilities, that the FTT made material errors of law in relation to the appeal grounds addressed by Mr Naeem at paragraphs 8 to 14 above and dealt with in more detail by his submission dated 15 February 2025.

Having decided the FTT’s decision involved material errors of law, it is appropriate to exercise my discretion to set aside the Tribunal’s decision dated 14 June 2024 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act provides that I must either remit the case to the First-tier Tribunal with directions for their reconsideration or remake the decision.

Neither party has asked me to remake the FTT’s decision. In any event, it is necessary for further facts to be found. The First-tier Tribunal is best placed to evaluate the evidence, including using its medical and disability expertise, and to make appropriate findings of fact.

I therefore remit AR’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about the level of his entitlement to PIP at the date of DWP’s decision on 24 November 2023.

Although I have set aside the FTT’s decision dated 14 June 2024, I am not making any findings, or expressing any view, about the appropriate award of PIP for AR. The next tribunal will need to hear evidence, make its own findings of fact and provide its reasoning for the decision it reaches.