ZH v The Secretary of State for Work and Pensions

ZH was born in 2017. He had been awarded the highest rate of the care component of Disability Living Allowance (“DLA”) from 19 November 2020 to 18 March 2022. A new DLA claim was made for ZH in 2022, and on 12 June 2023, the Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions (“SSWP”) decided that ZH was entitled to the highest rate of the care component and the lowest rate of the mobility component, from 19 March 2022 to 18 March 2029.

Acting through JH, his father and Appointee, ZH appealed DWP’s decision. On 15 May 2024, a First-tier Tribunal (“FTT”) held a telephone hearing of ZH’s appeal. JH took part in the appeal accompanied by ZH’s mother. JH gave evidence via an Urdu interpreter. An earlier appeal hearing had been adjourned so that an Urdu interpreter could be arranged to interpret for JH.

On 15 May 2024, the FTT refused ZH’s appeal, and confirmed DWP’s decision dated 12 June 2023. The FTT produced a Statement of Reasons for its decision on 06 June 2024. On 15 August 2024, ZH applied to the Upper Tribunal for permission to appeal against the FTT’s decision.

In a decision dated 20 December 2024, I granted ZH permission to appeal against the FTT’s decision. I granted permission to appeal on the basis that it was arguable the FTT had made the following errors of law:

Mrs A. Watts is the Secretary of State’s representative in these proceedings. She supports the appeal to the Upper Tribunal in a helpful written submission dated 29 January 2025.

Mrs Watts invites the Upper Tribunal to set aside the FTT’s decision dated 15 May 2024 for containing material errors of law. She invites the Upper Tribunal to remit the appeal for hearing by a differently constituted tribunal, with appropriate directions for its redetermination. Mrs Watts supports the appeal for the reasons set out below.

Misdirecting itself in law / adequacy of fact finding and reasoning about the test in section 73(3)(b) of the 1992 Act regarding displaying severe behavioural problems: Mrs Watts confirms the SSWP agrees R(DLA)1/00 indicates intelligence should not be measured using a narrow and mechanistic approach but in the context of insight and sagacity. She submits that the decision in MP reiterates a narrow approach must be avoided, and an assessment of intelligence and social functioning must take into account how a person can function and apply those qualities in real life situations.

Mrs Watts submits the FTT erred in law in failing to apply those decisions when determining ZH’s appeal. Mrs Watts submits the FTT appears to have taken into account isolated facts about ZH’s intelligence – such as his ability to sign the alphabet song, count to ten and use keys – without considering those facts in the context of his wider behaviour. Mrs Watts submits that as a result, the FTT has failed to demonstrate that it considered ZH’s evidence in a more holistic and functional manner, including whether ZH could do these repeatedly or they represented an isolated event, and whether he had any actual understanding of those actions.

Mrs Watts also argues that while there is extensive evidence in the FTT bundle, it is unclear what the FTT made of this. She submits the FTT made findings of fact at paragraph 9 of its Statement of Reasons, but that neither these, nor its reasoning about them, address specific evidence listed in the FTT bundle (including the evidence listed at paragraph 4(a) above). Mrs Watts submits the FTT also made a material error of law by failing to give sufficient reasons explaining why it preferred other evidence.

Failing to address whether ZH might meet the condition in section 73(1)(a) of being virtually unable to walk: Mrs Watts confirms the SSWP considers CSDLA/292/2007 and SC v SSWP (DLA) [2010] UKUT 76 were relevant to evidence in the appeal that ZH might be virtually unable to walk under section 73(1)(a) of the Social Security Contributions and Benefits Act 1992 as a result of dropping to the ground and refusing to walk. Mrs Watts submits that the Statement of Reason provides no assessment of whether ZH might be entitled to the higher rate of the DLA mobility component on the basis of being virtually unable to walk (section 73(1)(a)). She submits that the FTT made a material error of law by failing to exercise its inquisitorial jurisdiction to explore this issue, given there was evidence in the bundle that appeared to suggest ZH would drop to the floor and refuse to walk.

In light of the submissions provided by Mrs Watts, ZH’s representatives have, unsurprisingly, confirmed they do not have any further submissions to make.

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. There is a substantial level of agreement between the parties about errors of law by the FTT. I therefore determined the appeal on the papers. It was proportionate to do so.

It appears there have been some delays in this appeal being referred back to me to decide. On behalf of the Upper Tribunal, I apologise to the parties for those delays.

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 a material error of law in relation to the appeal grounds addressed by the Secretary of State at paragraphs 7 to 11 above and dealt with in more detail by Mrs Watts’ submission dated 29 January 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 15 May 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 ZH’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about his level of entitlement to DLA at the date of DWP’s decision on 12 June 2023.

Although I have set aside the FTT’s decision dated 15 May 2024, I am not making any findings, or expressing any view, about what level of DLA should be awarded to ZH. The next tribunal will need to hear evidence and make its own findings of fact and provide its reasoning for the decision it reaches.