NRB v The Secretary of State for Work and Pensions

This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 26 July 2024.

The appellant is reminded that the new First-tier Tribunal can only consider the appeal by reference to their health and other circumstances as they were at the date of the original decision by the Secretary of State under appeal (namely 19 June 2023).

If the appellant has any further written evidence to put before the First-tier Tribunal relating to that period, including any further medical evidence, this should be sent to the relevant HMCTS regional tribunal office within one month of the issue of this decision.

The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

I allow the Appellant’s appeal to the Upper Tribunal. The First-tier Tribunal’s (‘FtT’) decision dated 26 July 2024 involves an error on a point of law and I therefore set aside the decision.

The case now needs to be reheard by a new FtT. I cannot predict the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the appeal before the new FtT will succeed on the facts. The new FtT may reach the same, or a different, decision to that of the previous tribunal.

The Appellant was born on 20 October 1989. She suffers from migraines, severe depression, ADHD, underactive thyroid, asthma, B12 deficiency and dyslexia.

On 15 February 2023, the Appellant made a claim for Personal Independence Payment (‘PIP’). By a decision dated 19 June 2023, the Appellant was assessed by the Respondent as scoring 6 Daily Living points (descriptors 4b, 5b and 8b) and nil Mobility points. As this still fell short of the required number of points for an award of PIP, no award was made. The decision was reconsidered by the Respondent on 2 October 2023 but not revised.

The Appellant appealed to the FtT. The Appellant attended the hearing of the appeal in person with her representative, Simon Wilkinson. Towards the end of the hearing, the FtT asked the Appellant why she did not cook (Daily Living Activity 1 – Preparing Food). At that stage, the Appellant became extremely distressed and upset, began to cry and was not able to answer the FtT’s question. The Appellant eventually left the hearing room and later indicated through Mr Wilkinson that she did not wish to return. The FtT decided to proceed in the Appellant’s absence. Mr Wilkinson and the Presenting Officer were not, in the circumstances, able to ask any further questions of the Appellant. Ultimately, by a Decision Notice dated 26 July 2024, the FtT confirmed the existing scores and so dismissed the appeal. By a further Decision Notice dated 26 October 2024, the FtT refused permission to appeal to the Upper Tribunal.

The Appellant then applied to the Upper Tribunal for permission to appeal. On behalf of the Appellant, Mr Wilkinson submits that the hearing was procedurally unfair. In light of the Appellant’s distressed condition, the FtT ought to have adjourned the hearing to allow the Appellant to conclude her evidence and to allow him and the Presenting Officer to ask further questions. Had the FtT done so, it may have awarded points for Daily Living Activity 1, which would have resulted in an award of PIP for the Daily Living component.

By an order dated 25 February 2025, Upper Tribunal Judge Stout granted permission to appeal on the grounds and for the reasons set out therein, which I set out in full:

“7.

In this case, the hearing was interrupted by the appellant becoming upset while being asked about the cooking test (daily living activity 1). The Tribunal’s decision acknowledges this interruption, that the Tribunal did not receive an answer to its last question and that nobody else had any opportunity to ask further questions on the topic.

8.

If the appellant had been awarded 2 or more points on this activity, she would have been entitled to an award of PIP. The decision on this issue was therefore critical to the success or failure of the appellant’s appeal.

9.

The Tribunal’s decision on this activity turns in large measure on its assessment that the restrictions the appellant experiences with this activity did not occur on the majority of days and/or that the safety issues did not affect her on the majority of days and/or that her difficulty with knives was not such as to prevent her preparing food on the majority of days.

10.

However, further evidence from the appellant on this issue might have changed the factual picture for the Tribunal. As the appellant does not in fact cook on the majority of days, it was important for the Tribunal to consider why that was.

11.

The appellant’s adverse reaction to being questioned about it suggests that her psychological difficulties with cooking (perhaps in combination with her physical difficulties) may be preventing her from carrying out the activity ‘to an acceptable’ standard and/or ‘safely’ on a majority of days. The interruption to the evidence arguably resulted in the Tribunal being unable to make adequate findings of fact on which to base its decision. In particular, the penultimate sentence of [52] “Whilst the tribunal noted her reference to feeling vulnerable and using knives in terms of her depression …” is a sentence in respect of which arguably more evidence was required in order to make proper findings of fact about the impact of her psychological conditions on her ability to cook.”

Ms Sidra Rauf, who now acts for the Respondent in these proceedings, supports the appeal to the Upper Tribunal. She has helpfully provided detailed written submissions, the key parts of which I set out below:

“4.2

It is my submission that the FtT has erred in law in both their fact finding and duty to provide adequate reasons for their decision. Although the FtT has considered the claimant’s health conditions in considerable detail it is clear upon my reading of the SOR that the FtT has overlooked the combined impact of the claimant’s several health conditions.

4.3

The claimant reported in the PIP2 Questionnaire [page 9, 47-48 of the FtT Bundle] that she suffered health conditions such as migraines, severe depression, dissociative episodes (Non-Epileptic Attack Disorder), slurred speech and muscle atrophy. Following the claimant’s assessment undertaken by the HP it was noted in the assessment report that [page 49 and 50 of the FtT Bundle]:

“She says she constantly has a background headache and the migraines go up in levels. She is under the Walton centre. She has a headache diary. She will have 3 days of severe migraines - she says all the symptoms occur but very extreme, she is rolling around in pain and analgesia doesn't work. She can have seizures on these days, she will drop to the floor and have muscles spasms and go rigid.”

“She does not go to work on the severe days. She will have 2 days with milder migraines where she is able to do more - She will feel very heavy in her head, with the background headache. She can get sensitivity to lights. She has glasses that are rose tinted so will wear them if going out. The lights are a trigger for her migraines. Then she will have 2 days of just a background headache- She will feel fatigued on these days after experiencing the 3 days of severe migraines, it has a knock-on effect for the rest of the week”.

4.4

This evidence clearly displays that the claimant has 3 days of severe migraines (and the dissociative episodes linked to this), 2 days where there are milder migraines with some functionality. It is clear that the FtT accepted the claimant is impacted with migraines for 3 days, however the reasons provided in the SOR suggest that the FtT have only taken in consideration the impact of the severe migraines. It is unclear in the SOR how much weight has been given for the additional 2 days where the claimant suffers from milder migraines. I submit that it was important for the FtT to have considered the 2 days where the claimant experiences milder migraines as there is reference to her experiencing some degree of functional restriction, but it is not clear what the extent of that is.

4.5

Moreover, the claimant suffers episodes of depression (bad days and less bad days) which can often lead to her feeling low in mood, with it being hard to motivate herself to carry out activities like eating. This occurs twice a week. In the SOR, paragraphs 31 and 41 the Tribunal noted its findings with respect to the claimant’s depression and difficulties with preparing food:

“31.

She has a base level of low mood she feels her health is a big factor on her depression. When she has a bad day, she cannot talk, not eat, and remains in bed… her boyfriend had to encourage her to eat and drink and have a wash… she finds it hard to have the motivation to do normal things like wash or eat. She still requires a lot of prompting on these days.”

“41.

In her oral evidence, she stated that at the date of the decision she did not tend to prepare meals for herself, that a lot of the time her muscles would not work and that she had cut and burnt herself a number of times, nearly every time lift pans or peel things. She stated that she had a grip issue, when asked if an aid would assist her to prepare food she stated she was not good around food a mental thing with knives and she feels vulnerable in the kitchen.”

4.6

The FtT concluded in the SOR that the claimant did not have significant issues with activity 1 (Preparing Food). The claimant reported that she was experiencing severe depression, low motivation, and a need for prompting even for basic tasks such as eating or washing. Her partner had to encourage her to eat and drink and this was accepted as a fact by the FtT. The claimant also reported that she does not prepare meals due to grip issues, psychological distress (fear of using knives) and muscle fatigue. She also reported in the HP assessment that she had incidents of burning herself due to being unable to stay focussed or forgetting what she is doing whilst cooking, therefore needed prompting by her housemates [page 51 of the FtT Bundle].

4.7

The FtT also noted the claimant’s avoidance using knives and distress in the kitchen but then downplayed this evidence without a clear justification. The FtT overlooked the claimant’s distress of being in the kitchen despite evidence of fear, avoidance, and safety risks in the kitchen. It failed to explore how this impacted her ability to prepare and cook a simple meal. In paragraph 52 of the SOR the FtT acknowledged the claimant’s feelings of vulnerability due to depression and recognised her mental health issues, yet they dismissed them as being insufficient without explaining why. The FtT failed to utilise its medical expertise to determine how these symptoms affected her daily functioning in the kitchen. This omission led to an incomplete evaluation of her ability to prepare and cook a simple meal.

4.8

Furthermore it was noted in the SOR that the claimant became extremely distressed during the hearing when asked about cooking, yet the FtT continued in her absence without fully exploring the reasons or mental impact [paragraphs 16-19 of the SOR]. It is my submission that the FtT erred in law by not adequately addressing how her mental health affected her ability to cook. Despite her visible distress and early departure from the hearing, the FtT failed to explore how her mental state affected her ability to prepare food if the thought of being in a kitchen caused her such distress. As such, the FtT’s decision was flawed due to a failure to fully consider relevant evidence. It is my submission that the FtT’s decision was erroneous.

4.9

It is clear that the claimants’ physical difficulties have some sort of impact on her mental health due to the combined health conditions. The FtT has also failed to consider whether combined the impact of the several conditions could result in a descriptor being awarded on the majority of days. As per Regulation 7 of the SS (PIP) Regs 2013:

“7(c)where no descriptor is satisfied on over 50% of the days of the required period but two or more descriptors (other than a descriptor which scores 0 points) are satisfied for periods which, when added together, amount to over 50% of the days of the required period–

(i)the descriptor which is satisfied for the greater or greatest proportion of days of the required period; or,

(ii)where both or all descriptors are satisfied for the same proportion, the descriptor which scores the higher or highest number of points.”

4.10

The FtT failed to properly apply Regulation 7 and overlooking this aspect by not considering how the claimant’s combined physical and mental conditions affected her ability to function on the majority of days. Regulation 7 makes it clear that where no single descriptor is met over 50% of the time, the cumulative impact of multiple descriptors can still qualify if their effects when combined, exceed that threshold. The FtT overlooked this by assessing her conditions in isolation rather than holistically. This oversight led to an error of law and a flawed conclusion.

4.11

Therefore it is my submission that the FtT erred in law by failing to make adequate findings of fact with respect to daily living activity 1 and failing to provide adequate reasons with respect to both the claimant’s physical and mental condition in carrying out the activity to an acceptable standard on a majority of days. If the UT Judge accepts my submission that the FtT has erred in law on points identified earlier in this submission, then I respectfully request that the FtT’s decision be set-aside and remitted to be reheard by a freshly constituted FtT for further fact finding.”

Ms Rauf invites the Upper Tribunal to set aside the FtT’s determination and to remit the matter back to the FtT for a fresh hearing. Ms Rauf confirmed that the Respondent does not want an oral hearing and agrees to the Upper Tribunal giving a decision without reasons.

In his reply to Ms Rauf’s written submissions (Form 25), Mr Wilkinson confirmed that the Appellant too does not want an oral hearing and agrees to the Upper Tribunal giving a decision without reasons.

As no party has asked for an oral hearing and the Appellant and Respondent have provided written submissions, I have decided that I can fairly determine the appeal on the papers and that it proportionate and in the interests of justice to do so.

Not least given the Respondent’s support for the appeal, I am persuaded that the hearing before the FtT was tainted by procedural irregularity and that the FtT erred in law for the reasons identified by Upper Tribunal Judge Stout and Ms Rauf.

It is well established that that a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings is an error of law (see R (Iran) v SSHD [2005] EWCA Civ 982 at [9]). Whether the Appellant was entitled to points for Daily Activity, was critical to the success or failure of the Appellant’s appeal. In the circumstances, where the Appellant had become extremely distressed and upset and was not able to answer the FtT’s question and Mr Wilkinson and the Presenting Officer were not able to ask her any further questions, the FtT ought to have adjourned the hearing to allow the Appellant to complete her evidence in respect of Daily Living Activity 1 and for Mr Wilkinson, the Presenting Officer and the FtT to further explore the matter. I am satisfied that the FtT’s failure to do so amounts to a material procedural irregularity.

I am also satisfied that the FtT's failure to adjourn the hearing led to a failure to properly explore and make adequate findings in relation to Daily Living Activity 1 and, more generally whether the combined effect of the Appellant’s physical and mental health issues prevented her from carrying out relevant PIP activities ‘to an acceptable’ standard and/or ‘safely’ on more than 50% of the days of the relevant period for the purposes of regulation 7 of Social Security (Personal Independence Payment) Regulations 2013 - as identified by Upper Tribunal Judge Stout and Ms Rauf.

I am satisfied that the errors of law identified above are material. As the Appellant was assessed as scoring 6 Daily Living points, had the FtT awarded 2 or more points for Daily Living activity 1, the Appellant would have been entitled to an award of PIP. In such a case, the outcome of the appeal would have been different.

As this is enough to allow and so dispose of the appeal to the Upper Tribunal, I need not and do not express any view on any other matters raised by the Appellant and/or Ms Rauf.

Accordingly, I allow the appeal, set aside the FtT’s decision and remit the original appeal for re-hearing before a new FtT. As facts need to be found, it is not appropriate for me to re-make the decision on paper.

There will need to be a fresh hearing of the appeal before a new FtT. Although I am setting aside the FtT’s decision dated 26 July 2024, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to PIP (and, if so, which component(s) and at what rate(s) and for what period). That is a matter for the new FtT. The new FtT must review all the relevant evidence and make its own findings of fact accordingly.

In doing so, however, the new FtT will have to focus on the Appellant’s circumstances as they were as at 19 June 2023, and not the position as at the date of the new FtT hearing. This is because the new FtT must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (section 12(8)(b) of the Social Security Act 1998).

I therefore conclude that the decision of the FtT involves a material error of law. I allow the appeal and set aside the FtT’s decision dated 26 July 2024 (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new FtT subject to the directions above (section 12(2)(b)(i)).