NM v The Secretary of State for the Department of Work and Pensions

This case is remitted to the First-tier Tribunal for reconsideration.

The members of the First-tier Tribunal who reconsider this appeal should not be the same as those who made the decision which I have set aside.

To the Appellant, if you, or your representative on your behalf have any further written evidence that you wish the new tribunal to consider (and which casts light on your state of health on or before 13 May 2023), you must write to the First-tier Tribunal, quoting reference: SC314/23/01284, enclosing copies of any additional evidence.

The newly constituted tribunal hearing the remitted appeal is not bound in any way by the decision of the previous tribunal. It will not be limited to the evidence and submissions before the previous tribunal. It will consider all aspects of the case entirely afresh and it may reach the same or a different conclusion to the previous tribunal.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

NM appeals against the decision of the First-tier Tribunal, which upheld the Secretary of State’s decision dated 13 May 2023. By that decision, the Secretary of State concluded that NM was entitled to Personal Independence Payment (PIP) but only for the mobility component at the enhanced rate, he was not entitled to any rate for daily living activities.

NM, with the assistance of his mother sought permission to appeal the decision to the Upper Tribunal, this was granted by a judge of the First Tier-Tribunal on 28 March 2024.

As was summarised in the First-tier Tribunal’s Decision Notice dated 23 October 2023 and the accompanying Statement of Reasons issued on 6 January 2024, the appellant, NM, is a young adult with a complex medical history including epilepsy, severe short-term memory loss, dyslexia, irritable bowel syndrome (IBS), gluten intolerance, body malaise, and tremors. These conditions have been longstanding, with epilepsy and tremors dating back to childhood and adolescence respectively. His memory impairment became pronounced following a prolonged hospital admission for status epilepticus in August 2022.

In his PIP claim and appeal submissions, NM described the following functional impairments:

NM appealed against a decision of the Secretary of State dated 13 May 2023, which awarded him the enhanced rate of the mobility component of Personal Independence Payment (PIP) but refused the daily living component, having assessed him as scoring 7 points, below the entitlement eligibility threshold of 8.

The First-tier Tribunal heard the appeal and issued its decision notice on 23 October 2023, and statement of reasons on 6 January 2024. The Tribunal confirmed the Secretary of State’s decision in full.

NM was awarded the enhanced rate of the mobility component from 30 November 2022 to 1 May 2026, based on scoring 12 points under Mobility Activity 11(f): “Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid.” The Tribunal accepted that NM was severely limited in his ability to mobilise due to epilepsy and associated cognitive impairments and relied on the written medical evidence in the appeal bundle. This finding did not differ from the Secretary of State’s original decision.

In respect of the daily living component, the Tribunal upheld the Secretary of State’s assessment, which awarded points under the following activities:

No points were awarded for Activities 2, 5, 6, or 7, which relate respectively to:

The Tribunal concluded that NM did not meet the criteria for additional points under these activities and therefore did not qualify for the daily living component at either the standard or enhanced rate.It found that for more than 50% of days, he could manage these activities without assistance, supervision, or prompting. 

On 6 February 2024, NM applied for permission to appeal to the Upper Tribunal. The application, submitted by his mother, with his consent, alleged that the Tribunal had misapplied the law and failed to provide adequate reasons in relation to daily living activities 2, 3, 5, 6, and 7.

On 28 March 2024, District Tribunal Judge Peter Ward granted permission to appeal. He found it arguable that the Tribunal’s reasons for rejecting additional points under Activities 2, 5, and 6 were inadequate due to their brevity, and granted permission without limitation.

On 29 April 2024, NM submitted his notice of appeal to the Upper Tribunal reiterating the grounds of appeal. The accompanying letter, written by his mother with his consent, asserted that the First-tier Tribunal had failed to properly consider the evidence and had not provided sufficient reasoning for its findings under the disputed daily living activities.

Following the grant of permission to appeal by First-tier Tribunal Judge Ward on 28 March 2024, I issued directions on 4 June 2024. In addition to the grounds identified in Judge Ward’s decision, I considered that there was a further arguable error of law in the First-tier Tribunal’s decision of 23 October 2023. Specifically, I observed that the Tribunal had arguably failed to have regard to Regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 when determining the applicable daily living descriptors. For example, in relation to the activity of preparing food, the Tribunal did not appear to consider whether the appellant could carry out the task safely, even with supervision or assistance. I referred to the evidence provided by the appellant’s mother at Addition K, p.3, which described a serious incident involving a seizure in the kitchen, for which there had been no warning.

I directed both parties to inform the Upper Tribunal within one month whether they objected to the First-tier Tribunal’s decision being set aside on the grounds identified in the grant of permission and the further ground I had identified.

In response, the Secretary of State filed written submissions dated 5 August 2024. The Secretary of State supported the appeal and accepted that the First-tier Tribunal had erred in law. It was submitted that the Tribunal’s reasoning in relation to the daily living activities was inadequate, amounting to a recital of evidence followed by conclusions without sufficient explanation. The Secretary of State agreed with the observations made by Judge Ward and me and submitted that the Tribunal had failed to adopt a holistic approach to the evidence, particularly considering Regulation 4(2A) and the guidance in RJ, GMcL and CS v SSWP [2017] UKUT 0105 (AAC).

The Secretary of State identified specific errors in the Tribunal’s assessment of several daily living activities:

The Secretary of State submitted that these errors undermined the Tribunal’s findings and made it unclear whether the correct legal tests had been applied. It was therefore requested that the decision be set aside and the matter remitted to a differently constituted First-tier Tribunal for rehearing.

Following the Secretary of State’s submissions supporting the appeal, accompanied by a request that the matter be remitted for a fresh hearing before a newly constituted First-tier Tribunal, I issued observations and directions to both parties on 21 January 2025, inviting submissions on whether the Upper Tribunal should re-make the decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, rather than remit the matter.

In those submissions, the Secretary of State invited remittal to a freshly constituted First-tier Tribunal. By my directions, the Appellant was invited to state whether he objected to the Secretary of State’s position on remittal; no response was received.

Having considered the grounds of appeal, the grant of permission, my earlier observations, and the Secretary of State’s submissions, I am satisfied that the First-tier Tribunal’s decision involved material errors of law. In summary:

Failure to engage with the “reliability” requirements, specifically safety, under regulation 4(2A) of the PIP Regulations 2013. The First-tier Tribunal accepted salient facts about the Appellant’s epilepsy (including seizures without warning) but did not show, in its reasoning, that it applied the correct legal test when determining whether activities could be carried out safely and to an acceptable standard. The point was identified both in my earlier observations and in the Secretary of State’s support for the appeal. This failure was material to a number of the daily living activities, including Activity 1 (preparing food), Activity 2 (Taking Nutrition) and Activity 4 (washing/bathing).

Inadequate reasons / failure to make necessary findings on key activities. The First-tier Tribunal’s reasoning amounted in places to a recital of evidence followed by conclusions without explaining the evaluative process or resolving key factual issues. The Secretary of State expressly identified inadequacies and gaps affecting Activities 1, 2, 5 and 6, which I accept (see §17 above). In the absence of sufficient findings, it is unclear whether the correct descriptors were applied.

Failure to address relevant case-law principles on “managing toilet needs or incontinence” (Activity 5). The Tribunal did not engage with whether there was a reasonable need to use incontinence aids on a precautionary basis (even if not used every day), as discussed in authorities referred to in my observations and the parties’ materials. This omission was material to the assessment under Activity 5.

Holistic evaluation and internal consistency. The Secretary of State’s submissions pointed to unresolved inconsistencies (for example, about seizure history, hand tremor and the availability/effect of aids) which the First-tier Tribunal did not address, and which bear directly on the correct application of descriptors and regulation 7. These were matters requiring specific factual resolution.

The Upper Tribunal has considered whether to re-make the decision or remit. In light of (i) the nature and range of outstanding factual issues identified by the Respondent (including matters apt for consideration by a medically-qualified member), and (ii) the Appellant’s non-response to the directions inviting submissions on disposal, I conclude that a fair and just disposal is to remit the case to a freshly constituted First-tier Tribunal for complete re-hearing.

This decision makes no findings on the ultimate merits or on the specific descriptors to be applied. Nothing in my earlier observations should be treated as binding on the remitted tribunal.

For the reasons set out above, the appeal is allowed. Accordingly, the appeal will be re-heard by a differently constituted First-tier Tribunal (Social Entitlement Chamber) tribunal panel.

The Appellant’s success in this appeal to the Upper Tribunal, which concerns an error of law, does not determine the outcome of his substantive appeal. That will be a matter for the First-tier Tribunal to assess, in accordance with the law and upon full consideration of all relevant evidence.