RC v Secretary of State for Work and Pensions

I am satisfied on the arguments before me that that the First-Tier Tribunal (“FTT”) erred in law in the decision to which it came on 2 May 2025 and that its decision should be set aside as a result.

The FTT erred in law in my judgement in limiting its consideration to PIP daily living activity 9. Following the Upper Tribunal’s decision in TR and GD v SSWP [2025] UKUT 332 (AAC), it is clear the FTT was wrong in law to limit its consideration to daily living activity 9.

Following TR and GD, in this case the FTT had (and has) jurisdiction on the appeal to decide the appeal against the original decision on its full merits (that is, by reference to all relevant activities in Schedule 1 to the PIP Regulations) and was not limited to considering only the ‘official error’ ground (here based on PIP daily living activity 9).

The FTT considered it was bound only to consider activity 9, which was the basis for the official error review carried out by the Secretary of State into her decision of 22 September 2019. The FTT ought instead to have considered whether mor than PIP activity 9 was in issue on the appeal, and in not doing so it materially erred in law.

This is explained by the Secretary of State in a submission supporting the Upper Tribunal appeal being allowed dated 18 December 2025. I agree with that submission, which reads materially as follows:

“13.

The three-judge panel in (1) TR (2) GD v SSWP (PIP/ESA) [2025] UKUT 332 (AAC) [TR & GD] considered the jurisdiction of a FTT where an application for revision has been made after the absolute time limit of 13 months [“any time” revision] and the extent of that jurisdiction. They decided, as far as relevant to this case, that:

“121.

It follows that, in relation to the issues identified for consideration in these cases, we have decided:

a.

Where an application for revision has been made more than 13 months after the original decision or supersession decision, whether the First-tier Tribunal has jurisdiction on appeal depends on the Secretary of State having considered an application that is in substance a request for revision that raises grounds which, if made out, would be capable of being in fact or law an official error (or other relevant “any time” ground for revision);

…………………………………..

e.

On such appeals, if the appeal is brought within that time limit (including any extension), then:

i.

if the application was for revision of an original decision under section 8, the First-tier Tribunal has jurisdiction on a “full merits” and de novo basis and must deal with the case as if it is standing in the shoes of the Secretary of State on the date that the Secretary of State made the original decision under section 8, save that (by virtue of section 12(8)(a) of the SSA 1998) it need not consider any issue not raised by the appeal;”

14.

In paragraph 8 of the Decision Notice (DN) the FTT state ‘The tribunal were only able to consider descriptor 9, engaging socially, as the appeal was only admitted in relation to the error of law concerning that descriptor.’ (UT bundle, page 15). Furthermore, at paragraph 7 of the Statement of Reasons (SOR) the FTT also state ‘The appellant had been awarded no points in respect of any other descriptors and the tribunal had no power to consider any other descriptors.’ (UT bundle, page 19).

15.

I submit that the pre-condition for the FTT’s jurisdiction set out in paragraph 121.a of TR & GD is satisfied in this case, as MM was not considered when the decision was made on 22/09/2019. The DM on 17/07/2024 had therefore considered an application that is in substance a request for revision that raises grounds which would be capable of being an official error. In accordance with TR & GD the FTT’s jurisdiction was on a full merit’s basis (121. e i) and so when carrying out a reconsideration of the claimant’s needs, the FTT could and should have done so in the light of any new relevant matters the available evidence brings to light but need not consider any issue not raised by the appeal.

16.

The evidence in the bundle which relates to the appellant’s appeal are two letters from the appellant, the first dated 14/03/2024 (FTT bundle, pages 158-159) and the second dated 27/11/2024 (FTT bundle, addition D, page 1). The first letter dated 14/03/2024 was the mandatory reconsideration (MR) request the appellant sent to the SoS. The appellant refers to the decision of SSWP v MM but also states ‘..understand how impact my condition impairments and daily life.’ And also states ‘the assessment is an opportunity for me to talk about my condition affects me personally..’.

17.

The second letter dated 27/11/2024, the appellant again mentions her health conditions stating ‘someone who lost the hearing when younger due to meningitis and as a result, I am left with severe hearing loss, profound hearing loss…my speech is affected… left me with back problem and hand sickness’. It is clear from the appellant that she had health conditions that were affecting her daily life, this could have impacted the other descriptors not only 9c, which is what the FTT solely focused on. It is arguable that there could have been a prospect of success if these had been considered by the FTT.

18.

I therefore submit that the FTT erred in law by limiting its consideration to the application of MM. The FTT have failed to consider the full appeal which may have had a material difference to the outcome.”

For the reasons set out above, the appeal succeeds. The Upper Tribunal is not able to re-decide the first instance appeal, nor is it asked to do so. The appeal will therefore have to be re-decided afresh by a completely differently constituted FTT, after an oral hearing. As the Secretary of State has explained, the new FTT will be dealing with a closed period concerning the appellant’s entitlement to PIP from 23 October 2019 to 3 February 2021inclusive.

The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether her appeal will succeed on the facts before the new FTT, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.