MP v Secretary of State for Work and Pensions

The decision of the First-tier Tribunal sitting in Bristol on 4 November 2024 under reference 1686-6596-6581-5149 is set aside and I remit this matter to a differently constituted panel in the Social Entitlement Chamber of the First-tier Tribunal for reconsideration.

This matter shall be referred to a District Tribunal Judge for listing and case management directions.

Both the appellant and the respondent agree that the decision of the tribunal was made in error of law. Both parties have indicated that they are content for this matter to be dealt with without reasons and on the papers.

Having considered the papers and the submissions, I am satisfied that I can make a decision on this appeal without directly hearing further from the parties. It is fair and just to do so. The respective positions are clear. I am only deciding whether there has been an error of law in the first tribunal’s decision. As a result, and with the overriding objective in mind, I do not see any benefit to either party in arranging a further hearing before this Upper Tribunal.

When granting permission in this Personal Independence Payment (“PIP”) appeal, Upper Tribunal Judge Church indicated that he shared the concerns raised by the appellant’s representative regarding the First-tier Tribunal’s decision-making in respect of the daily living activities of managing therapy or monitoring a health condition (daily living activity 3), dressing and undressing (daily living activity 6) and making budgeting decisions (daily living activity 10).

The Secretary of State supports this appeal. In summary, the Secretary of State submits as follows:

“With regards to daily living activity 6, the Tribunal appears to have in part, based their decision on assumed factors, rather than findings of fact, and concluded that the claimant was dressing to an appropriate standard on the majority of days. …

…There is however, no apparent consideration in the SOR regarding the months where the claimant had no work, and how their mental health affected their motivation to dress appropriately. If, as suggested, the claimant was only actually working 1 or 2 days per week due to anxiety, the Tribunal’s assertion that because the claimant would be in close proximity with other people, this would precipitate them wearing clean appropriate clothes on the majority of days is somewhat compromised.

…. The Tribunal accepted that this in turn led to a lack of motivation, including in preparing food, and a reluctance to bathe or shower regularly to an acceptable standard. Although it does not necessarily follow that an award of prompting for daily living activity 4 (washing and bathing), would automatically also apply prompting in relation to dressing and undressing, the Tribunal’s reasoning does not adequately reconcile how they accepted that the claimant has a mental health condition, which caused a reluctance to maintain personal hygiene, but still managed to dress appropriately, and in clean clothes, leading to a potential inconsistency in their decision.

The above calls in to question how the Tribunal have applied Regulation 7 of The Social Security (Personal Independence Payment) Regulations 2013, which considers whether the claimant could complete an activity on over 50% of days of the required period. Likewise, regulation 4(2A) of The Social Security (Personal Independence Payment) Regulations 2013 considers whether a claimant can carry out an activity safely, to an acceptable standard, repeatedly, and within a reasonable time period. The assumptions in the SOR do not adequately address either regulation…

… it is not clear how the Tribunal concluded that the claimant was able to dress to an acceptable standard on the majority of days, particularly in light of their acceptance of reduced motivation due to a mental health condition in other areas. I therefore respectfully submit that the Tribunal have not given adequate reasons for their findings on a material matter.

Moving on to daily living activity 10, the Tribunal appeared to have dismissed the claimant’s difficulties as having inadequate income, rather than their problems with budgeting being related to a mental health condition, however their reasons do not adequately support this conclusion. … While the Tribunal acknowledged that the claimant’s financial situation caused anxiety and reduced motivation, it did not explore whether these symptoms impacted the claimant’s ability to manage budgeting decisions, a key aspect of activity 10. This creates a tension between the accepted mental health impact and the conclusion that the claimant’s difficulties were purely financial…

… I also note an important omission in the Tribunal’s reasons. In the claimant’s grounds to appeal in their SSCS1, they mentioned impulse buying [page 4 of the Tribunal appeal bundle]. Althh#-[polW
GF~jnough not specifically mentioned in the PIP2, the claimant did mention “poor purchasing decisions” [page 34 of the Tribunal appeal bundle]. There was a mention of this in the claimant’s HP assessment, where it was stated that he will sometimes buy something that he may not need, but not very [page 52 of the Tribunal appeal bundle]. The Tribunal does not appear to have sought to establish further information around this, such as the type, frequency, and impact of these purchases...”

I adopt the reasoning advanced on behalf of the Secretary of State.

The omissions identified amount to an error of law and justify the matter being remitted. It is unnecessary to address any further issues. In these circumstances, I am bound to allow the appeal. The First-tier Tribunal failed to consider the correct basis of the decision under appeal. The claimant had been awarded six points for the daily living component. Accordingly, the error of law is material, as the claimant may have been entitled to additional descriptors scoring at least two points to meet the threshold for an award at the standard rate of the daily living component, or six points to meet the threshold for an award at the enhanced rate.

Accordingly, I direct that the matter be remitted to a differently constituted tribunal for a full rehearing.

For the avoidance of doubt, the fact that the appeal has succeeded at this stage should not be regarded as any indication of the outcome before the First-tier Tribunal in due course.