AM v The Secretary of State for Work and Pensions

On 26 October 2023, AM made a claim for personal independence payment (“PIP”). On 05 March 2024, acting on behalf of the Secretary of State for Work and Pensions, the Department for Work and Pensions (“DWP”), awarded AM 6 points for daily living activities and 4 points for mobility activities. As the threshold for an award of either component of PIP is 8 points, DWP decided AM was not entitled to that benefit.

AM appealed to a First-tier Tribunal on 11 June 2024. AM’s appeal was determined by a First-tier Tribunal (“FTT”) on the basis of the appeal bundle papers on 27 August 2024. A copy of its Decision Notice was issued to the parties on 10 September 2024. The FTT confirmed DWP’s decision and refused AM’s appeal.

On 14 April 2025, the Upper Tribunal received an application from AM, asking for permission to appeal against the FTT’s decision. In a decision dated 05 June 2025, I granted AM permission to appeal on the basis it was arguable the FTT had made one or more of the following errors of law.

Explaining why it decided AM’s appeal on the papers: the FTT may have applied the law incorrectly, in deciding to determine AM’s appeal on the papers. Alternatively, it may have failed to provide adequate reasons for why it went ahead on the papers.

The Upper Tribunal confirmed in DT v SSWP (UC) [2019] UKUT 268 (AAC) (“DT”) and in MM v SSWP (ESA) [2011] UKUT 334 (AAC) (“MM”) that the tribunal must acknowledge explicitly that it has considered both whether the parties have consented to a decision being made without a hearing and that it can fairly decide the appeal without holding one, and to explain why. At paragraph 7 of the Statement of Reasons, the FTT stated that AM asked for hrr appeal to be decided without an oral hearing and that it had sufficient information to determine your appeal on the basis of the written evidence. The FTT wrote that paragraph 29 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 (“the FTT 2008 Rules”) applied.

In its Decision Notice dated 27 August 2024, the FTT wrote that it could justly and fairly determine the appeal on the basis of the written evidence and that paragraph 29 of the 2008 Rules applied.

The relevant test the FTT had to apply is in rules 2 and 27 of the 2008 Rules, not rule 29. The FTT has also not explained why it considered it fair and just to proceed without a hearing. It is arguable this was an error of law. Only a short explanation of why it is fair and just is required, but it appears the FTT may not have provided any explanation.

Mr Razzaq is the Secretary of State’s representative in these proceedings. He has provided a helpful written submission dated 22 July 2025. Mr Razzaq supports the appeal and invites the Upper Tribunal to set aside the FTT’s decision dated 27 August 2024 for containing material errors of law, for the reasons set out below.

Mr Razzaq refers to the decisions in DT and MM and the confirmation that the Tribunal must acknowledge explicitly that it has considered both whether the parties have consented to a decision being made without a hearing and that it can fairly decide the appeal without holding one, and to explain why. He observes that the FTT refers at paragraph 7 of its Statement of Reasons to the fact AM asked for her appeal to be decided without an oral hearing and that the FTT had sufficient information to determine the appeal on the basis of the papers.

Mr Razzaq submits that in explaining its decision, the FTT has not adequately explained how it considered rules 2 and 27 of the FTT 2008 Rules and why it considered it fair and just to decide the appeal on the basis of the papers. Mr Razzaq argues that as confirmed in MH v Pembrokeshire CC [2010] UKUT 28 (AAC), there is a three-stage process involved in considering rule 27, namely:

Mr Razzaq submits that the FTT has provided insufficient explanation within the Decision Notice or Statement of Reasons to demonstrate that it considered stage three of the process, namely whether it could decide the matter without an oral hearing or further evidence. Mr Razzaq argues that the FTT was required to bear in mind throughout its consideration of the case, whether an adjournment was necessary for the FTT to fulfil its investigative and investigatory role (and implicitly, to decide the case fairly and justly under rule 2). He submits that an explanation, even if short, is required, and the FTT has failed to provide one and this is a material error of law.

Mr Razzaq also submits the also appears to have misdirected itself in law by referring to determining the appeal on the papers on the basis of rule 29 of the FTT Rules 2008, when the rule to be considered was rule 27 (together with rule 2).

AM has replies to Mr Razzaq’s submissions. She states she has already provided all evidence of her health and recent health updates which clearly tell her condition. AM questions why her appeal to the FTT was decided on the papers. She states she is ill and cannot come to court, but she can do an oral hearing by telephone or video link if needed. AM refers to always being in pain due to her condition and experiencing back pain which affects her legs. She refers to not sleeping all night and having to wake her children up to massage her and bring her painkillers. AM describes side effects of her medication (nausea and drowsiness).

AM writes that the cases provided are not relevant as she does not mind an oral hearing but prefers a telephone or video link one, but due to her condition, she said for a paper decision, so the judge was not to blame.

AM writes that when she made the claim she wrote about her health due to that time and now it has gone worse and is not improving, so each time she went to the tribunal appeal she sent latest updates on her health. She writes that when the judge saw the recent reports that was the reason for them to accept her appeals. AM also subsequently sent the Upper Tribunal MED3 Fit notes about her dated 22 September 2025 and 13 October 2025. On 21 October 2025, AM sent the Upper Tribunal an email stating that she had been again to her GP as her pain in her back, arm and legs was unbearable and they had referred her to an ortho to consult about an operation for her back and given her more medicine.

Neither party requested an oral hearing of AM’s appeal. AM referred to an oral hearing, but this appears to be in the context of her having an oral hearing before the FTT.

The Secretary of State supports setting aside the FTT decision for an error of law and his position is clear. AM considers the FTT made the wrong decision about her, but for other reasons. Taking these matters, and the parties’ preferences about a hearing, into account, I decided an oral hearing is not required. Listing a hearing of AM’s appeal before the Upper Tribunal would simply add delay in reaching a position where both parties consider a new decision need to be made by the FTT about AM’s appeal. I decided it was proportionate to determine the appeal on the papers.

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.

At paragraph 7 of its Statement of Reasons, the FTT wrote:

“In lodging her appeal, [AM] asked that her appeal be decided without an oral hearing. This is her right. The Tribunal decided that they had sufficient information to enable them to determine the appeal on the basis of the paper evidence. Paragraph 29 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 applies.”

The heading above paragraph 8 of its Statement of Reasons is “Correction of typographical errors in the Decision Notice”. In this paragraph, the FTT wrote:

“In lodging his should read her appeal, Miss [AM] requested that her appeal be determined without an oral hearing. The Tribunal decided that they could justify and fairly determine the appeal on the basis of the written evidence. Paragraph 29 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 applies”.

The FTT therefore changed some of paragraph 5 of its Decision Notice but not the reference to rule 29, which remains incorrect.

I am aware, from experience in the First-tier Tribunal, that the wording at paragraphs 5 and 6 of the Decision Notice was “free text” wording, meaning the FTT had actively chosen to include that wording itself and had decided the form that wording should take.

I note that at paragraph 8 of its Decision Notice, the FTT referred to rules 2 and 27 of the FTT Rules 2008, which are the correct provisions to consider when deciding whether to determine an appeal on the papers. Once again, from my experience in the First-tier Tribunal, I am aware that this wording is inserted automatically into a Decision Notice where the FTT ticks a box in the online system that confirms it has decided an appeal on the papers. The online system will then insert into the Decision Notice the specific wording that appears in paragraph 8 of the FTT’s decision. The FTT therefore did not choose the wording in paragraph 8 of the Decision Notice dated 27 August 2024.

In my assessment, the reference in paragraph 8 of the Decision Notice to rule 27 does not, of itself confirm the FTT actively considered the correct rules when determining AM’s appeal on the papers. It is contradicted by what the FTT wrote elsewhere. In particular, when it explained the choice it made to proceed on the papers, the FTT consistently referred to rule 29, which was incorrect. See paragraph 5 of Decision Notice, paragraph 7 of Statement of Reasons. In addition, when the FTT corrected the wording in paragraph 5 of its Decision Notice, the FTT did not identify and change the incorrect reference to rule 29.

I am therefore satisfied the FTT made a material error of law in misdirecting itself in law about which rules it was applying when deciding whether or not to determine AM’s appeal on the papers.

Separately, for the reasons Mr Razzaq has set out in his submissions, I am satisfied the FTT made a material error of law by failing to explain why it decided it was fair and just to determine AM’s appeal on the papers.

I note that AM suggests the Judge was not to blame for deciding her appeal on the papers as she requested this. However, rule 27 of the FTT Rules 2008 and the case law decided about it, confirm the FTT is required to hold an oral hearing of an appeal unless it is satisfied it can proceed on the papers. The case law confirms it is not enough for the FTT to decide that no party asked for a hearing. Instead, the FTT must go further and also conclude that it can fairly and justly decide the appeal on the papers and it must explain why. The FTT has not done this in AM’s case, and it is this which creates a material error of law.

For the reasons set out at paragraphs 20 to 28 above, which reflect Mr Razzaq’s helpful submissions, I am satisfied, on the balance of probabilities, that the FTT made material errors of law in determining AM’s appeal.

AM argues the FTT made an error of law by not deciding her appeal on the basis of the evidence she has provided about her condition now, which she also says is worse than it was when she claimed PIP in 2023.

The law says that the FTT could not take into account any changes in AM’s medical conditions, or how they affected her ability to do the PIP activities, if the changes occurred after DWP’s decision on 05 March 2024. This is set out in section 12(8)(b) of the Social Security Act 1998, which applies when an FTT decides a benefit appeal. The FTT therefore did not make any error of law in not taking into account any worsening in AM’s conditions after 05 March 2024.

Since AM has explained that her conditions have got worse since 05 March 2024, if she wants those changes to be taken into account, AM would need to contact DWP and inform it that her condition(s), or the effects of them, have got worse, to decide whether she needs to make a new claim for PIP.

I have decided the FTT’s decision involved material errors of law. I have decided to use my discretion to set aside the FTT’s decision dated 27 August 2024. I do so, using the legal power in section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Section 12 of the 2007 Act requires me either to remit (send back) the case to the First-tier Tribunal to decide afresh, or to decide the case myself.

Neither party has specifically asked me to remake the decision. In any event, this is an appeal were further facts need to be found, and the FTT is best positioned to make them given it will include the expertise from a medically qualified member and a disability qualified member. The First-tier Tribunal, with its medical and disability expertise, is better placed than an Upper Tribunal Judge to evaluate all the evidence and to make appropriate findings of fact.

I therefore remit AM’s appeal to be reheard before a new First-tier Tribunal. It will make a fresh decision about whether she should be entitled to PIP.

Although I have set aside the FTT’s decision dated 27 August 2024, I am not making any findings, or expressing any view, about whether AM should be entitled to PIP. The next First-tier Tribunal will need to hear evidence, make its own findings of fact, and provide its reasoning for the decision it reaches.