Appeal No. UA-2025-000058-PIP
In The Upper Tribunal
Administrative Appeals Chamber
Between:
CNW
Appellant
-v-
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Church
Decided on consideration of the papers
Representation:
Appellant: Joe Power, Kirklees Law Centre
Respondent: Eyituoyo Sakpa, Decision Making and Appeals (DMA) Leeds
On appeal from:
Tribunal: First-tier Tribunal (Social Entitlement Chamber)
Digital Case No.: SC246/23/00870
Tribunal Venue: Huddersfield
Decision Date: 25 June 2024
SUMMARY OF DECISION
This appeal turns on the particular facts of the case and is not likely to be of more general application. Therefore no summary is provided.
DECISION
As the decision of the First-tier Tribunal involved the making of an error of law, it is SET ASIDE under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 (the “2007 Act”) and the case is REMITTED to the First-tier Tribunal under section 12(2)(b)(i) for rehearing before a differently constituted panel.
DIRECTIONS FOR THE REHEARING
The First-tier Tribunal must (by way of an oral hearing) undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the First-tier Tribunal’s discretion under Section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.
The First-tier Tribunal hearing the remitted appeal shall not involve the members of the panel who heard the appeal on 25 June 2025.
In reconsidering the issues raised by the appeal the First-tier Tribunal must not take account of circumstances which were not obtaining at the date of the original decision of the Secretary of State under appeal. Later evidence is admissible provided it relates to the time of the decision: R(DLA) 2 & 3/01.
If the claimant has any further evidence to put before the First-tier Tribunal this should be sent to the regional office of Her Majesty’s Courts and Tribunals Service within one month of the date on which this decision is issued. Any such further evidence must relate to the circumstances as they were at the date of the decision of the Secretary of State under appeal (see Direction 3 above).
The First-tier Tribunal hearing the remitted appeal is not bound in any way by the decision of the previous First-tier Tribunal. Depending on the findings of fact it makes the new panel may reach the same or a different outcome from the previous panel.
REASONS FOR DECISION
Background
The Appellant (to whom I shall refer as the “claimant”) claimed a Personal Independence Payment (“PIP”) on 10 January 2023. On 18 April 2015 the Secretary of State for Work and Pensions (“SSWP”) informed her that she had been award 6points only in respect of the daily living activities (1b, 4b and 9b) and no points in respect of the mobility activities, and this was insufficient to qualify for any award of PIP from 10 January 2023 (the “SoS Decision”). The claimant was unhappy with the SoS Decision and requested a mandatory consideration. However, the SoS Decision was confirmed on mandatory reconsideration. The claimant then appealed the SoS Decision to the First-tier Tribunal.
On 25 June 2025 a three-member panel of the First-tier Tribunal convened at Huddersfield to hear the claimant’s appeal (the “Tribunal”). Having heard evidence and argument, the Tribunal dismissed the claimant’s appeal and confirmed the SoS Decision (the “FtT Decision”).
The permission stage
The claimant applied to the First-tier Tribunal for permission to appeal the FtT Decision to the Upper Tribunal. That application was dismissed by a salaried Tribunal Judge. The claimant then exercised her right to apply to the Upper Tribunal for permission to appeal and the matter came before me.
In my grant of permission (which was addressed to the claimant) I explained my reasons for granting permission as follows:
“6. Joe Power of Kirklees Law Centre has made detailed criticisms of the FtT Decision in his letter of 9 September 2024, arguing that the Tribunal may have erred in:
a. failing to make adequate findings of fact in relation to matters that you had put in issue and which were relevant to the scoring of your ability to manage the PIP activities set out in Schedule 1 to the PIP Regulations;
b. giving inadequate reasons for its decision; and
c. misunderstanding or misapplying the proper test for entitlement to points in relation to mobility activity 1(d) or (f).
7. I am satisfied by Mr Power’s arguments that these grounds are arguable with a realistic prospect of success.
8. This justifies a grant of permission to appeal to the Upper Tribunal.”
I made Case Management Directions for the parties to make submissions on the substantive appeal and to indicate whether they requested an oral hearing.
The positions of the parties
The representative for the Secretary of State indicated support for the appeal on the basis that the Secretary of State considered that the Tribunal had erred in failing properly to apply the test under regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 (the “PIP Regulations”) in assessing the claimant’s ability to carry out the activities set out in Schedule 1 to the PIP Regulations safely, to an acceptable standard, repeatedly and within a reasonable time period.
In particular, it was argued on behalf of the SSWP that:
in relation to daily living activity 3 (Managing therapy or monitoring a health condition) while the Tribunal accepted that the claimant might occasionally miss a dose of her medication, or take a dose late (as, the Tribunal observed, most people do), and it acknowledged that the HCP report reported her as having said that she “needs reminding to take medication due to getting distracted”, the Tribunal did not exercise its inquisitorial function to ask how often she required reminding to take her medication, which was necessary to decide whether she was managing the activity safely and to an acceptable standard;
in relation to daily living activity 6 (Dressing and undressing), while the Tribunal recited the HCP’s reporting that the claimant’s husband had to help her dress “a few times a month”, but she needed help with her socks and shoes more often” (see paragraph 30 of the Tribunal’s written reasons), it failed to make factual findings about how often the claimant’s husband was required to help her with her socks and shoes, and it failed adequately to deal with the claimant’s evidence that she experienced pain when dressing and undressing including experiencing pain, and pain is a relevant factor when considering whether a claimant can perform an activity to an acceptable standard (per PS v SSWP [2016] UKUT 326 (AAC));
in relation to the first mobility activity (planning and following a journey) the Tribunal failed adequately to explain what it made of the claimant’s evidence that she had not gone out on her own for about 9 years, and in assessing the claimant’s ability to plan and follow journeys it took into account irrelevant matters, including its assessment that the claimant was “tech savvy”, had married in the company of 40 people, she ran on online shop on Etsy and was a social media influencer with 19,000 followers. It was also argued that the Tribunal failed to take into account relevant matters, including the fact that the claimant had been awarded points in respect of descriptor 15c under Schedule 6 to the Universal Credit Regulations 2013.
The SSWP’s representative said that these amounted to material errors of law and invited me to set the FtT Decision aside and remit the matter to be reheard by another tribunal.
The claimant’s representative had no further comment to make. Neither party requested an oral hearing.
Given the degree of agreement between the parties, I decided that the interests of justice did not require an oral hearing.
Analysis
At the permission stage I was required to consider whether it was “arguable” that the Tribunal erred in law in a way that was material. At the substantive stage I must consider whether the Tribunal did in fact err in law and whether such error was material.
For the same reasons given by the claimant’s and Respondent’s representatives I am persuaded that the Tribunal did err in the ways summarised above under “The positions of the parties”, and I am persuaded that had the Tribunal not made those errors the outcome of the appeal might have been different.
Having found that the Tribunal erred in law in a way that was material, I consider that the interests of justice require me to exercise my discretion under section 12(2)(a) TCEA 2007 to set the FtT Decision aside.
Disposal
Having decided to set aside the FtT Decision under section 12(2)(a) of TCEA 2007 I have a discretion whether to remit the matter to the First-tier Tribunal for redetermination, or to remake the decision for myself.
Because further facts need to be found, and because the First-tier Tribunal with its expert members is the most appropriate forum for finding such facts, I exercise my discretion to remit the matter to the First-tier Tribunal to redetermine the appeal.
Authorised for issue on: 17 November 2025 | Thomas Church |