JM v Secretary of State for Work and Pensions

The decision of the First-tier Tribunal sitting in Sunderland on 12 February 2025 under reference1714050053623831 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 to give listing and case management directions.

Both the appellant and the respondent agree that the decision of the tribunal was made in error of law. The Secretary of State has indicated that they are content for this matter to be dealt with without reasons and on the papers. No reply has been received from the appellant.

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.

To assist the First-tier Tribunal (‘FTT’) on remittal, I produce below the concerns ventilated by Upper Tribunal Judge West in granting permission in this Personal Independence Payment (‘PIP’) appeal:

“I accede to the claimant’s application and grant her permission to appeal. It seems to me that there is an arguable case that the Tribunal erred in law in relation to daily living activity 9. In particular, in relation to daily living activity 9, was not the appellant potentially entitled to points for either descriptor 9(b) or descriptor 9(c) in the light of the decisions in SF v. Secretary of State for Work and Pensions (PIP)[2016] UKUT 543 (AAC) (that the claimant engaged effectively with the healthcare professional or could attend for hospital appointments was not sufficient) and HA v. Secretary of State for Work and Pensions (PIP) [2018] UKUT 56 (AAC) (that the claimant could engage effectively only with others who were already known to him/her was not sufficient)? Was paragraph 29 of the statement of reasons adequately reasoned?”

The Secretary of State supports this appeal. In answer to the questions posed by Judge West, the Secretary of State submits:

“…having reviewed the entirety of the evidence bundle and SOR, the Tribunal has failed to give adequate reasons for their findings in relation to daily living activity 9. The Tribunal provided their findings regarding the activity in paragraph 29 of the SOR, rejecting the claimant’s reported restrictions as there was “no recorded mental health issue of such severity in her medical notes that would prevent her from socialising as per the descriptor.” However, this conclusion seems at odds with the Tribunal having recorded earlier at paragraph 14 of the SOR that the claimant’s ‘conditions at the time of her claim are Depression and Anxiety’…

…. it is not clear how the Tribunal have reached their conclusion, as they do not appear to have engaged fully with their inquisitorial role.

…The Tribunal does not appear to have considered possible reasons for this lack of engagement, or whether it may be indicative of the claimant’s mental health condition.

I also note that in paragraph 17 of the SOR the Tribunal stated that the HP undertook a mental health test, and did not record any findings. The mental state examination conducted during the HP assessment did not record any unusual findings, although of note is that the assessment was undertaken by telephone. I also note that the claimant reported their mental health to be variable, and that the day of that assessment was what they considered to be a good day [pages 188 and 192 of the Tribunal appeal bundle]. Additionally, the Universal Credit medical report dated 16/08/2023 was also conducted by telephone, but it was recorded that the claimant did sound anxious at times, and had some difficulty coping with the assessment [page 247 of the Tribunal appeal bundle]. Finally, paragraph 9 of the SOR confirms that the hearing on 12/02/2024 was held by telephone. This was after the hearing for a decision on the papers was adjourned on 19/11/2024 to allow the claimant to reconsider having either a face-to-face or telephone hearing [page 1, Addition C of the Tribunal appeal bundle]. The common factor being that none of this evidence was gathered in a face-to-face setting, so while it demonstrates an ability to communicate, it does not provide a wholly accurate or reliable reflection of the claimant’s ability to engage with a wide range of people face-to-face.”

I adopt the reasoning articulated by Judge West in granting permission to appeal, together with the submissions advanced on behalf of the Secretary of State. In these circumstances, I am bound to allow the appeal.

In my judgment, the decision of the FTT discloses an error of law. Specifically, the FTT failed to provide adequate reasons for its findings on material matters relating to daily living activity 9.

Although the tribunal sought to provide comprehensive reasons, its findings do not demonstrate that it adequately discharged its inquisitorial role. As the Secretary of State correctly observes, in Hickey v Secretary of State for Work and Pensions [2018] EWCA Civ 851, the Court of Appeal stated:

“51… the FTT is able to adopt an inquisitorial role to establish, through its questions and general approach, the evidence necessary to form a cogent view of the claim. The experience and make-up of the FTTs who deal with these appeals make them uniquely suited to ask the necessary questions and reach the appropriate conclusions…”

This issue is material because, to be entitled to the standard rate, the claimant would need to be awarded eight points. An award of two points under descriptor 9(b) (needs prompting to be able to engage with other people) would have resulted in eight points and thus been material to the outcome. An award of four points under descriptor 9(c) (needs social support to be able to engage with other people) would also have enabled her to reach and exceed the threshold.

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.