GS v Secretary of State for Work and Pensions

The decision of the First-tier Tribunal sitting in South Shields on 20 November 2024 under reference 1695376566537777 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. Both the Secretary of State and the appellant/their representative 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 submissions and 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, as I have already decided to allow the appeal in the appellant’s favour.

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

“The grounds put forward by the Appellant seem to me arguable. In a nutshell, the explanation given at [50] of the tribunal’s decision, for why they did not find the evidence of the appellant’s having limited capability for work and for work-related activity (for universal credit purposes) relevant or persuasive, arguably indicates that, despite what it said at [11], the tribunal did not turn its mind to the appellant’s ability to stand and then move 50m repeatedly (i.e. as often as reasonably required to be completed) (a material matter, as inability to do so would have given the Appellant sufficient points for an award of personal independence payment) (or, if it did turn its mind to this, it did not adequately explain its conclusion).”

The Secretary of State supports this appeal. I produce the relevant parts below, again in order to assist:

“2

The Tribunal stated in the SOR (the Tribunal bundle addition F page 3, para 49) that “This Tribunal is not bound by the decision of another first tier Tribunal.” Whereas this may be correct, the Tribunal are able to consider the evidence from this decision. The Universal Credit decision notice provided (the Tribunal bundle addition D page 2, para 6) states that the Tribunal considered “in particular the medical evidence supplied…” and that the appellant “…had significantly reduced mobility due to short distance claudication in the left calf.” It is not clear what this evidence is or how they reached the conclusion of the appellant’s mobility or if this would be in keeping with the considerations under PIP.

3

At para 50 of the SOR the Tribunal stated that “The test for mobilising for fitness for work is not the same as the test for PIP and requires him to be able to repeat the action at short intervals. It is also worth not that the decision does not on the face of the decision notice appear to have taken into account the ability to propel a manual wheelchair.” It is not clear if the Tribunal are meaning that the ability to propel a wheelchair is a consideration for PIP mobility activity 2. In the considerations for PIP, aids and appliances can be considered that a person uses to support their physical mobility. This may include walking sticks, crutches and prostheses. This does not include the use of a wheelchair. The Tribunal have not made it clear that this is a difference in the considerations, and that the use of a wheelchair has not been considered.

4

The Tribunal stated in the SOR (the Tribunal bundle addition F page 1, para 11) that “In relation to all the activities the Tribunal considered the ability perform them safely, to an acceptable standard, repeatedly and within a reasonable time period at least 50% of the time (Reg. 4(2)(A) and 7 The Social Security (Personal Independence Payment) Regulations 2013.”

5

In the consultation report (the Tribunal bundle page 55) the appellant was quoted that he “…has 'alrightish' days and he states the majority of the time he is having bad days. He states with the weather being cold it does not help. He is having around 5 days a week which are bad and he states the rest is alrightish days. He states on his bad days he will experience pain as soon as he wakes up and he will have constant pain in his knees. He will plod on and he will be able to manage on these days.” It is not clear that this was investigated further to evidence the appellant’s ability to mobilise on good and bad days. Does it vary on the bad days or is it similar? Although the Tribunal have stated they have considered this, it is their duty to make it clear how the evidence supports their findings. Did they consider or investigate if the ability to mobilise was a daily occurrence or if there were days where they couldn’t mobilise at all and how often? It is not clear from the SOR that this was the case.”

I adopt the reasons and concerns already articulated by Judge Citron in his initial decision to grant permission to appeal and the submissions advanced on behalf of the Secretary of State.

In my judgment, the decision of the FTT contains an error of law. Specifically, the FTT failed to adequately explain why it did not find the evidence that the appellant had limited capability for work and for work-related activity (for Universal Credit purposes) relevant or persuasive in relation to his PIP claim when awarding 4 points for Mobility activity 2B, rather than a higher scoring descriptor.

Although the tribunal is entitled to give weight to whatever evidence it chooses, where there is conflicting evidence, it must in the first instance consider the position and provide sufficient reasons explaining why it came to the conclusion it did. Not being bound by the UC decision does not in itself sufficiently explain why the tribunal formed a different view.

While the tribunal has attempted to be comprehensive, it is clear to me that there is a lack of reference to the evidence provided by the appellant and the medical evidence that demonstrates the long-standing nature of his health conditions. Had the tribunal given appropriate consideration to all the evidence, including focusing more on the effects of the appellant’s conditions, the tribunal may have come to a different conclusion in terms of the appellant’s limitations. 

The tribunal has failed to give adequate reasons for why parts of the evidence were not accepted when deciding not to award points or why it took the approach it did. There is a disconnect for both parties in that neither consider the reasons enable them to understand the basis upon which the matter was determined and the conclusions reached on the principal and important issues. That is apparent from the Secretary of State’s submission.

Accordingly, I direct that this case be remitted to a differently constituted tribunal for a complete rehearing.

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