KL v The Secretary of State for Work and Pensions

This case is remitted to the First-tier Tribunal (“FtT”) for reconsideration of possible entitlement to points for mobility activity one only, at an oral hearing.

It must be heard by an entirely fresh panel.

The FtT must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the FtT’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

The new FtT is not bound by the decision of the previous FtT. Depending on the findings of fact it makes, the new FtT may reach the same or a different conclusion to the previous FtT. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the FtT to which this case is remitted.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the FtT.

The appellant requests an oral hearing. However such a hearing would cause delay, and it seems from her written submissions that the appellant would like to use the hearing to present evidence as to her claimed disabilities. That would not be relevant to the issues before me. I am satisfied that I can deal with the case fairly on the papers, and that it is in the interests of justice that I do so.

The appellant made a claim for Personal Independence Payment (PIP) on 29/11/2022. She had a telephone assessment with a Healthcare Professional (HP) on 07/03/2023. The appellant was not awarded any points for any of the daily living or mobility activities. A decision letter was issued to the appellant on 07/03/2023.

A mandatory reconsideration request was received from the appellant on 03/04/2023. Again no points were awarded for any activity..

The appellant lodged an appeal with the Tribunal on 07/06/2023. Following a hearing on 10/01/2024, the Tribunal refused the appeal and confirmed the SofS decision dated 07/03/2023. The appellant applied for and was denied permission to appeal from the FtT.

Following an oral hearing on 10/1/24 UTJ Smith rejected the appellant’s stated grounds of appeal. However she identified a different arguable error of law.

The live issue in the case is the possible impact of the appellant’s mental health conditions on mobility activity 1 (planning and following journeys)

Giving permission to appeal UTJ Smith said:

I was not entirely persuaded by all of the respondent’s submissions, which seemed to me in part to be a disagreement with the weight put on various items of evidence by the FtT. The weight to be put on evidence is a matter for the FtT provided it acts reasonably. I saw no evidence that it had not done so.

The respondent noted the FtT found that the appellant had been experiencing varying degrees of mental health difficulties for an ongoing period. They also note that the FtT found that mental health difficulties do not impair her functional abilities. As to the FtT’s assessment of mobility activity one, the respondent is critical that the FtT did not resolve inconsistencies in the appellant’s evidence, in particular by expressly considering the date at which she had given evidence of being able or unable to carry out particular journeys. They go on to say:

“the Tribunal focused heavily on journeys that are in my view familiar to the claimant, those being the trips to the nursery; walking her dog and going to the local shops as reported in the UC85 report. There is little consideration of her ability to follow the route of unfamiliar journeys, which is what she reported to have difficulty with due to her mental health. Even if she does go on unfamiliar journeys alone, as stated in paragraph 35, the Tribunal does not consider how she was doing this and whether she was doing in in accordance with regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013.

As noted by the Tribunal there were occasions where the claimant had reported the use of a taxi, on some occasions with her partner or a friend, and on othersalone. The claimant reported that the main reason she uses a taxi is due to her reported anxieties around using methods of public transport such as buses [page 93]. The Tribunal has failed to take this into consideration when making its findings of fact. By overlooking this evidence and failing to address this in the SoR it is again the narrow approach it has taken with its fact finding in relation to the claimant’s ability to plan and following journeys. As established by UT Judge Wikeley in JC V SSWP (PIP) [2019] UKUT 181 (AAC) one must consider a claimant’s ability to follow the route of journeys in a holistic manner, encompassing use of public transport. It is clear from the SoR that the Tribunal has failed to make adequate findings of fact on the claimant’ ability follow the route of a journey in a holistic manner as it has not addressed her evidence of anxiety and panic when using public transport.

I agree with the respondent on this point; that the discussion of the possible impact of mental health concerns on mobility activity one is not sufficiently reasoned. I have in mind the SPT’s practice direction on reasons dated 4 June 2024, and the cases referred to in it, and while the FtT’s reasons in this case were inadequate that was a finely balanced decision. It would not have taken a great deal more exposition to have been on the right side of the line. In particular (while an assessment of the appellant’s credibility will now be a matter for the new FtT) had the FtT been a little more explicit about what it meant by “In relation to planning and following journeys, the Tribunal found the evidence of the appellant to be inconsistent and unreliable” and how that related to what they then recorded the appellant as saying, the overall analysis may have been adequate. I note UTJ Smith felt the FtT had accepted the appellant’s evidence that she has a person on the phone with her when she is in a taxi on her own, but I cannot tell from the SoR if they did accept that or not, or if they did accept it if they also accepted that was to manage anxiety as opposed to, say, because she wanted a chat, and if they had made both of those findings in favour of the appellant I cannot tell how they related them to mobility descriptor 1(d) and/or 1(f).

The respondent’s points concerning the dates on which the appellant has said she can carry out certain activities, and the rather truncated discussion of unfamiliar journeys, also have some force.

Taken together these criticisms create enough uncertainty in the reasoning as to amount to an error of law.

The appellant goes further than the respondent and says that the FtT relied on irrelevant evidence. She also says (in effect) that the FtT reached conclusions not open to it on the evidence. I firmly reject those points. The error was in not expressly weighing (or adequately recording weighing) the apparently conflicting evidence on mobility before reaching a conclusion. That is a narrow point. I do not consider that the FtT referred to any irrelevant evidence and (although it must now retake the decision afresh) I do not consider that the result of the decision appealed was outside the range of decisions that a reasonable FtT could have taken.

Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I therefore set the FtT decision aside in so far as it relates to mobility activity one only and remit the case to be reconsidered by a freshly constituted panel.

I stress that this appeal having succeeded carries no implication as to whether the FtT will or will not now reach a decision that is more favourable to the appellant. That is a matter for it.