M.H. v Secretary of State for Work and Pensions

The Appellant’s grounds of appeal, as set out in the representative’s submission dated 28 May 2025, are on the face of it arguable. They may be summarised as follows. Ground 1 is that the FTT erred in law in drawing impermissible inferences from the absence of secondary care input. Ground 2 is that the FTT erred in law by disregarding the Appellant’s claimed PTSD difficulties in the absence of a formal diagnosis. Ground 3 is an adequacy of reasons challenge. Ground 4 is that the FTT erred in law by making assumptions about the capacity for personal self-care based on the Appellant’s ability to care for his pets.

However, it may be that the grounds are really seeking to re-argue the factual merits of the case, in which case the appeal cannot succeed. So the fact that permission to appeal has been granted should not be taken as any indication of the likelihood on closer scrutiny of the appeal succeeding.

There is one further matter to note which the Appellant’s representative does not raise which may be labelled as Ground 5. The FTT describe the required period condition for the purpose of establishing entitlement to PIP as referring to 9 months before the date of claim and 3 months after the date of claim (see SoR paras 2 and 24). It is, of course, the other way round – see Social Security (PIP) Regulations 2013 regulations 12-14. It may be, however, that this error was not material to the outcome of the appeal. However, at the very least it does not inspire confidence.

… I shall address the grounds in the order they are listed above, joining some together where there is an overlap. On considering the first ground about inferences from the absence of secondary care input, the Tribunal stated in the SOR (UT Bundle page 18, para 7) that the appellant had “confirmed that he had not had any secondary care input, had not seen a psychiatrist, and had not been to hospital due to his mental health.” The Tribunal continue in the same paragraph to state that the appellant “described himself as having PTSD from his last work but it became clear, on questioning, that it was simply an assertion he had made because his advisor has said he was likely to have it.” This brings in the second ground about the Tribunal disregarding the appellant’s claimed PTSD difficulties in the absence of a formal diagnosis.

The Tribunal have likely erred on both grounds when you take into account MM v SoSWP (ESA) [2018] UKUT 446 (AAC). The lack of a diagnosis and/or secondary treatment is not enough to state the appellant is not suffering a condition or their condition is stable. Also, it is stated in the SOR (UT Bundle page 18, para 7) that the appellant “had been contacted by an organisation, possibly some form of talking therapies, but said that did not find it beneficial.” This would indicate that he has had some further input and the Tribunal may have benefited from questioning further on why there was no secondary input and diagnosis as this could have impacted its decision with respect to the impact of his mental health conditions.

Moving on to the third ground about an adequacy of reasons challenge. The Tribunal stated in the SOR (UT bundle page 19, para 9) that “the lack of regular monitoring by the diabetic nurse was indicative that this limited testing was not likely to the result in a deterioration of his health.” In the same paragraph the Tribunal have quoted the appellant as stating “he does not test his blood as he has a fear of needles.” However, earlier in the SOR at paragraph 4, the Tribunal stated that the appellant “was referred to the vascular surgeon 2 to 3 years ago was told that they would not operate in his varicose veins because his sugar levels were too high and he has not seen the surgeon since.” This indicates that there is a problem with managing his health condition and the Tribunal would have benefited from further questioning to clarify why there was so little input from the diabetic nurse, particularly with the appellant’s fear of needles.

Similarly, throughout the SOR the Tribunal have stated that the appellant stated in the PIP2 questionnaire that they didn’t have any difficulties with Daily Living and Mobility activities but then don’t appear to address the appellant’s statements at the mandatory reconsideration stage (detailed in the Tribunal Bundle at page C) and at the appeal stage (the Tribunal bundle page 3 and addition A pages 1-14). This indicates that not all evidence in front of the Tribunal was considered, or had not drawn them to ask further questions. In any event, the fact the Tribunal did not address this material evidence in its SOR is tantamount to providing inadequate reasons.

This leads into the fourth ground where the Tribunal have made assumptions on the appellant’s capacity for personal self-care based on their ability to care for pets. In the SOR (UT bundle page 5, para 13) the Tribunal stated that the appellant had told the HP he was “washing and drying his pets once a week.” The Tribunal concluded that “his ability to care for his pets was indicative of the level of functioning where the Appellant would be motivated to wash and bathe himself as well as dress himself on a daily basis.” The Tribunal have not clearly explained how caring for his pets means he cares for himself. Furthermore, it is clear from the SOR that tasks such as washing the pets is occurring once a week, which may account for variability in motivation. This point needed further expanding upon in the SOR.

The last ground is a concerned raised by the UT Judge regarding the required period. In the SOR (UT bundle page 16, para 2 and page 23, para 24) the Tribunal stated that the required period is nine months before and three months after the effective date. It is, as the UT Judge has pointed out, the other way round. On the balance of probabilities, it appears that this was more than a ‘slip of the pen’ as at several points the Tribunal states it could not consider factors following the effective date, or ‘relevant period’ the most damning being at paragraph 19 of the SOR:

“19…From the information given to the healthcare professional this appeals to have been approximately three years prior to the effective date. In his oral evidence, given in November 2024, he stated that he had been all right until September 2023 when he described the left sole of his foot having come away. This was seven months after the effective date.”

Reading the Tribunal’s reasons as provided in paragraph 19 one can infer that it refused to consider the incident of the claimant’s foot having come away in September 2023 due to it being seven months after the effective date, but this would not have been an issue had the Tribunal correctly applied the required period, noting the 9 month prospective period commenced from the effective date, not leading into it. Therefore, it is my submission that the Tribunal has erred in law regarding the required period condition.

Although the Tribunal is entitled to give weighting to whatever evidence that it chooses, it must in the first instance explore and consider it in a holistic manner and provide sufficient reasons explaining why it preferred the evidence that it had. In this appeal the Tribunal does not appear to have done that. As such, I submit that the Tribunal have failed to give adequate reasons as to why evidence in parts was not accepted when deciding not to award points. 

Nicholas Wikeley

Judge of the Upper Tribunal