LB v Secretary of State for Work and Pensions

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

The reconsideration must be undertaken in accordance with KK v Secretary of State for Work and Pensions [2015] UKUT 417 (AAC).

If the parties wish to send any further evidence, including medical evidence, to the Tribunal, it must be sent to the HMCTS ASC Birmingham office as soon as possible. If they cannot send this material within 4 weeks of the issue of this decision the parties will need to contact that office to let them know that further evidence is expected.   

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

The Appellant has appealed against the decision of the First-tier Tribunal, dismissing her claim to Personal Independence Payments (PIP). The Secretary of State’s representative has supported the appeal, saying that there was an error of law in the tribunal’s decision and inviting the Upper Tribunal to send the case back to the tribunal for rehearing. The Appellant has agreed, and both parties have agreed to a decision with reasons.

Given that agreement, all I need do is to say shortly why I have set aside the tribunal’s decision and explain what is meant by a rehearing. It is not necessary to set out the history of the case or to analyse the evidence and arguments in detail.

I have set the tribunal’s decision aside because it made insufficient findings of fact and did not show in its reasoning that it had considered all the evidence, including the medical evidence (including GP records), which the Appellant relied on in support of her case.

The Tribunal considered the Appellant’s own evidence at some length and in detail. It reached the conclusion that her evidence was unreliable and that the HCP’s assessment was to be preferred (see paragraph 30 of the Statement of Reasons). It then continued:

“31.

The Tribunal went on to consider what evidence it felt that it could safely rely upon as to the extent of the appellant’s restrictions having regard to the PIP activities. The Tribunal could see independent evidence from the appellant’s occupational health records of some challenges interacting with colleagues at work and on balance acquiesced to the request made by the appellant’s experienced representative that an award of 9b for social engagement was appropriate. While the appellant appeared able to communicate well there was evidence of some social challenges which would potentially be consistent with her diagnosis of autism. The Tribunal also noted reference within the bundle to a Mint overlay for reading which the Tribunal found to be consistent with the nature of the appellant’s dyslexia diagnosis. The Tribunal felt that it could rely upon the evidence within the bundle to this extent. However, in light of the above, the Tribunal felt unable to rely upon the appellant’s evidence and was unable to find sufficient evidence to award sufficient points to justify an award of either component of the PIP benefit.

32.

The outcome therefore is that the appellant is not entitled to the PIP benefit.”

I accept the submissions of the Secretary of State’s representative, who has noted that “….the FtT have gave little to no explanation to what evidence they have used in the decision-making process…”. The Secretary of State notes that the tribunal has not explained what it made of the evidence of anxiety and mental health issues, when reaching its negative conclusions upon the Appellant’s credibility. The Secretary of State has further submitted:

“Although the FtT is entitled to give weighting to whatever evidence that it chooses, where there is conflicting evidence, 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 FtT does not appear to have done that. There appears to be a distinct lack of reference to the medical evidence and that provided by the appellant representative which demonstrate the long-standing nature of her health conditions. Therefore, it could be said that had the FtT given appropriate consideration to all the evidence, including accurately identifying the effects of the appellant’s conditions, the FtT may have considered the appellant’s limitations. As such, I submit that the FtT have failed to give adequate reasons as to why evidence in parts was not accepted when deciding not to award points.”

I accept this as a general summary of the Tribunal’s failure to show that it had considered all the evidence before it, including the medical evidence relied upon by the Appellant, and what it made of this as part of its fact-finding, whether on the Appellant’s credibility or the specific descriptors. The treatment of the specific descriptors relied on is essentially limited to the reasons set at paragraph 31, set out above, and does not address the individual elements of each.

For these reasons, the decision will be set aside and the case reheard.

For the benefit of the claimant, this is the effect of the decision in KK to which I have referred in my directions.

The tribunal must follow the directions I have given.

The rehearing will not be limited to the grounds on which I have set aside the tribunal’s decision. The tribunal will consider all aspects of the case, both fact and law, entirely afresh.

Nor will the tribunal be limited to the evidence and submissions that were before the tribunal at the previous hearing. It will decide the case on the basis of the relevant evidence and submissions made at the rehearing.

The tribunal must come to its own conclusions on the issues of both fact and law that it considers. Nothing in my decision or in my reasons for it is an indication of the likely outcome of the rehearing. Nor will the tribunal be bound by any conclusions of fact or law reached by the tribunal in the decision that I have set aside.