Appeal No. UA-2025-001400-PIP
Between:
S.H.
Appellant
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Wikeley
Decided on consideration of the papers
Representation:
Appellant: Mr Allan Reynolds, Derby City Council
Respondent: Mr R Naeem, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-Tier Tribunal (Social Security and Child Support)
Panel: Tribunal Judge S. Oakes, Mr M. Herriott and Dr A. Rahman
Tribunal Case No: SC309/23/01187
Digital Case No: 1695026692090007
Tribunal Venue: Birmingham CJC
Hearing Date: 15 April 2025
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with this decision and the following directions.
DIRECTIONS
This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.
The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 15 April 2025.
The Appellant is reminded that the tribunal can only deal with the appeal, including her health and other circumstances, as they were at the date of the decision by the Secretary of State under appeal (namely 7 July 2023).
If the Appellant has any further written evidence to put before the tribunal and, in particular, further medical evidence, this should be sent to the HMCTS regional tribunal office within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).
The new First-tier Tribunal is not bound in any way either by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.
These Directions may be supplemented by later directions by a Tribunal Legal Officer, Tribunal Registrar or First-tier Tribunal Judge.
REASONS FOR DECISION
Introduction
The Appellant’s appeal to the Upper Tribunal succeeds and there will need to be a completely fresh hearing of the original Personal Independence Payment (PIP) appeal before a new First-tier Tribunal (FTT).
The Upper Tribunal’s decision in summary and what happens next
I allow the Appellant’s appeal to the Upper Tribunal, which has the support of the Secretary of State’s representative. The decision of the First-tier Tribunal involves a legal error. For that reason, I set aside the Tribunal’s decision.
The Appellant’s case now needs to be reheard by a new and different First-tier Tribunal. I cannot predict what will be the outcome of the re-hearing. So, the new tribunal may reach the same, or a different, decision to that of the previous Tribunal. It all depends on the findings of fact that the new Tribunal makes.
The factual background
The Appellant had previously been awarded the standard rate for both the daily living component and the mobility component from 5 July 2019 to 26 June 2023. However, following a review, a decision was made on 7 July 2023 that she was no longer entitled to an award of PIP for either component. The Appellant appealed to the FTT. The FTT found that she scored 3 daily living points but in substance dismissed her appeal against the disallowance of her PIP claim.
The grounds of appeal
The Appellant’s grounds of appeal were set out by her representative in a detailed letter dated 28 July 2025. In summary, the grounds were that the FTT had failed to interpret the law correctly (especially regulation 7 of the Social Security (PIP) Regulations 2013) and had failed to provide adequate reasons for its decision.
The Secretary of State’s representative in these proceedings supports the appeal. He sets out his analysis as follows:
Permission to appeal has been granted by UT Judge Wikeley as the grounds of appeal are arguable. In seeking permission to appeal the claimant’s representative has submitted that the Tribunal has misinterpreted the law, specifically regulation 7 of the Social Security (Personal Independence Payment) Regulation 2013 (PIP regs 2013).
I note at paragraph 9 of the Statement of Reasons (SoR) The Tribunal recorded that it had accepted the claimant has been diagnosed with schizophrenia, anxiety and depression, back pain and was on the waiting list for gastric sleeve weight loss surgery. At paragraph 10 of the SoR the Tribunal has noted that as the claimant was historically non-compliant with her medication regime when managing her schizophrenia, she was moved to having depot injections administered under a community mental health team. The Tribunal found that due to this intervention, the claimant’s mental health had stabilised.
As the claimant’s mental health stabilised, she was found to have commenced the process to return to her role in the nursing profession (SoR paragraph 14), starting her employment in April 2023. It is clear when reading the SoR as a whole that when making its decision the Tribunal had placed considerable weight to it finding the claimant had recommenced working. This can be seen from the SoR that when making its findings the Tribunal noted on the days the claimant was working, she had the motivation to wash and change into different clothing, and was engaging with people when at work. Although on first glance there doesn’t seem to be an issue with the Tribunal taking such an approach, it is notable that the claimant’s employment was stated to amount to 17.5 hours per week over two days. Therefore, while the Tribunal had found the claimant to be sufficiently motivated to carry out relevant daily living activities on the days she was working, there is a question as to what the Tribunal made of the remaining 5 days per week.
The days when the claimant is not working are broadly touched on, for example reference is made at paragraph 18 of the SoR to the claimant getting dressed in appropriate clothing whenever she needs to see her aunt but would otherwise remain in her loungewear. It does not seem to be clear how often the claimant sees her aunt to trigger her to change into appropriate clothing, so one has to wonder if the claimant went, say, a week without seeing her aunt then would she remain in the same loungewear all through that uninterrupted period? The matter for the Tribunal to have determined in this case was establishing how often the claimant remained in the loungewear, was it the same ones over several days, and is so, whether this was due to a preference or as a result of her mental health condition. The claimant’s own evidence as provided in the award review form suggests that on the days she was not working she needed prompting due to fatigue and depression [Tribunal bundle, pages 236 – 237].
This reliance on the claimant’s functional abilities on the days she attends work has also impacted the Tribunal’s considerations of her ability to plan and follow journeys, leading it to conclude that she can do this unaided:
“17. The Tribunal accepted that [the Appellant] drove a manual car and held an unrestricted licence. [The Appellant] used a sat nav when traveling to unfamiliar places, or her aunt accompanied her. [The Appellant] was able to drive to work and had previously driven to her work placements, the supermarket to medical appointments and medication appointments alone. The Tribunal found that whilst [the Appellant] said she may take her aunt with her if going somewhere new however she was able to the journey alone and was able to programme and follow a sat nav independently. The Tribunal determined that [the Appellant] could travel independently to new nursing placements upon her return to her career. The Tribunal found that [the Appellant] did not experience symptoms of overwhelming psychological distress before or during a journey. The Tribunal found that [the Appellant] was able to plan and travel to familiar and unfamiliar places independently and did not award any points under the descriptor of "planning and following a journey".”
As noted earlier in this submission, while the claimant may be able to undertake and follow journeys on the days she is working there does not appear to be a sufficient exploration on her ability to follow the route of unfamiliar journeys on the days she does not work. I note the reference to the claimant going to the supermarket and medical appointments, but these are arguably familiar journeys to the claimant. Where there is mention of unfamiliar journeys the Tribunal has stated the claimant use her sat nav when driving. This is unfortunately a narrow assessment of one’s ability to follow the route of a journey as there should be a holistic assessment. This was confirmed UT Judge Hemingway in SB v SSWP (PIP) [2019] UKUT 274 (AAC) (“SB”):
I would, though, wish to say something, though it is not now essential to my decision, about the tribunal’s approach to driving. If a claimant is not able to follow the route of an unfamiliar journey without another person, assistance dog, or orientation aid, then that person will score 10 points under mobility descriptor 1d. If a claimant is not able to do so with respect to a familiar journey, he will score 12 points under mobility descriptor 1f. Nothing is said in the legislation as to the mode of travel. Of course, obvious and common modes of travel are public transport, a motor car or some other private vehicle, or walking. Here, as noted, the tribunal simply considered the claimant’s ability to drive a motor car. Its enquiry did not extend to the claimant’s ability to follow the route of a journey either on foot or by utilisation of public transport.
There is, of course, the reference to public transport in the assessment guide as set out above. The representative for the Secretary of State (on my reading) says that a failure to consider a claimant’s ability to use public transport, of itself, amounts to an error of law. It seems to me though, that that erroneously elevates the ability to use public transport to too great a degree. As stated in SSWP v IV (PIP) [2016] UKUT 0420 (AAC), entitlement to PIP is governed by the Welfare Reform Act 2012 and regulations made thereunder as opposed to what is said or what is not said in the assessment guide. It is the legislation, not the guide, which has to be interpreted. Having said all of that though, I am in agreement with the Secretary of State’s representative that tribunals should not limit themselves to considering, solely, an ability to follow the route of a journey through driving a motor car. Such an ability is not, in my view, determinative with respect to the ability to follow the route of a journey but forms a component of an overall assessment of the claimant’s cognitive, mental and sensory abilities in the context of following a route. That approach would seem to be consistent with that taken by the Upper Tribunal in JC v SSWP (PIP) [2019] UKUT 181 (AAC) in which it was said (paragraph 11) that, as part of the overall and holistic assessment required, a claimant’s ability to plan and follow a journey on foot must be considered. Support for that proposition was, it was noted, to be found in MH v SSWP (PIP) [2016] UKUT 531 (AAC); [2018] AACR 12 at paragraphs 37 and 44. So, I would say that what is required is an overall and holistic assessment encompassing a claimant’s ability to follow the route of a journey through various ways, including driving, travelling on foot and utilising public transport, with neither, of themselves, being determinative. On that basis I would have concluded, therefore, had it been necessary for me to formally decide the point, that the tribunal did err in limiting itself to a consideration of the claimant’s ability to follow the route of a journey by driving and going on to determine the matter solely on that basis.
I would also add, for completeness, that the tribunal should also have considered the possibility that even if the claimant is capable of following part of a route by driving, there might be parts of a journey (I have in mind the starting point and the end point) which will necessarily have to be undertaken by foot (see JC once again and also JB v SSWP (PIP) [2019] UKUT 203 (AAC))."
If we are to follow the approach set out in SB, then the Tribunal has erred in failing to consider the claimant’s ability to follow journeys outside of her car and on the days she is not working (i.e. the majority of days). Therefore, it is my submission that the Tribunal has erred on a material point of law in failing to adequately apply regulation 7 to its fact finding.
I should add that the Appellant’s representative has understandably made no further observations by way of reply on the substance of the appeal.
Analysis: a summary
I agree with the analysis of the Secretary of State’s representative in his written submission supporting the appeal to the Upper Tribunal and as summarised above.
I am accordingly satisfied that the First-tier Tribunal erred in law for those reasons. I therefore allow the Appellant’s appeal to the Upper Tribunal and set aside (or cancel) the Tribunal’s decision.
What happens next: the new First-tier Tribunal
There will therefore need to be a fresh hearing of the appeal before a new First-tier Tribunal. Although I am setting aside the previous Tribunal’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to PIP and, if so, which component(s) and at what rate(s). That is a matter for the good judgement of the new Tribunal. That new Tribunal must review all the relevant evidence and make its own findings of fact.
In doing so, however, unfortunately the new Tribunal will have to focus on the claimant’s circumstances as they were as long ago as in July 2023, and not the position as at the date of the new hearing, which will obviously be about three years later. This is because the new Tribunal must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998). The decision by the Secretary of State, which was under appeal to the FTT, was taken on 7 July 2023.
Conclusion
I therefore conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The case must be remitted for re-hearing by a new tribunal subject to the directions set out above (section 12(2)(b)(i)). My decision is also as set out above.
Nicholas Wikeley
Judge of the Upper Tribunal
Authorised by the Judge for issue on 3 March 2026