MC v The Secretary of State for Work and Pensions

These directions may be supplemented or changed by a District Tribunal Judge (DTJ) giving listing and case management directions.

The case will be listed as an oral hearing in front of a freshly constituted tribunal. The appellant is advised to attend.

The new panel will make its own findings and decision on all relevant descriptors.

In this appeal Ms Cowen of Durham County Council Welfare Rights acts for the appellant. The Secretary of State is represented, but the name is omitted from my copy of the submission. I thank both representatives for their assistance with this appeal. I am grateful in particular to them for the background details to the appeal process, which are set out in this section.

My references to legislation are, unless otherwise stated, to the Social Security (Personal Independence Payment) Regulations 2013.

This decision concerns the PIP Personal Independence Payment (PIP) claim made by the appellant on 18/4/2023. I am told by the Secretary of State that there was no further claim by the date of the submission, 27/10/2025.

The claim was made by telephone; it was followed by a telephone assessment by a Health Professional on 26/7/2023. On 11/8/2023 the decision maker adopted the recommendations of the assessor. These were to award no points for either component of the payment. He requested a Mandatory Reconsideration of the above decision and on 30/9/2023 the DM decided that the decision remained unchanged. The claimant lodged an appeal against the decision to the First-tier Tribunal (FtT) on 28/10/2023.

The appeal was before a tribunal on 3//2025. It heard evidence from the appellant by telephone. The decision of the Department was upheld, and the appeal was refused.

The appellant sought permission to appeal to the Upper Tribunal, having had an initial application to the FtT refused.

The matter came before Upper Tribunal Judge Church. He granted permission to appeal on the basis of the papers.

Judge Church gave unrestricted permission to appeal, but mentioned two issues as specifically arguable;

The Secretary of State’s submission supports the appeal and recommends remission to the FtT. If I accept the arguments made for this, they do not require a reasoned decision.

Ms Cowen is also content with a decision without reasons, given the support of the Secretary of State.

The submissions of both representatives are critical of the tribunal’s Statement of Reasons; indeed, the Secretary of State’s arguments provide strong support for the appeal on the basis of a lack of fact finding and inadequate explanation.

Regrettably, I must agree with them, and subject only to my making some further general points, I adopt the reasons set out by the Secretary of State for my decision that the FtT erred in law in its approach to fact finding, and failed to explain its findings sufficiently.

It is important that I acknowledge that it is adequacy that is expected in a Statement of Reasons, not perfection, and I approach this and every such Statement with that in mind.

An important purpose of the Statement is to explain to the appellant why their appeal failed, and, perhaps in particular, where the tribunal did not accept their account, why that was. Brevity and clarity play a part in ensuring that the Statement can be understood by someone who isn’t a lawyer.

In the Secretary of State’s submission, the author points out that large swathes of the Statement of Reasons simply recite the evidence and state a conclusion, with neither factual findings nor explanation set out.

The main task of the tribunal is to find the facts; my colleague Upper Tribunal Judge Edward Jacobs, in his book Tribunals: Practice and Procedure, describes a fact as being what you get when you apply a process of reasoning to the evidence. So, to do its job properly the tribunal must explain that reasoning. It is what the tribunal made of the evidence, the factual conclusions that it drew from it, that the appellant needs to understand. They know why their account of their difficulties was rejected; this is the “because” element.

Here, the restating of the evidence is largely followed by generic material that could apply in many cases, for example references to the reliance of the tribunal on its own expertise as well as the medical evidence and the expertise of the Departmental Examiner. It does not have the detail to explain why the view was arrived at in this case. On reading the statement I found it hard to understand what it was that made the tribunal reject the appellant’s account that he suffered from low mood, feelings of hopelessness and worthlessness, anhedonia and guilt following the death of his wife, which caused him to struggle with straightforward things. The tribunal places reliance on the appellant’s driving short distances, and undertaking two trips, one to Spain, where I had the impression members of his family may have relocated, but the tribunal seems not to have enquired why he went there, alone or accompanied, or, indeed, precisely when. As the tribunal was examining the period prior to the decision under appeal, and no such enquiry is recorded as having been made, this is more than merely incurious.

I mention in particular this point about an apparent omission in the Statement of Reasons of Ms Cowen’s having asked the tribunal to consider a prospective award under Regulation 33 (1) of the UC etc Regulations. This provides for the possibility of an award of PIP commencing not more than three months after the date on which the decision on the claim is made. It reads:

—(1) Where, although a person does not satisfy the requirements for entitlement to personal independence payment on the date on which the claim is made, the Secretary of State is of the opinion that unless there is a change of circumstances the person will satisfy those requirements for a period beginning on a day (“the relevant day”) not more than 3 months after the date on which the decision on the claim is made, the Secretary of State may award personal independence payment from the relevant day subject to the condition that the person satisfies the requirements for entitlement on the relevant day.

I accept the arguments of both representatives that, having been made, that point required the tribunal to respond with a ruling on it, and that omission is of itself an error of law on the part of the tribunal. That said, it is an unusual submission.

The general rule in s.8(2) of the Social Security Act 1998 is that:

Regulation 33(1) permits the Secretary of State’s Decision Maker to keep the claim period open so that, rather than require a fresh claim, they can start an award not at the date of claim, but within three months of that date, where the evidence shows that a person who does not qualify at the date of claim but is likely to satisfy the initial qualification condition within the three month period, and also likely at that date to satisfy the nine month qualifying period going forward.

This could be where there is a failure at the date of claim to satisfy the requirement that the disabling effects of a condition have existed for three months prior to the claim, and the ongoing condition looks likely to persist for a further nine months thus enabling an award to start within the three month window. That is a broad explanation. If the point is argued at the rehearing, Ms Cowen will no doubt explain the basis of the contention.

I am directing that the case be listed as an oral hearing; I appreciate that the appellant has already give his account to the tribunal, but it will be in his interests to attend, in person if he can, or in any event by telephone or video hearing, explain to the fresh tribunal what his problems were with the activities of daily living, and in getting around, during the period leading up to the original decision on his PIP claim made on 18/14/2023, and beyond if the point in relation to regulation 33 is once again pursued.

He may, through his representative or personally, make any further points that he wishes to on all issues at the rehearing, or on paper prior to that.

For completeness, I also draw to the attention of the new tribunal the approach set out by Upper Tribunal Judge Hemingway in TR-v-SSWP (PIP) [2015] UKUT 0626 (AAC) which establishes that if a claimant is unable to perform an activity for part of a day that day counts towards the required periods provided that the inability to perform it affects them on that day to more than a trivial extent: in particular see [32-34].

Finally, I warn theappellant that the fact this appeal has succeeded here on an issue of law is not an indication that the rehearing will automatically be successful, because it is the new tribunal that will consider the evidence and determine the facts, and look at the descriptor scores with reference to those.