RC v Secretary of State for Work and Pensions

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 10 May 2024.

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

In reconsidering the issues raised by the appeal the First-tier Tribunal must not take account of circumstances which were not obtaining at the date of the original decision of the Secretary of State under appeal. Later evidence is admissible provided it relates to the time of the decision.

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

Permission to appeal was granted to the Appellant (the claimant) by Upper Tribunal Judge Smith on 26 February 2025 (issued 27 March 2025). The appeal is supported by the Respondent (the Secretary of State for Work and Pensions). Neither party has requested an oral hearing of the appeal, and I consider that I can properly determine the case on the papers.

The Respondent consents to a decision without reasons, while the Appellant does not. As the appeal is supported and I am remitting the case to be heard afresh by the First-tier Tribunal, it is appropriate to give fairly brief reasons for my decision.

The background to the appeal is concisely summarised in the decision of Upper Tribunal Judge Smith granting permission to appeal:

“2.

The Appellant applied for Personal Independence Payment (“PIP”) on 19 August 2021 and was awarded the standard rate of both the daily living and mobility components from 19 August 2021 until 13 January 2026. On 14 May 2023, the Appellant reported a change in circumstances (a worsening of her conditions) which prompted an award review. On review, in a decision dated 15 August 2023, the Secretary of State for Work and Pensions determined that the Appellant was no longer entitled to an award of either component of PIP. The Appellant appealed to the First-tier Tribunal (“FtT”).

3.

The FtT sitting in Wolverhampton on 10 May 2024 dismissed the appeal, and confirmed the decision of the Secretary of State that the Appellant was not entitled to an award of PIP. However, the FtT reinstated four points for the Daily Living Component (requires an aid to prepare and cook a meal, and requires an aid to wash/bathe) and four points for the Mobility Component (can stand then move between 50m and 200m either aided or unaided). This award of points was insufficient to reach the threshold required for eligibility.”

Judge Smith determined that three of the grounds advanced by the Appellant’s representative in the application for permission to appeal were arguable. These related to daily living activities 5 (managing toilet needs or incontinence), 6 (dressing and undressing) and 9 (engaging with other people face to face). Judge Smith also found that the First-tier Tribunal had arguably erred in three further respects, in relation to daily living activities 1 (preparing and cooking a meal) and 4 (washing and bathing) and mobility descriptor 1 (planning and following journeys).

JudgeSmith noted that the First-tier Tribunal’s statement of reasons, at paragraph 16, recorded the tribunal’s acceptance that the Appellant had some restriction with her mobility and swelling in her lower legs due to lymphoedema. That restriction was referred to by the First-tier Tribunal, in general terms, as the basis for the points it awarded in relation to preparing food, washing and bathing, and moving around. Judge Smith observed:

“9.

However, the FtT does not appear to have clearly set out what precise restrictions the Appellant experienced with her mobility, or what restrictions she experienced as a result of the swelling in her lower legs. Consequently, it is arguable that the FtT materially erred in law by failing to make sufficient findings of fact to explain its award of points (or lack of points) for the activities of preparing a meal, washing and bathing, managing toilet needs and dressing/undressing. There also appear to be conflicts in its reasoning.

10.

As an example, the FtT reinstated points to reflect the Appellant’s requirement of an aid (perching stool) to prepare and cook a meal (descriptor 1). These were the points that had previously been awarded by the Secretary of State “due to lower back and lower limb pain” (see paragraph 21 of the [statement of reasons, “SOR”]). However, the FtT declined to reinstate the two points previously awarded by the Secretary of State for managing toilet needs (descriptor 5) for difficulty “sitting and standing from the toilet due to lower back and lower limb pain” (paragraph 30 of the SOR) as it found that the “medical evidence did not support a restriction to the Appellant’s lower limbs” (paragraph 31 of the SOR). The FtT made this determination apparently contrary to its finding of swelling in the lower legs requiring a stocking (paragraph 16 of the SOR) which it found to cause restrictions and which is potentially, although not specifically stated, the reason for the FtT having reinstated the points for requiring a perching stool to prepare and cook a meal. Consequently, it is arguable that the points awarded, or not awarded, for the activities of cooking a meal (descriptor 1) and managing toilet needs (descriptor 5) do not appear to align. Beyond this conflict in conclusions, it is arguable that the FtT did not make adequate findings of fact regarding the Appellant’s use of aids, the nature and frequency of the Appellant’s claimed bowel/bladder “accidents”, or even if it accepted the Appellant’s reports of accidents, in respect of descriptor 5 (managing toilet needs).”

The Respondent’s representative concurs with Judge Smith’s observations, and submits that the First-tier Tribunal erred by failing to make sufficient findings of fact to support its conclusion that the Appellant did not qualify for any points in relation to daily living activity 5. She notes at paragraph 4.10 of her submission that the First-tier Tribunal, in reaching its conclusion on activity 5:

“has not stated what it made of the claimant’s evidence recorded in the AR1UI form dated 20/06/2023 where she reports the following at p.119 “…sometimes I have accidents – soiled clothes, floor...I buy pads as now I have diverticulitis…because of IBS and diverticulitis may have accidents…” The FtT in reaching their conclusions do not appear to have made any findings as to whether the claimant could be awarded points for the use of pads to manage any accidents she [may] have due to her IBS or diverticulitis as per the guidance provided in the UT decision SSWP v NH (PIP) [2017] UKUT 258 (AAC).”

I agree that the First-tier Tribunal erred in law in the respects identified above in its consideration of daily living activity 5.

In relation to daily living activity 6, Judge Smith observed in her decision granting permission to appeal:

“11.

The FtT based its determination that the Appellant is able to dress/undress independently (descriptor 6), on her ability to change into swimwear, put on rubber socks and to change back into clothes independently after a therapeutic swim (see paragraph 35 of the SOR). However, it is arguable that in the absence of findings of fact relating to the nature and frequency of the therapeutic swim sessions, the time in which it takes to dress/undress or indeed any other instances of being able to dress/undress, the FtT materially erred in law in its conclusion in respect of descriptor 6.”

The Respondent also supports the appeal on this ground, and submits that “the FtT has materially erred in law, as they have provided insufficient findings to support and explain their decision why the claimant did not satisfy any of the point scoring descriptors with daily living activity 6, and as such further findings are required”. She further submits:

“4.13

Moreover, the FtT in reaching their conclusions with regards daily living activity 6 has not commented upon or engaged with the claimant’s evidence recorded in the AR1UI form [p120], where she reports that she is experiencing leg and back pain when dressing and undressing and that due to this it is taking her:

“…a lot longer to get dressed or undressed - 30-40 minutes each time – makes me very tired and in pain - sometimes severe pain.

Ensure I have elasticated waist – slip on shoes – exhausted after doing it and severe pain and sometimes take pain relief. Equipment to put on socks. Shoe horn. Pain 4-5 times a week when dressing.”

4.14

In view of this evidence (repeated above) is it unclear whether (or not) the FtT in reaching their conclusions had regard to the claimant’s use of aids to put on and take off her socks and shoes and the pain she experiences when dressing and undressing or if they have considered the provisions detailed within regulation 4(2A) of the [Social Security (Personal Independence Payment) Regulations 2013] [which provides that a claimant is only to be assessed as able to carry out an activity if they can do so safely, to an acceptable standard, repeatedly, and within a reasonable time period].”

I also agree that the First-tier Tribunal erred in law in the respects identified above in its consideration of daily living activity 6.

It is not necessary for me to consider whether the First-tier Tribunal’s decision involved any further errors of law. The errors in respect of daily living activities 5 and 6 were material, because even the lowest point scoring descriptors in relation to those activities would together have given the Appellant the additional four points she needed to entitle her to an award of PIP. I am therefore setting the First-tier Tribunal decision aside.

I have concluded that it would not be appropriate for me remake the decision, as facts need to be found and the First-tier Tribunal, as an expert fact-finding body with the benefit of specialist members, is in a better position to undertake that task. The appeal is therefore remitted to the First-tier Tribunal.

It should be noted that the fact that this appeal to the Upper Tribunal has succeeded says nothing about the outcome of the First-tier Tribunal rehearing of the Appellant’s appeal against the Respondent’s decision of 15 August 2023. The new First-tier Tribunal may reach the same or a different conclusion to the previous tribunal, and could make a decision which is less favourable to the Appellant than the First-tier Tribunal’s decision of 10 May 2024.