MK v The Secretary of State for Work and Pensions (PIP)

The claimant made a claim to Personal Independence Payment (“PIP”) on 4 April 2023. On 8 August 2023 the Secretary of State decided that the claimant scored no points in respect of the activities set out in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (the “PIP Regulations”) and was therefore not entitled to any award of PIP (the “SoS Decision”).

The claimant was unhappy with this outcome and requested a mandatory reconsideration. The SoS Decision was confirmed on mandatory reconsideration and the claimant appealed to the First-tier Tribunal. On 16 July 2024 a three-member panel of the First-tier Tribunal convened at Liverpool to hear the claimant’s appeal (the “Tribunal”). The hearing took place by way of a remote telephone hearing. The Tribunal heard argument and evidence but ultimately dismissed the appeal and confirmed the SoS Decision, albeit that it awarded you2 points for needing an aid to manage your toilet needs (the “FtT Decision”).

The claimant sought permission to appeal the FtT Decision, but permission was refused by a District Tribunal Judge of the First-tier Tribunal.

The claimant then applied to the Upper Tribunal for permission to appeal and the matter came before me. The claimant’s case essentially repeated what she had argued at the hearing before the Tribunal.

I exercised my inquisitorial jurisdiction to scrutinise the FrT Decision for myself to see if I could identify any arguable error of law.

In my grant of permission (which was addressed to the claimant) I said:

“6.

Much of what you say in your application for permission to appeal amounts to a disagreement with the way that the Tribunal assessed the evidence and the findings of fact it made based on the evidence. The Tribunal didn’t have to accept everything that you said at face value, just as it didn’t need to accept the evidence put forward by the Secretary of State. Rather, it had to assess the evidence critically. Where there was a conflict of evidence it had to resolve that conflict by deciding, in the light of the evidence as a whole, which piece of evidence was likely to be more reliable. The Upper Tribunal is generally very reluctant to interfere with the First-tier Tribunal’s role assessing evidence and finding facts, and does so only where it has erred in law in carrying out that role.

7.

However, having read the Tribunal’s statement of reasons as a whole I am concerned that the Tribunal may have placed disproportionate weight on its finding that you had not received a diagnosis of fibromyalgia from a rheumatologist. It was entitled to make that finding based on the evidence before it, but the fact that it refers six times in its 6 page statement of reasons to that finding (see paragraphs 15, 19, 25, 27, 29 and 35 of the statement of reasons) indicates that the Tribunal may have given this finding disproportionate weight. The PIP Regulations do not include any specific requirement for a particular diagnosis, let alone a requirement that a diagnosis has to have been made by a specialist. Rather, they focus on the practical difficulties that a claimant experiences carrying out their daily living activities or mobilising. I consider it arguable with a realistic prospect of success that the Tribunal’s emphasis on the lack of a particular diagnosis from a specialist may indicate that it applied the wrong test in assessing your eligibility for PIP. This justifies a grant of permission to appeal to the Upper Tribunal.”

I made Case Management Directions for the parties to make submissions on the appeal and to indicate whether they requested an oral hearing.

The Secretary of State’s representative did not support the appeal. He agreed that there was no need for any condition to be formally diagnosed for the claimed impacts associated with the claimed condition to be factored into the analysis of whether points should be awarded under the descriptors in Schedule 1 to the PIP Regulations. He acknowledged that a tribunal that decided not to award points for claimed functional limitations based solely on the lack of such a diagnosis would fall into error of law. However, he said that it was also the case that the lack of a diagnosis was capable of being relevant evidence that may form part of an explanation, alongside other findings and reasoning, as to why the tribunal decided on the balance of probability that the relevant point-scoring descriptors were not satisfied.

He invited me to conclude that the Tribunal did not fall into error in law and to dismiss the appeal.

The Appellant had no further comment to make on the appeal.

Neither party asked for an oral hearing of the substantive appeal and I decided that none was necessary.

I agree with Mr Whitaker that the absence of a diagnosis may be relevant evidence that may form part of an explanation of a tribunal’s decision not to award points. What I must now decide is whether the significance that the Tribunal placed on its finding that the claimant had received no diagnosis of Fibromyalgia from a rheumatologist was disproportionate in all the circumstances, as I said in my grant of permission that it might have been.

At the permission stage the test for whether to grant permission was that I had to be persuaded that there was a ground of appeal that was arguable with a realistic (as opposed to fanciful) prospect of success. That is a relatively low bar. At this, the substantive stage, to justify allowing the appeal I must be satisfied that the Tribunal did err in law and that its error was material.

In its explanation of its decision making on the activity of washing and bathing, as well as its finding that the claimant had not received a diagnosis of Fibromyalgia, it relied upon its findings that:

Further, in relation to the activity of dressing and undressing, as well as its finding as to the lack of a diagnosis, the Tribunal relied upon its findings that:

In relation to mobility activity 1 (planning and following a journey), as well as the lack of a Fibromyalgia diagnosis, the Tribunal relied upon its finding that the claimant was able to drive and to use a satellite navigation system and on the lack of evidence to indicate that the claimant would experience overwhelming psychological distress should she attempt a journey or that she would be able to undertake a journey only if accompanied.

In all the circumstances I am persuaded that, when read as a whole, the Tribunal’s statement of reasons makes it adequately clear that the Tribunal based its decision not to award any points for the difficulties that the claimant claimed to experience not only on the fact that she had not received a diagnosis of Fibromyalgia, but also on several other factors, and its reliance on the absence of a diagnosis of Fibromyalgia was not disproportionate.

For these reasons, I conclude that the FtT Decision involved no material error of law and therefore dismiss the appeal.