CW v Secretary of State for Work and Pensions

I am satisfied on the arguments before me that that the First-Tier Tribunal (“FTT”) erred in law in the decision to which it came on 22 October 2024 and that its decision should be set aside as a result.

The FTT made two material errors of law.

The first error of law is the failure of the FTT to explain why the help which it accepted the appellant needed to get out of bed (see the first bullet point in paragraph 5 of the reasons) in order to be able to visit the toilet at night (which the FTT also accepted, see the final bullet point in para. 5), did not amount to prolonged or repeated attention at night. The difficulty with the appellant’s formulation of the first ground of appeal is that it focuses the FTT’s approach to his need for help when toileting. However, the evidence as to that aspect of toileting at night was about the appellant’s wife watching over him during those times rather than giving the appellant attention while he was on the toilet (see page 27 of the FTT bundle). But where the FTT’s reasoning and fact-finding was lacking was in its failure to take into account the prior step of the appellant needs for help to get out of bed three times a night in order to get to the toilet. If that help was reasonably required, it arguably may have satisfied the test in section 64(3)(a) of the Social Security Contributions and Benefits Act 1992 (“the SSCBA”) of the appellant requiring repeated attention during the night in connection with his bodily functions.

In this respect I comment that the FTT may have misapplied the statutory tests in section 64(3) of the SSCBA in paragraph 10 of its reasons. The ‘watching over’ test in section 64(3)(b) is not measured in terms of it needing to be “repeated”, as the FTT state, but whether it is for needed for a prolonged period or at frequent intervals. It may also be the case that the FTT wrongly took the ‘watching over’ into account under section 64(3)(a) given its view that the appellant was not a substantial danger to himself (and as such would not come within section 64(3)(b) in the first place). However, as the appeal is being allowed on other grounds, I need not consider this further.

The second error of law is the failure of the FTT to explain either (i) why the appellant’s need for help to get out of a chair during the day did not amount to a need for attention in connection with his bodily functions, or (ii) if it did amount to ‘attention’, why it was confined, per paragraph 9 of the FTT’s reasons, “to a small time period early in the day”. The need to get out of chair (e.g., to go to the toilet) would not obviously be confined to such a defined period of the day.

In refusing permission to appeal the judge, who was also part of the panel who decided the appeal, did so in part on the basis that the FTT in its reasons only referenced the facts which it found to be true facts. I am unclear whether this is an attempt to add to the FTT’s reasoning, for example by indicating that the FTT did not accept that the appellant needed help (i.e., attention) to get out of a chair during the day, or what the lawful basis would be for supplementing the reasons in this way: see generally on the last point JS v Secretary of State for Work and Pensions (DLA) [2013] UKUT 100 (AAC); [2013] AACR 30. However, I do not need to consider this issue any further either as the refusal of permission to appeal did not purport to be amending the FTT’s reasons, and those reasons must therefore considered on their own.

The Secretary of State supports the appeal being allowed on the grounds on which I have allowed this appeal in a helpful submission to the Upper Tribunal dated 30 June 2025. The material parts of that submission, with which I agree, read as follows:

“4.2

It is my submission that the FtT has erred in law, in both their fact finding and duty to provide adequate reasons for their decision. The conclusions from the FtT on how they assessed the claimant’s functional abilities and attention needs both during the day and at night appears limited in their reasoning. It seems that what the FtT has provided within the statement of reasons (SOR) [Addition F pp.1-3] regarding the claimant’s attention needs, appears to be no more than a rehearsal of evidence and conclusions without an adequate explanation.

4.3

The claimant suffers from a number of health conditions, which includes a longstanding history of chronic obstructive pulmonary disease (COPD) and ischemic heart disease (IHD). The claimant reports that his COPD has become progressively worse over the past 6 years and that on exertion he experiences breathlessness, coughing spasms and difficulty removing phlegm on his lungs. He is prescribed a Salbutamol inhaler 2 puffs 4 times a day and as needed and a Sprivia inhaler to be used once a day.

4.4

The claimant also reports suffering from breathlessness due to his IHD, he had a heart attack in 2010 and underwent a surgical procedure to inset stents; he is prescribed a GTN spray to relive symptoms he experiences and takes aspirin daily. As a consequence of the symptoms relating to his COPD and IHD, it is submitted by the claimant and his representative in the AA1 claim form and the written submissions to the FtT that he requires attention with a number of bodily functions including help getting out of bed during the night to visit the toilet and to get in and out of a chair [pp.9, 19-20, 27, and Addition B pp.1-2].

4.5

The FtT upon considering the evidence before them found that the claimant was not entitled to AA from 18/03/2024, as he did not meet the statutory criteria for an award to be made and provided the following reasons for their decision at paragraphs 9 and 10 of the SOR, which state following:

“9.

The Tribunal was unable to take evidence from the Appellant as he chose a paper hearing. The evidence in the bundle suggested in relation to his day needs, that whilst he had some help it did not amount to frequent attention throughout the day. It was confined to a small time period early in the day. After this he was largely managing, and his walking did not reasonably require attention. There was no suggestion that he was a substantial danger to himself or others.

10.

Turning to the night needs, his main issue was changing position in bed, which he was able to do, albeit he was breathless. The watching over by his wife was not happening sufficiently often to amount to being either prolonged or repeated. There was no suggestion that he was a substantial danger to himself or others.

In these circumstances the Tribunal did not award AA and the appeal was dismissed. The decision made on the 25 March 2024 was upheld”

4.6

Upon reading of the SOR the FtT findings appear narrow, and it is unclear how the FtT reached their conclusions (repeated above) regarding the claimant’s reported attention needs in connection with his bodily functions to get out of bed during night to visit the toilet and to get in and out of a chair. Particularly, as in reaching their conclusions the FtT found as fact that the claimant “…has physical health problems which reduce his functioning in certain aspects of his average day” [paragraph 4 of the SOR]. Moreover, the FtT found that the claimant requires help getting out of bed and also appear to accept that “…he visits the toilet during the night on average 3 times a night [paragraph 5 of the SOR]. Additionally, it is notable that the FtT have not made any findings within the SOR concerning the claimant’s difficulties with getting in and out of chair due to breathlessness caused by his COPD and IHD.

4.7

Turning to the first ground of appeal, I would concur with UT Judge Wright’s observations detailed within points 2-4 of the PTA with regards to the claimant’s night time attention needs, in so far as the FtT in their SOR fail to adequately address the claimant’s assertions that he requires help getting out of bed 3-4 times a night due his breathlessness, in order visit the toilet [p.27]. The FtT simply note the following at paragraph 10 of the SOR regarding the claimant’s night time attention needs, concluding that his:

“…main issue was changing position in bed, which he was able to do, albeit he was breathless.The watching over by his wife was not happening sufficiently often to amount to being either prolonged or repeated.”

4.8

The FtT appear to acknowledge the claimant’s difficulties with getting out of bed during the night and the frequency at paragraph 5 of the SOR (repeated above). However, the FtT when reaching their conclusions regarding the claimant’s nighttime attention needs do not then go on to consider whether the frequency and the amount of time the claimant requires help to get out of bed during the night would amount to prolonged or frequent attention in connection with his bodily functions, as per the provisions detailed within section [64(3)(a)] of the Social Security Contributions and Benefits Act 1992. I therefore respectfully submit that the FtT has erred in law, as they have made inadequate findings of facts and reasons within the SOR to support and explain their decision that the claimant in their opinion did not satisfy the criteria within section [64(3)(a)] for his nighttime attention needs. As such further findings of facts and reasons are required regarding the claimant’s nighttime attention needs.

4.9

Additionally, I would concur with UT Judge Wright’s observations at point 5 of the PTA in so far as the FtT may have misdirected themselves with regards to the provisions detailed within section [64(3)] of the Social Security Contributions and Benefits Act 1992. I would note that “watching over” in section [64(3)(b)] is not measured in terms of whether the “watching over” is “repeated” as the FtT state in paragraph 10 of the SOR, but rather whether it is required for prolonged period or at frequent intervals. In addition, I would agree with the UT Judge that the FtT may have wrongly taken the “watching over” criteria into account under section [64(3)(a)] given the FtT’s opinion that the claimant was not a “…substantial danger to himself or others” and as such would not come within scope of section [64(3)(b)] in the first place.

4.10

Moving to the second ground of appeal regarding the claimant’s daytime attention needs detailed at point 6 of the PTA. The claimant reports in the AA1 claim form at pp.19-20 that he has difficulty getting in and out of a chair and that his:

“…main problem is breathlessness and coughing spasms on exertion. The coughing spasms tend to make my airways feel even tighter. The breathlessness is due to a combination of my heart problems and progression of my COPD. I do what I can, but it takes me a lot longer.

4.11

The representative in their written submissions to the FtT [Addition B pp.1-2] report that the claimant requires help to get in and out of a chair and that the claimant “…emphasises that he is breathless with exertion and that everything takes him longer to manage.”

4.12

It is noteworthy that upon reading of the SOR the FtT did not directly address or make any findings regarding the claimant‘s difficulties with getting in and out of a chair. The FtT simply conclude at paragraph 9 of the SOR (repeated above) that although the claimant did have help during the day with his bodily functions this:

“…did not amount to frequent attention throughout the day. It was confined to a small time period early in the day. After this he was largely managing…”

4.13

Given that the FtT have accepted that the claimant is receiving some attention during the day with his bodily functions, did this include help with getting in and out of a chair? If this is the case then it is unclear upon reading the SOR why the FtT concluded that the attention the claimant is receiving is confined to “…a small time period early in the day.” Particularly, as the claimant and his representative have not indicated this was the case in their evidence within the appeal bundle.

4.14

I therefore courteously submit that the FtT has erred in law, as they have provided inadequate findings of facts and reasons within the SOR to support and explain how they concluded that the claimant’s daytime attention needs in connection with his bodily functions (including getting in and out of chair) were only required for a “…a small time period early in the day” rather than frequently throughout the day. As such further findings of fact are required to establish what attention needs the claimant has, whether such attention is reasonably required, and the frequency of that attention throughout the day, in order to determine whether the claimant’s attention needs are frequently required throughout the day, thereby satisfying the provisions of section [64(2)(a)] of the Social Security Contributions and Benefits Act 1992.

4.15

Moving on to the third ground of appeal detailed at point 7 of the PTA, although the FtT do not have to individually address every piece of evidence they have considered when making their decision, it is necessary that they address issues important to the appeal. The clamant applied for permission to appeal to the UT on the grounds that the FtT failed to adequately address his reported night time attention needs and the help he needs to get in and out of a chair.

4.16

In response the District Tribunal Judge in their decision notice dated 26/03/2025 [Addition H p.1] states that they were “…satisfied that the findings of fact made by the Tribunal were adequate and rational. Simply because something is stated in the evidence provided it does not make it so by right.” Adding, that just because the FtT has not referenced the fact does not mean it was not considered and that the FtT referenced the facts which they found to be true facts based upon the totality of the evidence before them.

4.17

However, the FtT should have made their findings of fact detailed within in the SOR clear, it amounts to an error of law not to do so. In R(A) 1/72 the Chief Commissioner states that:

“The obligation to give reasons for the decision in [a case involving a conflict of evidence] imports a requirement to do more than only state the conclusion…It affords no guide to the selective process by which the evidence has been accepted, rejected, weighed or considered, or the reasons for any of these things. It is not, of course, obligatory thus to deal with every piece of evidence or to over elaborate, but in an administrative quasi-judicial decision the minimum requirement must at least be that the claimant, looking at the decision should be able to discern on the face of it the reasons why the evidence has failed to satisfy the authority.”

4.18

Applying this case law (repeated above), the FtT were required to provide clear reasoning that adequately addresses the claimant’s arguments and that they had considered the evidence that was not referred to in the SOR. In this case, this does not appear have happened, the FtT appear to attempt to provide context to their SOR once the claimant has applied for permission to appeal to the UT. It is unclear why the District Tribunal Judge felt they needed to add additional information and clarity to the SOR when refusing to grant permission to appeal, there was no lawful basis for them to do so, it appears to be an attempt add additional information in reference to the SOR.

4.19

Although, the FtT is entitled to give weighting to whatever evidence they choose, where there is conflicting evidence, they must in the first instance explore and consider it in a holistic manner and provide sufficient reasons explaining why they preferred the evidence that they had. In this appeal the FtT does not appear to have done that. There seems to be a distinct lack of reference to the evidence provided by the claimant regarding his reported attention needs both during the day and at night in order to attend to his bodily functions. Therefore, it could be said that had the FtT given appropriate consideration to all the evidence, including accurately identifying the effects of the claimant’s health conditions, the FtT may have considered the claimant’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 the claimant AA.

4.20

In view of the above, Irespectfully submit that the inadequacy of reasons makes it difficult for the claimant to know whether the FtT applied the correct legal tests in assessing the evidence, making their findings of fact, and arriving at their decision. I courteously submit that the errors of law I have detailed within my submission are material ones and if the UT Judge accepts my submission that the FtT have erred in law, I invite him to set aside the FtT’s decision and remit the appeal to be re-heard by a differently constituted FtT.

4.2

For completeness the UT Judge will wish to know that the claimant has not made any further claims to AA since the appeal hearing held on 22/10/2024.”

For the reasons set out above, the appeal succeeds. The Upper Tribunal is not able to re-decide the first instance appeal. The appeal will therefore have to be re-decided afresh by a completely differently constituted FTT, after an oral hearing.

The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether his appeal will succeed on the facts before the new FTT, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.