Appeal No. UA-2025-000486-PIP
Between:
NH
Appellant
- v -
The Secretary of State for Work and Pensions
Respondent
Before: Deputy Upper Tribunal Judge Hocking
Decided on consideration of the papers
Representation:
Appellant: Manchester City Council
Respondent:
On appeal from
Tribunal: Social entitlement chamber
Tribunal Case No: 1698679533336737 SC946/23/02341
Tribunal Venue: Manchester
Decision Date: 26 July 2024
DECISION
The decision of the Upper Tribunal is to allow the appeal
DIRECTIONS
This case is remitted to the First-tier Tribunal (“FtT”) for reconsideration at an oral hearing.
It must be heard by an entirely fresh panel.
The FtT must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the FtT’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. While the FtT will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.
The new FtT is not bound by the decision of the previous FtT. Depending on the findings of fact it makes, the new FtT may reach the same or a different conclusion to the previous FtT. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the FtT to which this case is remitted.
These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the FtT.
REASONS FOR DECISION
Decision on the papers
Neither party requests an oral hearing. The parties’ positions are clear and nothing raised by the appeal calls for an oral hearing, which would cause delay. I am satisfied that I can deal with the case fairly on the papers, and that it is in the interests of justice that I do so.
Factual background
The appellant claimed PIP on 12 April 2023. They were assessed by a HCP on 4 July 2923 and on 12 July 2023 were awarded two points for daily living activities (activity nine, engaging with other people face to face) and four points for mobility activities (activity two, moving around). Thus no element of PIP was payable. That decision was unchanged on mandatory reconsideration. On 26 July 2024 that decision was upheld by the FtT. On 20 March 2025 the appellant appealed to the Upper Tribunal and on 16 June 2025 UTJ Butler gave permission to appeal.
Grounds of appeal
Giving permission Judge Butler said this:
A summary of your appeal grounds is:
The First-tier Tribunal (FTT) went wrong in appraising your depressive disorder, in particular through mistakenly recording you only had one counselling session when you had more, overlooking the increase in your Sertraline prescription on 18 August 2023 and disregarding the healthcare professional’s findings that you sounded withdrawn and low in mood with a monotone voice when you were assessed on 4 July 2023;
The FTT wrongly concluded that your use of the walk-in shower with seat and handrails did not count because they were installed for your husband, not you. The FTT should have considered your evidence that you could not access a conventional bath and did not make findings about this (or about the effects of regulation 4(2A) on this activity);
The FTT accepted you experienced a degree of mobility restriction, by leaving undisturbed the award of 2.b (4 points) for mobility activity 2. In those circumstances, it is unclear why you were not awarded descriptor 2.b (2 points) for dressing and undressing given the evidence you needed slip on shoes and the healthcare professional recorded you wore elasticated / loose clothing;
The FTT placed substantial reliance on your employment, which ended after your fall on 14 February 2023. However, the FTT should have considered whether to treat your claim as one for an advance award, allowing it to award you PIP from 14 May 2023 (just over a month after the date of claim on 12 April 2023);
The FTT placed disproportionate weight on your carer responsibilities for your husband, without making the findings needed to establish the type of care provided and the activities involved. It could be inferred from the fact you have four adult daughters at home that you would not bear the sole burden of caring for your husband. The FTT adopted the healthcare professional’s findings about the care given to your husband and only found that you cut up soft food for him and are present when he bathed. The FTT needed to make adequate (i.e., greater) findings about what you did, to support the decision it reached
At paragraph 18 of the Statement of Reasons, the FTT did not fulfil its independent, inquisitorial function by so readily accepting the PA4 assessment report as accurate and unassailable while at the same time disparaging your attempts to qualify it orally as inconsistent and not plausible…
Judge Butler gave permission on those grounds. She went on to say:
using my inquisitorial function, I have identified the FTT may have made an error of law in failing to explain adequately the process it followed of administering a warning that you might lose the points DWP awarded you. This is mentioned, but not explained, at paragraph 28 of the Statement of Reasons (“A warning had been given to the Appellant in advance that she was at risk of any points being taken award”). This appears to be describing an action the FTT took on 26 July 2024, because there are no documents in the bundle indicating your appeal was previously adjourned or had directions made about it.
In the circumstances, the FTT has not explained how it applied the principles of natural justice in administering any warning, for example, whether it adjourned (and if so, for how long) to give you time to consider the implications of going ahead (and if so or what specifically it took into account before administering the warning. What is required and expected to ensure natural justice is set out in MS v SSWP (DLA and PIP) [2021] UKUT 41 (AAC). Although the FTT did not in fact remove the points DWP had awarded you, the failure to explain how it approached the issue of giving a warning, may itself indicate an error of law.
The respondent’s reply
The respondent says:
Ground a
It is noted that during the medical assessment, the appellant reported that she had attended three counselling sessions, which begun 3 weeks prior, with the possibility of up to eight sessions. However, the FtT incorrectly recorded that only one session had taken place. While the SOR at paragraph 15(d) notes that the appellant described the sessions as short and unhelpful, the FtT could have used their inquisitorial function to gather more information about the sessions, and about the appellant’s engagement in the sessions, however this does not negate the fact that multiple sessions had occurred or even where booked.
The FtT also failed to consider the increase in the appellant’s Sertraline prescription. The GP records (page 82 of the FtT bundle) show that the dosage was increased from 50mg to 100mg on 18 August 2023. At the time of the medical assessment on 4 July 2023, the appellant was taking 50mg and reported that the medication was not effective. The FtT did not acknowledge this increase, which could be said is an indicator of a deterioration in the appellants mental health. This absence is particularly relevant given that the decision was made on 12 July 2023, after the assessment but before the dosage increase, and the tribunal had the opportunity to explore this change in the prescribed medication .
Furthermore, the healthcare professional who conducted the assessment on 4.07.2023 recorded that the appellant appeared withdrawn, spoke in a monotone voice, and presented with low mood. It could be said that these are clear clinical indicators of depressive symptoms. The tribunal did not engage with or reference these observations in its reasoning, despite their relevance to the appellant’s mental state and functional capability.
Given that the appellant reported the medication was not effective at the time of assessment, the FtT should have used their inquisitorial function to explore the reasons for the change in dosage.
Ground b
It was accepted during the medical assessment that the appellant uses a walk-in shower equipped with handrails and a seat. While these adaptations were originally installed for her husband (see page 54 of the FtT bundle), the appellant has consistently stated that she herself relies on them due to physical limitations which prevent her from safely accessing a conventional bath.
The appellant has expressed uncertainty about how she would manage with a standard bath, highlighting the severity of her mobility issues. This is supported by the SOR at paragraph 15(h), which confirms that she requires assistance with washing and bathing. Furthermore, paragraph 17(b) of the SOR notes that the appellant was seeking further adaptations to the bathroom for her husband.
The FtT’s inquisitorial role could have explored in more detail the appellant’s use of the walk-in shower and the reasons for its necessity. Even if the installation was initially for her husband, the evidence clearly indicates that the appellant also depends on these adaptations due to her own physical impairments.
The FtT erred in law by simply dismissing the relevance of the adapted shower solely on the basis of its original purpose, without making findings on the appellant’s inability to use a “conventional” bath or considering the implications of regulation 4(2A).
Ground c
In addressing point (c) (repeated above), I respectfully concur that in awarding 4 points for mobility activity 2b, which the FtT did not dispute. It has to be said that it is unclear whether the FtT in accepting the claimed limitation regarding mobility by leaving the points in place, as to whether they considered the claimed limitation with regards to PIP daily living activity 6.
It is noted at page (Page 55 FtT Bundle) hat the claimant stated that she wore slip on shoes additionally the health care professional recorded that the claimant was wearing loose clothing. It could be that the FtT should have used their inquisitorial function to establish why the claimant did require such clothing. Therefore I submit that the FtT need to make further findings of facts to establish if the claimant would come under any other points scoring for daily living activity 6.
Ground d
In addressing point (d) repeated above, one’s ability to work is not a establishing factor to award or disallow PIP. The ability to engage in employment does not preclude entitlement to PIP.
Furthermore, while FtT refers to the appellant’s ability to work at paragraph 21 of the SOR, it appears that insufficient consideration was given to the appellant’s motivation and impetus to work. The FtT seems to have dismissed the appellant’s reasons for stopping employment without adequately examining the limitations that impacted their ability to perform work-related tasks. Additionally, as helpfully noted above, the FtT did have the option of treating the claim as an advanced claim, but do not appear to consider this. This I submit is an error in law.
Ground e
In addressing point (e) repeated above, I respectfully concur that the FtT has placed undue weight on the appellants caring responsibilities for her husband. While entitlement to carers allowance is not a contributing factor, the FtT should have further established the level of care that is being provided by the appellant to her husband, and the level of additional support that is provided by her daughters. I therefore agree with UT Judge Butler in that the FtT should have made additional findings about what the appellant does in the way of care.
Ground f
In paragraph 18 of the SOR, the FtT states that it “found that the HCP report was a contemporaneous account of the appellant’s conditions.” While the FtT is entitled to rely on any evidence it considers appropriate for the case, it must also fulfil its independent and inquisitorial function by assessing all evidence provided by the appellant, especially where inconsistencies are identified.
In this case, the FtT acknowledged certain inconsistencies in the appellant’s account, such as her ability to support her husband up the stairs when going to take a shower. However, it also noted consistent reporting across both the PIP medical assessment and the hearing regarding the appellants inability to stand for long periods and her need for physical assistance with dressing and undressing. These consistencies should have prompted further inquiry rather than the FtT acceptance of the PIP medical assessment report. (FtT bundle Page 54 and SOR paragraph 21).
The tribunal did not appear to question the appellant further on the inconsistencies it identified. This lack of follow up questions suggests a misapplication of its inquisitorial role to seek and asked questions about the functional ability of the appellant. Where inconsistencies arise, the FtT is expected to ask clarifying questions to resolve them.
Additional ground
the overriding objective under the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chambers) Rules 2008 (the Tribunal rules), requires that cases are dealt with fairly and justly, including by seeking flexibility in the proceedings, ensuring that parties can participate fully, and avoiding delay.
Reviewing the SOR in its entirety, it appears that the FtT have simply provided a list of assumptions, which provides no overall detail and appears limited in its conclusions.
In accordance with rule 2(c) of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, the Tribunal have a duty to ensure, so far as practicable, that the parties are able to participate fully in the proceedings. In this case, to allow the appellant to participate fully in the proceedings, the appellant should have been fully informed about any possible outcome of the proceedings, namely that the Tribunal have the power to remove points. In the statement of reasons, the Tribunal have confirmed that the appellant did not receive any such warning in advance of the hearing.
Paragraph 28 of the statement of reasons [UT bundle, page 20 (28)], states:
“ The Tribunal did not interfere with the points that had already been awarded to the Appellant… A warning had not (emphasis added) been given to the Appellant in advance that she was at risk of any points being taken away. In any event, the award of the aforementioned points does not impact on the overall decision in this appeal.”
In following the overriding objective of being fair and just, the Appellant should have been informed of the possible outcome and time should have been provided for the Appellant to consider this.
It has been confirmed in the SOR that no prior warning had been given to the appellant. It appears that no warning was given by the Tribunal before commencement of the hearing and it does not appear that any explanation or adjournment took place to allow the appellant sufficient time to consider their options. If such actions did take place, the Tribunal have failed to address them in the statement of reasons. As such, I respectfully submit that the Tribunal have erred in law on that basis.
Decision
Ground a
Notwithstanding the respondent’s comments I regard this as a mere disagreement on the evidence and not a successful ground of appeal. The error as to the number of counselling sessions is not ideal, but I do not regard is as material. Nor do I regard an increase in dose from 50-100 mg sertraline as so material as to require any specific consideration by the FtT as a matter of law, and likewise the observation in the HCP report. It may have been preferable to have done so but I do not feel that the SoR are so defective as to reveal an illegality.
Ground b
The SoR do not dismiss the adapted shower solely on the basis of its original purpose. They make no reference to that at all. The quote is from the HCP report. Where the SoR are in error is in not having considered whether, given that there are adaption in place in the shower, the appellant needs these. It may be that she can “wash and bathe…unaided” only because the shower is preadapted, which might engage activity 4b at least. . (The fact that it was originally adapted for her husband being irrelevant.)
Ground c
I do not see any inconsistency requiring further explanation or analysis between the findings as to mobility and any of the findings on daily living activities. I do not regard slip on shoes as necessarily relevant to daily living activity six, or as putting the FtT on enquiry that further questions should nave been raised see JM vSSWP [2016] UKUT 542 AAC , nor is loose clothing any more relevant. Many people choose to wear loose clothing for all sorts of reasons and a wide range of suitable clothing exists. Even if it was the case that the appellant could not put on or take off close fitting clothing that would not engage this activity.
Ground d
I agree the possibility of an advance claim should have been considered. The appellant’s abilities while at work are relevant material for the FtT, but I agree that the extent to which those demonstrated abilities had ceased to be relevant because they have been impacted by the fall she experienced required specific and more detailed examination.
Ground e
I do not agree that the FtT placed disproportionate weight on the appellant’s caring responsibilities, which are potentially highly relevant and informative as to her functionality. With some reluctance I do agree that this issue required greater exposition in the SoR, with detailed findings where possible as to what the appellant does. I say I reach that finding reluctantly because the appellant’s case is that she provides no physical care, the FtT found that she was lying (although they put it more delicately) and there is a limit as to how much analysis that can be put around that conclusion. However precisely because the FtT’s position must be that the appellant was lying I would need to feel confident that these matters were put directly to the appellant and her replies considered, and I cannot be sufficiently confident from the SoR.
Ground f
With similar reluctance I accept that the FtT did not sufficiently identify and put inconsistencies to the appellant. In this respect at least I agree the hearing fell short of the standard of fairness required by the overriding objective and cases such as R (Osborn) v Parole Board [2013] UKSC 61; [2014] AC 1115
Additional ground
Although the need to give a warning that the FtT may reach a decision that is less favourable than the decision appealed is clear, MS v SSWP (DLA and PIP) [2021] UKUT 41 (AAC) as the FtT did not in fact reach such a decision this is not a material error of law.
Conclusion
Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I therefore set the FtT decision aside and remit the case to be reconsidered by a freshly constituted panel. Although I have only found certain grounds of appeal made out, the FtT should reconsider the entire case afresh. I stress that this appeal having succeeded carries no implication for whether the FtT will or will not reach a decision that is more favourable to the appellant. That is a matter for it.
Stephen Hocking
Deputy Judge of the Upper Tribunal
Authorised by the Judge for issue on 19 December 2025