IN THE UPPER TRIBUNAL Appeal No. UA-2024-001558-PIP
(ADMINISTRATIVE APPEALS CHAMBER)
On Appeal from the First-tier Tribunal (Social Entitlement Chamber) SC142/23/00648
BETWEEN
Appellant SAB
and
Respondent THE SECRETARY OF STATE FOR WORK AND PENSIONS
BEFORE UPPER TRIBUNAL JUDGE WEST
Decided on consideration of the papers: 15 April 2025
DECISION
The decision of the First-tier Tribunal sitting at Norwich dated 7 March 2024 under file reference SC142/23/00648 involves an error on a point of law. The appeal against that decision is allowed and the decision of the Tribunal is set aside.
The matter is remitted to a differently constituted tribunal for a complete rehearing.
The new tribunal must considerand make relevant findings as to whether or not the claimant satisfied the criteria to be awarded the daily living component and/or the mobility component of personal independence payment from and including 12 August 2022. In so doing the new tribunal should in particular have regard to the claimant’s grounds of appeal dated 17 September 2024 and her submissions dated 27 February 2025 and the submissions of the Secretary of State dated 22 January 2025.
This decision is made under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.
REASONS
This is an appeal, with my permission, against the decision of the First-tier Tribunal sitting at Norwich on 7 March 2024.
I shall refer to the appellant hereafter as “the claimant”. The respondent is the Secretary of State for Work and Pensions. I shall refer to her hereafter as “the Secretary of State”. I shall refer to the tribunal which sat on 7 March 2024 as “the Tribunal” and the tribunal to which I am remitting the matter as “the new tribunal”.
The claimant appealed against the decision of 28 November 2022 that she was entitled to 4 points for the daily living component and 0 points for the mobility component of personal independence payment. She was not therefore entitled to either component of personal independence payment from and including 12 August 2022. The decision was subsequently reconsidered, but not revised, on 7 February 2023.
The matter came before the Tribunal on 7 March 2024 when the appellant appeared with her representative and gave oral evidence. No presenting officer was present. The appeal was refused.
The Tribunal found that the appellant was entitled to 6 points for the daily living component and 0 points for the mobility component of personal independence payment. She was not therefore entitled to either component of personal independence payment from and including 12 August 2022.
On 29 November 2024 I acceded to the claimant’s application and granted her permission to appeal. It seemed to me that there was an arguable case that the Tribunal erred in law in relation to daily living activity 1 for the reasons set out in her grounds of appeal. I did not, however, grant permission to appeal in relation to the other grounds of appeal, which seemed to me to be attempts to relitigate the factual findings of the Tribunal.
On 22 January 2025 the Secretary of State provided submissions and supported the appeal. The claimant replied briefly on 27 February 2025.
The Secretary of State confirmed that the claimant had not made any further claim for personal independence payment after the hearing on 7 March 2024.
Neither party has sought an oral hearing and I do not consider that it is necessary to hold one in order to resolve the matter. Both parties have also consented to a decision without reasons under rule 40(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
The Secretary of State submitted that
“4.2 The Tribunal concluded that the claimant could prepare and cook a simple meal unaided, providing the following reasons for its decision:
“38. The appellant claimed difficulty with cooking a simple meal for one.
The Tribunal had to consider the notional test of cooking a simple meal for one, using fresh ingredients, at a conventional cooker.
The appellant said that she was able to stand in the kitchen for 5 minutes only. The Tribunal was unclear why she would not be able to stand for longer than 5 minutes as it was assessed her lower limb ability to be good with good strength and power. This was based on what she herself said about her ability to mobilise and the activities she described when she was on her feet and particularly because she was not experiencing complications associated with her diabetes which might affect her feet. She said that if she had to chop ingredients she tended to sit as that was easier but the Tribunal was satisfied that she was able to stand and do that. She said she was able to use her hands to peel and chop ingredients.
She also referred to not feeling motivated to cook, which she said occurred daily. She explained that the friend’s daughter, [G], was staying with her and she would ask what the appellant was cooking and she would also help out at home.
The Tribunal asked the appellant what she was cooking in the week. She explained that she tended to have ready meals. She said she was only cooking from fresh ingredients once a week which might be roast dinner which she would put in the slow cooker. She or [G] would do the vegetables. That was the same now as it was in November 2022.
The Tribunal was satisfied that whilst the appellant might not be cooking daily the Tribunal did not accept that it was a lack of motivation that affected that cooking ability at the date of decision. This is because her mental health was assessed and was found to be at a good level. She described being well motivated to perform a large number of activities which she was performing without being supervised or prompted and it was not accepted that her mood would impact on her ability to cook repeatedly.
The Tribunal was satisfied that the appellant had both the physical and mental ability to cook safely and repeatedly and for more than 50% of the days, without aids and without prompting.”
At paragraph 5 of the Statement of Reasons (SoR) the Tribunal recorded the claimant’s reported difficulties from her PIP2 questionnaire, noting she stated to suffer from depression, anxiety, insulin dependent type 2 diabetes, incontinence, memory and concentration problems, plantar fasciitis, cardiovascular problems, migraines, an abdominal problem, and trapped nerve at C5/C6.
In its findings on the claimant’s mental health, recorded at paragraph 24 of the SoR, the Tribunal noted the claimant experiences 2-3 bad days per week with her mental health, whilst accepting that both her mood and function were also variable. There is no doubt from this paragraph that the Tribunal completely accepted the claimant’s mental health to be variable in terms of its impact. While the claimant may experience 2-3 bad days per week, it does not necessarily mean she experiences 4-5 good days per week due to the variability of her mental health. Therefore, it was incumbent on the Tribunal to have exercised its inquisitorial duty to further fact find and establish more precisely how the claimant was impacted on the majority of days with respect to her functional ability to prepare food, and how many days were actually considered to be good days by her. There has been no exploration as to the extent the claimant is impacted, for example, is her depression resulting in low motivation to prepare food only on those bad day?
There is additionally the matter that the Tribunal equated the claimant being sufficiently motivated to carry out other activities as a reason for concluding that she is motivated to prepare food. Taking such an approach could lead one to overlook the precise reasons as to why the claimant is not motivated to prepare food. It could very well be the case that while her depression leads to low motivation generally, the combination of her reported physical restrictions could exacerbate the low motivation. It is my submission that the Tribunal should have explored this further with the claimant at the hearing.
Additionally, I note the contents of the claimant’s workplace occupational health report which records “at present her functional capability is at best 50% of normal daily activities” and that “it is not clear whether there might be expected to be some level of improvement in her mental health” [Tribunal bundle Addition C, page 24]. The Tribunal does not appear to take this evidence into consideration when considering the variability and impact of the claimant’s mental health difficulties.
Had the Tribunal made further findings on the claimant’s depression to determine the precise nature of good to bad days, and the level of functional impact there was on those days to prepare food it may very well have found her to need prompting on the majority of days and thus awarded 2 points for daily living descriptor 1b. Therefore, it is my submission that the Tribunal has erred on a material point of law. I respectfully request the appeal be remitted and determined afresh by a new tribunal.”
For the reasons identified by the Secretary of State, I am satisfied that there was the Tribunal made errors of law which were material to the decision and for that reason the decision of the Tribunal should be set aside.
In the circumstances I do not need to consider whether the Tribunal made any other errors of law.
I am satisfied that the resolution of any other grounds of appeal will fall to be subsumed at the hearing before the new tribunal.
I therefore allow the appeal and set aside the decision of the Tribunal. I remit the matter to a new tribunal which should conduct a complete rehearing of the matter. The claimant invited me to remake the decision and award 2 points in her favour in respect of daily living activity 1, but I am satisfied that the correct course of action is to remit the matter for rehearing before a new tribunal which will hear the claimant give oral evidence which it can evaluate for itself.
I must stress that the fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication as to the outcome of the rehearing by the new tribunal. It is quite possible that the new tribunal may end up effectively coming to the same decision as the previous Tribunal, namely that the claimant was not entitled to either component of personal independence payment from and including 12 August 2022.
Alternatively, it is possible that the new tribunal might take a different view of the facts from that of the Tribunal and reach the conclusion that in fact the claimant was entitled to one or other or both components of personal independence payment from and including 12 August 2022.
It is for the new tribunal itself to decide which of these alternative options open to it applies, depending on the view it takes of the facts and providing it makes proper findings of fact and gives adequate reasons. It would not be appropriate for me to express any opinion either way on the merits of the appeal.
The following directions apply to the hearing before the new tribunal:
The new tribunal should not involve any member who was a member of the Tribunal involved in the hearing of the appeal.
The new tribunal must considerand make relevant findings as to whether or not the claimant satisfied the criteria to be awarded the daily living component and/or the mobility component of personal independence payment from and including 12 August 2022. In so doing the new tribunal should, in particular, have regard to the claimant’s grounds of appeal dated 17 September 2024 and her submissions dated 27 February 2025 and the submissions of the Secretary of State dated 22 January 2025.
Mark West
Judge of the Upper Tribunal
Signed on the original on 15 April 2025