MF v Secretary of State for Work and Pensions (PIP)

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 27 February 2024.

The Appellant is reminded that the tribunal can only deal with the appeal, including his health and other circumstances, as they were at the date of the original decision by the Secretary of State under appeal (namely 22 March 2022).

If the Appellant has any further written evidence to put before the tribunal and, in particular, further medical evidence, this should be sent to the HMCTS regional tribunal office within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).

The new Tribunal hearing the remitted appeal will be dealing with the closed period from 22 March 2022 to 8 April 2024 (see paragraph 12 below).

The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal (or indeed by the subsequent award). Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

The Appellant’s appeal to the Upper Tribunal succeeds and so there will need to be a completely fresh hearing of the original PIP appeal before a new First-tier Tribunal (FTT).

I allow the Appellant’s appeal to the Upper Tribunal. The decision of the First-tier Tribunal involves a legal error. For that reason, I set aside the Tribunal’s decision.

The Appellant’s case now needs to be reheard by a new and different First-tier Tribunal. I cannot predict what will be the outcome of the re-hearing. So, the new tribunal may reach the same, or a different, decision to that of the previous Tribunal. It all depends on the findings of fact that the new Tribunal makes.

The factual background to this appeal is not in dispute and is helpfully set out in the written submission, in response to the appeal, and prepared by Ms Rauf, the Secretary of State’s representative (see paras 2.1 – 2.7). In short, the FTT on 27 February 2024 confirmed the Secretary of State’s supersession decision of 22 March 2022, disallowing the Appellant’s claim to PIP, the FTT having found that she scored 6 points for daily living and 4 points for mobility activities. There had previously been an award of PIP at the standard rate for both the daily living and mobility components, based on a score of 8 points for each activity.

The Appellant’s grounds of appeal were as detailed on Form UT1. In giving permission to appeal, I made the following observations:

The Secretary of State’s representative in these proceedings supports the appeal and helpfully consents to the FTT’s decision being set aside. In summary, as regards daily living activity 9, Ms Rauf argues that “the FtT have failed to consider if the claimant needs support, specifically given that she needs prompting. As such, the FtT erred in law to use their inquisitorial function to provide additional findings and to adequately explain why the FtT did not follow the guidance set out in SSWP vs MM [2019] UKSC 34” (para.4.4). Ms Rauf also concludes that the FTT failed to make sufficient findings of fact and give adequate reasons in respect of daily living activity 10.

I agree with the more detailed analysis of the Secretary of State’s representative in her written submission on the appeal, as summarised above.

I am satisfied that the First-tier Tribunal erred in law for the reasons set out above. I therefore allow the Appellant’s appeal to the Upper Tribunal, set aside (or cancel) the Tribunal’s decision and remit (or send back) the original appeal for re-hearing to a new tribunal, which must make a fresh decision.

There will therefore need to be a fresh hearing of the appeal before a new First-tier Tribunal. Although I am setting aside the previous Tribunal’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the claimant is entitled to PIP (and, if so, which component(s) and at what rate(s)). That is a matter for the good judgement of the new Tribunal. That new Tribunal must review all the relevant evidence and make its own findings of fact.

In doing so, however, unfortunately the new Tribunal will have to focus on the claimant’s circumstances as they were as long ago as in March 2022, and not the position as at the date of the new hearing, which will obviously be more than three years later. This is because the new Tribunal must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998). The original decision by the Secretary of State, which was appealed to the FTT, was taken on 22 March 2022.

The new Tribunal will also note it is now dealing with the case as covering a closed period. This is because on 9 April 2024 the Appellant made a further and again unsuccessful claim for PIP. The FTT hearing the remitted appeal will therefore be dealing with the closed period from 22 March 2022 (the date the supersession decision under appeal took effect) to 8 April 2024 (the day before the fresh unsuccessful claim for PIP).

I therefore conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The case must be remitted for re-hearing by a new tribunal subject to the directions set out above (section 12(2)(b)(i)). My decision is also as set out above.