SH v The Secretary of State for Work and Pensions

SH claimed personal independence payment (“PIP”) on 09 March 2018. She was awarded the standard rate both components from 01 August 2018 to 30 May 2020. DWP started reviewing SH’s PIP award in 2020 and she underwent a telephone consultation with a healthcare professional on 10 June 2020 as part of that review.

Having received advice from the healthcare professional, on 15 July 2020, DWP decided SH should score 2 points for daily living activities and 10 points for mobility activities. The threshold for an award of either component is 8 points. DWP therefore decided SH was no longer entitled to the daily living component of PIP but remained entitled to the mobility component of PIP at the standard rate, from 15 July 2020 to 09 December 2022.

SH asked DWP to reconsider its decision and on 01 September 2020, DWP decided that SH should be awarded 12 points for daily living activities and 12 points for mobility activities. DWP therefore awarded SH the daily living and mobility components of PIP at the enhanced rate. DWP awarded SH the components from 15 July 2020 to 09 December 2022. On 10 January 2021, DWP notified SH that her PIP award had been extended until 09 September 2023.

On 09 October 2022, DWP started a planned review of SH’s PIP award. She completed an award review form on 15 October 2022 and underwent a telephone medical assessment with a healthcare professional on 23 August 2023. Having received advice from that healthcare professional, on 13 September 2023, DWP decided SH scored 6 points for daily living activities and 4 points for mobility activities. DWP decided to supersede (which means, change) SH’s entitlement to PIP, bringing it to an end.

On 27 October 2023, SH lodged an appeal against DWP’s decision. Her appeal was heard by a First-tier Tribunal (“FTT”) at a video hearing on 14 October 2024. The FTT decided to remove the 6 points for daily living and the 4 points for mobility activities that DWP had awarded SH. It decided she scored no points for either daily living or mobility activities. The FTT therefore refused SH’s appeal.

On 10 March 2025, SH applied to the Upper Tribunal for permission to appeal. In a decision dated 06 April 2025, I granted SH permission to appeal against the FTT’s decision on the basis it was arguable the FTT had made one or more of the following errors of law:

The matters set out at paragraph 6 (a) to (c) and (e) to (f) above reflect appeal grounds argued by SH’s representatives.

S. Rauf is the Secretary of State’s representative in these proceedings, and I refer to them in this Decision as “the SSWP’s representative”. They support the appeal, in a helpful submission, which includes a clear and useful chronology. The SSWP’s representative invites the Upper Tribunal to set aside the FTT’s decision dated 14 October 2024 for containing material errors of law, for the reasons set out below.

Dealing adequately with the supersession of SH’s PIP award: the FTT acknowledged at paragraph 12 of the Statement of Reasons that DWP had superseded SH’s award under regulation 26 of the Universal Credit etc, (Decisions and Appeals) Regulations 2013, and that it considered DWP was justified in doing so. However, while this showed the FTT demonstrated the starting point for supersession was DWP receiving the new PA4 medical report in 2023, the Secretary of State’s representative argues the FTT’s reasoning was still inadequate.

In particular, the FTT had not explained how the evidence providing the factual basis for the superseding decision compared and contrasted with the other evidence available, to justify exercising the power to supersede the award (see paragraph 27 of SC). Furthermore, DWP’s supersession decision awarded SH more points than the FTT did, and the FTT had not addressed this either.

The SSWP’s representative submits the FTT failed to compare the evidence of SH’s previous award, thereby failing to address any principal arguments by SH that her condition had not improved to the point where she was not entitled to PIP. They also submit that the FTT’s considerations on this issue are not clearly spelt out and it is unclear whether it misdirected itself or failed to take into account a material consideration in the appeal (CCS/2152/04 at paragraph 2). The SSWP’s representative submits the inadequacy of the FTT’s explanation amounts to an error of law.

Adequately assessing the medical evidence in the appeal: the SSWP’s representative observes that SH is prescribed Sertraline and Amitriptyline, which are commonly used to treat moderate to severe depression and anxiety-related conditions. The SSWP’s representative submits these are indicative of SH experiencing persistent mental health difficulties. They submit that while paragraph 21 of the Statement of Reasons acknowledged that SH’s primary functional limitations arose from her mental health conditions, referring to her diagnosis and medication, the FTT failed to assess the implications of the treatment she was receiving for her conditions, and to indicate what this meant about the severity of those conditions.

The SSWP’s representative also submits that while the FTT referred to a Vitaminds report from July 2021, the FTT failed to address the April 2023 Vitaminds report. This recorded SH having PHQ-9 and GAD-7 scores indicating moderate to severe depression and severe anxiety. The FTT ought to have taken this into consideration as the 2023 report was closer to the date of DWP’s supersession decision than the 2021 report.

The SSWP’s representative submits the Vitaminds 2023 report also documented a deterioration in SH’s appearance and agitation levels, noting increased anxiety following a move, sleep difficulties, visible agitation and no benefit being felt from the increased dose of Sertraline she was prescribed. In the report, SH also reported being agitated and arguing with her family due to her mental health deteriorating. The SSWP’s representative submits that this evidence of interpersonal conflict, directly linked to SH’s frustration and emotional instability, is a clear indicator of SH having difficulties from her mental health. They submit that the FTT’s failure to address this evidence or explain why it did not take it into account in its reasoning, is an error of law.

The SSWP’s representative submits the FTT failed to consider the UC85 medical report completed in March 2022, which contained contemporaneous medical evidence of both physical and mental health impairments. The report documented concentration difficulties, hopelessness, fatigue and a history of self-harm. The SSWP’s representative argues it supports SH having chronic and complicated impairments. Nor did the FTT address the supporting evidence from SH’s mother, which, while not medical evidence, gave detailed first-hand observations of SHs daily functioning. The SSWP’s representative submits the FTT’s failure to engage with both sets of evidence was an error of law.

Deciding to take away points awarded by DWP: the SSWP’s representative submits the FTT failed to engage with the PA4 assessment report dated 23 August 2023, which recommended awarding SH 6 points for daily living activities and 4 points for mobility activities. They submit that the FTT did not explain why it departed from this opinion or considered it unpersuasive. The SSWP’s representative submits the FTT should have applied the principle established in DO, confirmed for decisions not making awards in TL, and identified the correct starting point in light of concessions made by DWP (by awarding SH points). They submit the FTT failed to do so.

Errors of law in relation to individual PIP activities: the SSWP’s representative submits the FTT made errors of law in terms of how it applied the law for the following PIP activities:

Having seen the support provided by the SSWP’s representative, SH’s representatives have, understandably, not provided further submissions about this appeal.

Neither party requested an oral hearing of the appeal. I took these preferences into account. I considered the appeal file. I decided the interests of justice did not require an oral hearing. The parties agree the FTT made material errors of law. It was proportionate to determine the appeal on the papers.

At the permission stage, I only needed to be persuaded that it was arguable with a realistic (as opposed to fanciful) prospect of success that the FTT had made an error of law in a way that was material.

At this substantive stage, I need to be satisfied on the balance of probabilities that the FTT did make an error or errors of law that were material.

I am satisfied, on the balance of probabilities, that the FTT made material errors of law in relation to the appeal grounds addressed by the SSWP’s representative at paragraphs 9 to 17 above, dealt with in more detail by their submission dated 02 June 2025.

Having decided the FTT’s decision involved material errors of law, it is appropriate to exercise my discretion to set aside the Tribunal’s decision dated 14 October 2024 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act provides that I must either remit the case to the First-tier Tribunal with directions for their reconsideration or remake the decision.

Neither party invited me to remake the FTT’s decision. In any event, it is necessary for further facts to be found and for the First-tier Tribunal to use its medical and disability expertise when evaluating the evidence, and to make appropriate findings of fact.

I therefore remit SH’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about what whether SH remained entitled to PIP at the date of DWP’s decision on 13 September 2023.

Although I have set aside the FTT’s decision dated 14 October 2024, I am not making any findings, or expressing any view, about whether SH should have remained entitled to PIP on 13 September 2023. The next tribunal will need to hear evidence, make its own findings of fact, and provide its reasoning for the decision it reaches.