AR v Secretary Of State For Work And Pensions

I allow the Appellant’s appeal to the Upper Tribunal. The First-tier Tribunal’s (‘FtT’) decision dated 16 October 2024 involves an error on a point of law and I therefore set aside the decision.

The case now needs to be reheard by a new FtT. I cannot predict the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the appeal before the new FtT will succeed on the facts. The new FtT may reach the same, or a different, decision to that of the previous tribunal.

The Appellant was born on 3 July 1957. She suffers from primary generalised osteoarthritis, genitourinary disease and dizzy spells. She has more recently been diagnosed with cancer.

Following a successful appeal before the FtT on 9 June 2020 the Appellant was assessed as scoring 8 Personal Independence Payment (‘PIP’) Daily Living points (descriptors 1b, 4b, 5b and 6d). The Appellant was, accordingly, awarded the Daily Living component of PIP at the standard rate from 27 November 2019 to 26 November 2024.

By a letter dated 13 January 2021 the Respondent informed the Appellant that her PIP was award had been extended to 26 August 2025 to allow for a planned PIP award review at a later date.

On 9 November 2023 the Appellant reported a change in circumstances. Following a review and by a Decision Notice dated 16 January 2024, the Respondent assessed the Appellant as scoring 8 Daily Living points (descriptors 1b, 4b, 5b and 6d) and 4 Mobility points (descriptor 2b). The Respondent determined that there had been no significant change in the Appellant’s circumstances and so the Appellant was again awarded the Daily Living component of PIP at the standard rate. Having failed to score the required minimum 8 Mobility points, no award was made for the Mobility component of PIP. The duration of the PIP award was, however, extended to July 2033. The decision was reconsidered by the Respondent on 27 March 2024 but not revised.

The Appellant appealed to the FtT. By a Decision Notice dated 16 October 2024, the FtT confirmed the existing scores and awarded a further 2 Daily Living points (descriptor 9b). As the award of an additional 2 Daily Living points did not entitle the Appellant to an award of the Daily Living component of PIP at the enhanced rate, the appeal was refused. By a further Decision Notice dated 11 March 2025 the FtT refused permission to appeal to the Upper Tribunal.

The Appellant then applied to the Upper Tribunal for permission to appeal.

In a detailed and comprehensive order dated 2 June 2025, Upper Tribunal Judge Butler granted permission to appeal on the grounds that the FtT arguably erred in failing to properly consider and explore:

Upper Tribunal Judge Butler did not formally refuse permission on other grounds of appeal raised by the Appellant. She did, however, record in her order that those grounds would only need to be considered if the grounds of appeal upon which permission to appeal was formally granted were not considered determinative of the appeal to the Upper Tribunal.

Mrs Helen Hawley, who now acts for the Respondent in these proceedings, supports the appeal to the Upper Tribunal. She invites the Upper Tribunal to set aside the FtT’s determination and to remit the matter back to the FtT for a fresh hearing. Mrs Hawley also confirmed that the Respondent agrees to the Upper Tribunal giving a decision without reasons.

In her reply to Mrs Hawley’s written submissions (Form 25), the Appellant indicated that she does not want an oral hearing and that she too agrees to the Upper Tribunal giving a decision without reasons.

Not least given the support of the Secretary of State’s representative for the appeal, I am persuaded that the FtT erred in law for the reasons set out below.

In respect of Ground 1, Upper Tribunal Judge Butler noted as follows:

“7…DWP changed your award by changing how long you were entitled to receive it for. This is called a supersession decision. In SC v SSWP (PIP) [2019] UKUT 165 (AAC), the Upper Tribunal identified that… a First-tier Tribunal should take the following steps when dealing with a DWP decision superseding (which means, changing) a PIP award include:

(a)

Asking if there is a basis in law for DWP’s supersession decision (which means identifying the legal ground available to supersede the award); and

(b)

If so, ask whether DWP has provided adequate reasons (when addressing all the evidence available) to explain and sustain the decision; and

(c)

The FTT is able to make all the decisions steps that DWP could have made, so if the FTT considers a different supersession decision should have been made, the FTT should itself explain the legal ground available to change the award and provide adequate reasons for why the award should be changed.

8.

Having read the Statement of Reasons, it is not clear that the FTT addressed the supersession decision adequately, including explaining its own decision to supersede (change) your PIP award. This may represent an error of law.”

It is common ground that the Respondent’s decision dated 16 January 2024 was a supersession decision by reason of it extending the duration of the Appellant’s PIP award. The FtT was clearly aware of this as it noted at paragraph 2 of the Statement of Reasons (‘SoR’) that:

“The Respondent’s decision was made as a result of an award review. The Appellant had previously been in receipt of the same award. On 16/01/2024, the Respondent decided there had been no significant change and so had simply extended the duration of the award.”

The FtT was, therefore, required to take the steps and address its mind to the questions set out in SC. I am satisfied that it failed to do so and that its failure amounts to an error of law. There is no reference in the SoR to SCor to the steps and questions set out in SC. There is no reference to the relevant statutory provisions relating to the grounds for and circumstances in which a decision may be superseded. There is no consideration of the basis upon which the Respondent superseded the earlier PIP award and its reasons for doing so. Indeed, there is no reference in the SoR to the ‘supersession’. The FtT appears not to have applied its mind to whether there was a lawful and valid basis for the Respondent to have superseded the earlier PIP award.

Further, the FtT is under a general duty to give adequate reasons to explain how relevant findings were made and its conclusions. In Re B (Appeal: Lack of Reasons) [2003] FLR 1035 Thorpe LJ stated (at paragraph 11): “I would say that the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he arrived at his findings, and then his conclusion?”. Similarly, at paragraph 2 of the decision in CCS/2152/04, the Tribunal noted that: “It is well established that even if a decision itself may be sound, it amounts to an error in law making it necessary for the decision to be set aside if sufficient findings and reasons are not spelt out to give the parties a reasonable understanding of the basis on which it has been reached. This is a necessary safeguard since otherwise it is not possible to know whether the tribunal may have misdirected itself or omitted to take account of some material consideration in the case.”

Insofar as the FtT applied its mind to the steps and questions in SC, it failed to explain that it did so and/or give adequate reasons for its conclusions. The failure to do so amounts to an error of law.

In respect of Ground 2, Upper Tribunal Judge Butler noted as follows:

“9…The Tribunal was required to assess your ability to carry out the PIP activities, applying regulation 4(2A) of the Social Security (Personal Independence Payment) Regulation 2013. This included assessing whether you could carry out activities safely. The Upper Tribunal decision of RJ, GMcL and CS v SSWP (PIP) [2017] UKUT 0105 (AAC) confirms that the assessment of “safely” requires DWP and the tribunal to consider whether there was a real possibility that cannot be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case. The likelihood of harm occurring and the severity of the consequences (if it did) are both relevant to this assessment.

10.

The FTT accepted you experience dizzy spells (paragraph 15(f) of Statement of Reasons). It stated that these did not cause significant functional limitation on the majority of days. During the hearing, the medically qualified tribunal member asked you about dizziness. You said it often followed a migraine, but sometimes appeared separately with symptoms of double vision. You described having this around once or twice a week and that it might last for seconds or minutes. You described one occasion where you felt you were walking sideways due to it and fell to the ground. I did not hear the FTT members asking you about whether you had any warning of dizziness before it came on. In the circumstances, the FTT arguably should have considered whether your dizziness created a real possibility (that could not be ignored) of harm occurring, having regard to the likelihood of harm occurring and what might happen if it did. The FTT has not clearly addressed this in relation to the PIP activities. The wording that you did not experience dizziness on the majority of days suggests it may not have applied the correct legal test in assessing the effect of your dizziness. This may indicate an error of law.”

At paragraph 8 of the SoR, the FtT stated as follows:

“When considering the PIP activities, the Tribunal considers whether the Appellant could carry out the specified activities safely, to an acceptable standard, repeatedly and within a reasonable time. Generally, a descriptor must be met for over 50% of the days during the assessed period for it to apply, although further rules can apply in certain situations.”

Although the FtT noted that it was required to consider whether the Appellant could carry out relevant activities ‘safely’, it did not go on to direct itself that in accordance with RJ, GMcL and CS v SSWP (PIP),the assessment of “safely” requires the FtT to consider whether there is a real possibility that cannot be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case. The fact that it did not do so in express terms does not, in itself, amount to an error of law. However, in this case, there is nothing in the SoR to suggest that the FtT properly applied its mind to and/or explored the likelihood of harm occurring as a result of the dizzy spells experienced by the Appellant and the severity of the consequences (if it did) when considering relevant activities. Instead, it appears to have focused on whether the Appellant’s dizzy spells caused significant functional limitation on the majority of days (see e.g. paragraphs 15(f) and 40 of the SoR). I am satisfied that in light of the questions asked by the FtT during the hearing and the Appellant’s responses (as summarised by Upper Tribunal Judge Butler), the FtT was required to further explore and consider the likelihood of harm occurring as a result of the dizzy spells experienced by the Appellant and the severity of the consequences (if it did) when considering relevant activities. The failure to do so amounts to an error of law.

In respect of Ground 3, Upper Tribunal Judge Butler noted as follows:

“11…In its Statement of Reasons, the FTT referred to the fact you had not listed in your claim form needing help to get in and out of a bath, as a reason for rejecting you needing help to do so even if you had aids available. However, you had mentioned needing help from your daughter to get in and out of the bath in your PIP award review form dated 31 December 2023 (page 128 of bundle). You also mentioned it in your mandatory reconsideration request at page 150 of the bundle. In circumstances where DWP had not carried out a medical assessment for you with a healthcare professional before changing your award on 16 January 2024 (which would, or should, have explored whether you could get in and out of the bath with aids), exercising its inquisitorial duty, the FTT arguably should have considered your description of difficulties, rather than ruling it out. This may indicate procedural unfairness by the FTT.”

In light of (i) the Appellant not having been subject to a further medical assessment; and (ii) that she had positively claimed in her PIP Award review form and her Mandatory Reconsideration request that she needed help from her daughter to get in and out of the bath, the FtT was required to at least further explore the Appellant’s claim, rather than dismissing it on the grounds that the Appellant had not raised it in her PIP2 form or in her grounds of appeal. I am satisfied that the FtT’s failure to do so amounts to an error of law and was procedurally unfair.

Further, at the end of paragraph 27 of the SoR, the FtT went on to find as a matter of fact that the Appellant was able to get in and out of the bath without needing assistance from anyone else. In coming to that conclusion, the FtT did not properly engage with the Appellant’s claim that she needed help from her daughter specifically to get in and out of the bath. Indeed, there is no reference in the SoR to the Appellant needing help from her daughter when getting in and out of the bath. The only reference in this context to the Appellant’s daughter was in paragraph 28 of the SoR when the FtT noted that the Appellant had claimed that her daughter washed her hair. I am satisfied that that the FtT’s failure to properly engage with the Appellant’s claim that she needed help from her daughter to get in an out of the bath amounts to an error of law.

In respect of Ground 4, Upper Tribunal Judge Butler noted as follows:

“12…In your award review form dated 31 December 2023 and your mandatory reconsideration request, you mentioned that you needed a ruler to be able to read text (pages 130 and 155 of bundle). The FTT did not address whether this would constitute an aid for the purpose of activity 8 (reading). Listening to the hearing recording, the Tribunal Judge explained to you at the start of the hearing that reading involves reading two sentences and having glasses does not count. You were asked whether you could do that with your glasses on. You said yes. The Tribunal Judge said: “OK, so we won’t need to ask you about that one”. However, it is arguable that the FTT failed to use its inquisitorial duty to explore adequately whether you reasonably required a ruler to read, and if so, whether it would count as an aid. This may indicate an error of law.”

In light of the Appellant having claimed in her PIP Award review form and her Mandatory Reconsideration request that she needed a ruler to be able to read text, the FtT was required to at least further explore the Appellant’s claim and then make adequate findings as to (i) whether and the extent to which she needed a ruler to read; and (ii) whether a ruler amounted to an ‘aid or appliance’ for the purposes of descriptor 8b. The FtT appears only to have considered the Appellant’s ability/inability to read with glasses for the purposes of descriptor 8a and did not consider her claimed need to use a ruler when reading and whether that fell within descriptor 8b. The FtT’s failure to do so amounts to an error of law.

In respect of Ground 5, Upper Tribunal Judge Butler noted as follows:

“13…The FTT awarded you descriptor 9.b (2 points) for this activity, deciding that you reasonably required a prompt to engage with other people (paragraph 44 of Statement of Reasons). The FTT went on to state that it was satisfied you were not so stressed about it that you needed social support, as your mental health was not treated with medication at the date of DWP’s decision. The Supreme Court decided in SSWP v MM [2019] UKSC 34 (“MM”) that prompting can constitute social support, where to be effective, it needs to be given by someone trained or experienced in assisting people to engage socially. The Supreme Court also confirmed this category can include family members who are experienced in assisting a claimant. The FTT did not address this in its Statement of Reasons, and the reasoning it provided at paragraph 44 suggests it may have misdirected itself in law, by failing to explore whom you needed to provide you with prompting for it to be effective. This may indicate an error of law. Alternatively, the FTT may have failed to provide adequate reasons for its decision on this issue.”

In her PIP Award review form, the Appellant stated as follows:

“I don’t mix with other people my husband is always with me or my granddaughter to deal with anything. I only go to my daughters or shop. Mixing makes my stress worse…I avoid this. I need someone with me, so I don’t get stressed an[d] anxious.”

In her and her Mandatory Reconsideration request the Appellant stated as follows:

“…I avoid mixing with people as I am always in pain and get very dizzy, which makes me have anxiety. I don’t mix with other people my husband or daughter or granddaughter are always with me. I only go to my daughters or to the shop in the car. I will sit in the car or if I go in someone has to be with me so I can hold onto them as in the shop I get anxious and dizzy, so I hold onto my husband, but I just want to get out of there and get back home, as this causes me distress...”

In any earlier Mandatory Reconsideration request dated 11 November 2019, the Appellant stated as follows:

“…not mix easily outside my own family and one next door neighbour. I have lost considerable confidence since losing my teeth (and being unable to adjust to false ones) and much prefer to stay at home. I have a phobia of going to medical appointments because of previous bad experiences…”

At paragraph 44 of the SoR the FtT concluded as follows:

“44…The Tribunal was satisfied that the Appellant knew how to interact with others in a contextually and socially appropriate manner, and she could understand body language. However, another part of the test for this activity is establishing relationships and the Tribunal found this included engaging with new people. It was this latter part of the test with which the Tribunal found the Appellant would struggle as she was self-conscious about not having any top teeth. The Tribunal found that a prompt was reasonably required. The Tribunal was satisfied that the Appellant was not so stressed about it that she needed social support, as her mental health was not treated with medication at the date of decision. However, the loss of her top teeth would reasonably affect someone’s confidence, and the Tribunal found that on the majority of days a prompt to engage face to face was reasonably required.” (emphasis added).

The FtT found that the Appellant needing ‘prompting’ to engage with other people (descriptor 8b) but did not require ‘social support’ to do so (descriptor 8c). The FtT so found because the Appellant’s mental health issues were not treated with medication, and so she was “not so stressed” about engaging with other people so as require social support.

The FtT appears to have determined the issue of whether the Appellant required social support largely by reference to the state of Appellant’s mental health generally and whether she required medication for her mental health issues rather than by reference to the matters set out in SSWP v MM [2019] UKSC. In MM the Supreme Court held that (i) prompting itself can constitute social support, where to be effective, it needs to be given by someone trained or experienced in assisting people to engage socially; and (ii) this category can include family members who are experienced in assisting a claimant.

Having found that the Appellant, needed prompting to engage with other people, the FtT ought to have gone on to consider in line with MM whether the prompting needed was of such a nature that it could amount to social support. To do so, the FtT ought to have at least explored who precisely was assisting the Appellant by prompting her to engage with other people, the nature of the prompting, whether the person providing the prompting was experienced in assisting the Appellant and whether prompting by that person was needed for it to be effective.

I am satisfied that in taking the approach that it did, the FtT applied the wrong legal test and/or failed to properly apply the correct legal test. Insofar as the FtT did consider and apply MM it failed to explain that it had done so and/or give proper and adequate reasons for its findings and conclusions. In either case, the FtT erred in law.

I am satisfied that the errors of law identified above are material. As the Appellant was assessed as scoring 10 Daily Living points, had the FtT determined any of the above matters differently and in favour of the Appellant, she may have been awarded at least an additional 2 Daily Living points and so would have been entitled to an award of PIP at the enhanced rate. In such a case, the outcome of the appeal would have been different.

As this is enough to allow and so dispose of the appeal to the Upper Tribunal, I need not and do not express any view on the other grounds of appeal and matters raised by the Appellant.

Accordingly, I allow the appeal, set aside the FtT’s decision and remit the original appeal for re-hearing before a new FtT. As facts need to be found, it is not appropriate for me to re-make the decision on paper.

There will need to be a fresh hearing of the appeal before a new FtT. Although I am setting aside the FtT’s decision dated 16 October 2024, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to any further Daily Living and/or Mobility points and whether she is entitled to

In doing so, however, the new FtT will have to focus on the Appellant’s circumstances as they were as at 16 January 2024, and not the position as at the date of the new FtT hearing. This is because the new FtT 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” (section 12(8)(b) of the Social Security Act 1998).

I therefore conclude that the decision of the FtT involves a material error of law. I allow the appeal and set aside the FtT’s decision dated 16 October 2024 (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new FtT subject to the directions above (section 12(2)(b)(i)).