KG 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 28 March 2023 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 18 October 1974. She suffers from wrist and hand disorders, anxiety, dizziness and falling and tingling lips and mouth.

On 16 March 2022, the Appellant made a claim for Personal Independence Payment (‘PIP’). By a decision dated 21 July 2022 the Appellant was assessed by the Respondent as scoring 6 Daily Living points (descriptors 1b, 4b and 6b) and 4 Mobility points (descriptor 2b). As this still fell short of the required number of points for an award of PIP, no award was made. The decision was reconsidered by the Respondent on 21 September 2022 but not revised.

The Appellant appealed to the FtT. By a Decision Notice dated 28 March 2023, the FtT confirmed the existing scores and so dismissed the appeal.

The Appellant then applied to the Upper Tribunal for permission to appeal. In a detailed and comprehensive order dated 4 June 2025, Upper Tribunal Judge Butler granted permission to appeal on the grounds that the FtT arguably erred in:

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 the Respondent’s submissions (Form 25), Mrs Woodhall indicated that the Appellant does not want an oral hearing and 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.

The FtT is under a duty to make adequate findings on relevant issues (Benmax v Austin Motor Co Ltd[1955] AC 370 at 373). This requires the FtT to assess and evaluate the competing evidence. Assessment involves analysing the factors that affect the probative worth of the evidence as a whole and evaluating the evidence as assessed by reference to the standard of proof.

The FtT is also under a 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”.

In granting permission to appeal, Upper Tribunal Judge Butler noted that:

“10.

At paragraph 28 of the Statement of Reasons, the Tribunal states it has incorporated your oral evidence from the hearing by reference, and that details of your oral evidence are also found in the findings of fact section of the document. The sections of the document headed findings of fact deal with specific PIP activities. For each activity, the Statement of Reasons largely appears to set out evidence, for example, what you wrote in your PIP2 questionnaire, what the healthcare professional recorded and what you said at the appeal hearing. It is not clear whether the Tribunal is making findings of fact in terms of what is recorded or listing the evidence.

11.

The Tribunal has written for each activity that what it has decided, for example, that you did, or did not require aids or that no point-scoring descriptor applied to you. However, the Tribunal has not clearly explained why it has reached that conclusion.”

Having considered the Statement of Reasons (‘SoR’), I agree with the view expressed by Upper Tribunal Judge Butler and echoed by Mrs Hawley on behalf of the Respondent. In my judgment, the FtT failed to make adequate findings of fact and failed to give adequate reasons for the findings that it did make and the conclusions that it reached in respect of the majority of the relevant Daily Living and Mobility Activities and so erred in law. Under the heading ‘Findings of Fact’ the FtT simply set out a brief summary of the evidence and then a conclusion without making any proper findings of fact and/or without any proper or adequate analysis or reasoning. Further, in respect of a number of Daily Living and Mobility activities the FtT failed to properly engage with the Appellant’s evidence.

For the purposes of this judgment, I do not need to set out each and every relevant matter, but I highlight the following matters by way of example only:

In granting permission to appeal, Upper Tribunal Judge Butler noted that:

“12… the Tribunal has not addressed the medical letter dated 04 October 2022 from the rheumatology clinic (pages 80-81 of appeal bundle). This indicated you had difficulties with shoulder stiffness and feet pain, difficulties making fists and struggled with small buttons. The letter also records that on examination, you were tender from cervical spine down to your lumbar spine, which you had reported was persistent since June 2021.

13.

The Tribunal has not addressed this letter, which contains some medical evidence potentially relevant both to whether your back and shoulder pain would affect your ability to sit down onto and rise from a toilet, and also whether your problems with fine movement affected using cutlery. While you did not identify difficulties managing toilet needs, the Tribunal had accepted the effects of your medical conditions meant you reasonably required aids for preparing food, washing and bathing and dressing. It was open to the Tribunal, using its inquisitorial duty, to consider whether you reasonably required them, in the form of a grab rail, for managing toilet needs as well.”

The letter from Dr A Haque of the Rheumatology Clinic of the Royal Hallamshire Hospital dated 4 October 2022 stated (amongst other matters) as follows:

“…She has difficulty making fists and her husband helps with washing. She is able to dress herself but struggles with small buttons… she has had back pain since June 2021. This is predominantly in the thoracic area, but she was tender from cervical spine down to lumbar spine on palpation today. This is persistent symptomatology since June 2021 and there is no early morning stiffness….”

At paragraph 23 of the SoR, the FtT noted that the letter stated that “following vaccination in April 2021. She had a burning sensation everywhere… Pains in the feet… Swelling in the hands… This lasted one year. This has now resolved”. The FtT did not, however, note or engage with the parts of the letter highlighted in paragraph 17 above.

I agree with the view expressed by Upper Tribunal Judge Butler and echoed by Mrs Hawley on behalf of the Respondent. Although the FtT noted the letter dated 4 October 2022 at paragraph 23 of the SoR, it did not properly consider or address the full contents of that letter. The matters set out in paragraph 17 above were potentially relevant to its consideration of most of the Daily Living and Mobility activities. For example, bearing in mind that the Appellant had stated that she could not cut meat because handling a knife was painful, evidence that she struggled with small buttons was potentially relevant to whether she needed an aid or appliance to be able to take nutrition (descriptor 2b(i)) or needed assistance to be able to cut up food (descriptor 2b(iii)). The FtT ought, therefore, to have at least considered and engaged with the full contents of the letter dated 4 October 2022 and its failure to do so means that it failed to take into account potentially relevant evidence and so erred in law.

I also agree with Upper Tribunal Judge Butler that the FtT ought, in the exercise of its inquisitorial jurisdiction, to have at least considered whether the evidence contained in the letter dated 4 October 2022 was relevant to Daily Living activity 5 (Managing Toilet Needs). As explained by Upper Tribunal Judge Butler, pain in the Appellant’s shoulders and back was potentially relevant to whether she could sit down and get up from the toilet safely without the use of some form of aid (e.g. a handrail). I am satisfied that the FtT’s failure to do so also amounts to an error of law.

I am satisfied that the errors of law identified above are material. Had the FtT determined any of the above matters differently and in favour of the Appellant, she may have been entitled to an award of PIP. 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 28 March 2023, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to PIP (and, if so, which component(s) and at what rate(s) and for what period). That is a matter for the new FtT. The new FtT must review all the relevant evidence and make its own findings of fact accordingly.

In doing so, however, the new FtT will have to focus on the Appellant’s circumstances as they were as at 21 July 2022, 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).

For the sake of completion, I note that Mrs Hawley has confirmed that following a further claim for PIP on 22 September 2023, the Appellant was assessed by Respondent as scoring 11 Daily Living points (descriptors 1b, 2b, 3b, 4b, 5b and 6b) and 12 Mobility points (descriptor 2e). The Appellant was, accordingly, awarded the Daily Living component of PIP at the standard rate and the Mobility component of PIP at the enhanced rate from 22 September 2023 to 28 July 2026.

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 28 March 2023 (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)).