OW v Secretary of State for Work and Pensions

I am satisfied on the arguments before me that that the First-Tier Tribunal (“FTT”) erred in law in the decision to which it came on 5 July 2024 and that its decision should be set aside as a result.

The FTT erred in law in following respects.

First, it did not provide adequate reasons for its finding that the appellant can manage her toilet needs unaided. The decision notice at paragraph 7 states “the appellant said that she now had an aid to get on and off the toilet” and photographs of her adapted toilet were in the bundle (Addition E, page 1). The FTT rely on the train journeys that the appellant made when travelling to visit her mother when she would not have access to aids. However, this reasoning fails sufficiently to explore whether the aid was required for over 50% of the time given the infrequency of those visits. Moreover, the FTT further erred in law in not exploring why the appellant had been provided with the aid in her home and whether this evidenced a prior need for such an aid. See generally AW v SSWP (PIP) [2022] UKUT 316 AAC.

Second, the FTT have provided insufficient findings and reasons about the appellant’s ability to dress and undress as the FTT relies on the appellant needing to get dressed before going to work, which she only does one day a week from home, and which is therefore not for the majority of the time.

Third, the FTT’s consideration (as shown in its fact-finding and reasoning) of daily living activity 9 was not adequate. It placed emphasis on the appellant’s work to demonstrate her ability to engage socially, without making findings of fact on the other 6 days of the week. Moreover, the FTT found that the appellant’s lectures were provided online, which on the face of it would not constitute face-to-face engagement. The appellant, furthermore, has a diagnosis of anxiety. The health assessment states “no current medication. GP informed her due to side effects of medication and already experiencing fatigue and memory loss, talking therapy was the best route to go down” (page 176). There is also evidence that she had attended therapy for her anxiety (Addition F, page 3). Given this, in my judgement the FTT did not provide adequate reasons for disregarding this evidence. And overall, and taking account of all of the points made in this paragraph, there were insufficient findings of facts of the appellant’s ability to engage with unfamiliar people generally: per AC v SSWP (PIP) [2021] UKUT 216 (AAC).

Fourth, the FTT’s conclusion under mobility activity 1 about the appellant being able to drive and having no restrictions on her driving license, which it found was supportive of her being able to plan and follow a route, was, at least further by way of explanation, not open to the FTT on the evidence relevant to the date of the decision under appeal. In the health assessment in November 2021 (page 146) it was recorded that “she had received her provisional driving license and is due to start learning to drive in January 2022”. In her health assessment in February 2023, it was reported that “she has a provisional license currently and she is currently revising to do her test. She hasn’t started the physical lessons” (page 176). The appellant’s representative mentions in submissions dated 1 July 2024 that she does not have a full driving license but does have a blue badge (Addition G, page 2). It is not made clear by the FTT whether the appellant gave oral evidence clarifying the position. Paragraph 6 of the decision notice states “she now held a driving license and the DVLA had not put any restrictions on the licence”. However, there is no further discussion of where the appellant drove to and how often she did so, nor why the FTT arrived at this conclusion notwithstanding the contrary indicators highlighted above. It is noted that the grounds of appeal (at paragraph 21) state that “the appellant does not have a driving license”, and that “she confirmed this during the tribunal hearing”. As the Secretary of State points out in paragraph 4.16 of his submission on the appeal to the Upper Tribunal (see below), there is nothing obviously in the audio record of proceedings which provides evidence supporting the FTT’s finding that the appellant was able to drive at the date of the decision under appeal.

Further under mobility activity 1, in my judgement the FTT failed to make sufficient findings of fact on the appellant’s ability to travel to unfamiliar places on her own. In paragraph 7 of the FTT’s reasons it is stated “moreover she had demonstrated an ability to go to unfamiliar places when in April 2024 she had flown from Gatwick to Barbados”. This journey was carried out 18 months after the date of claim and 14 months after the date of the decision under appeal. Without further by way of explanation as to the relevance of this evidence to the date of the decision under appeal, this should not have been taken into account or relied on by the FTT when reaching their conclusions. Furthermore, even if this evidence was relevant, the FTT failed to explain why this showed that the appellant was able to follow the route of an unfamiliar journey on her own. It is manifestly unlikely that the appellant was navigating the route from Gatwick to Barbados by herself. In addition, an ability to travel to an unfamiliar place by taxi on the face of it is not evidence of the appellant being able to follow a route of an unfamiliar journey on her own, as the route was being followed or navigated not by her but by the taxi driver and she was not on her own on that journey.

The Secretary of State supports the appeal being allowed on the grounds on which I have allowed this appeal in a helpful submission to the Upper Tribunal dated 31 October 2025. That submission expands on and explains further the basis of the grounds on which this appeal is being allowed. The material parts of that submission, with which I agree and which I adopt as my own, read as follows:

“4.2

It is my submission that the FtT has erred in law in both its fact finding and duty to provide adequate reasons for its decision. The conclusion from the FtT on how they assessed the claimant’s functional abilities when dealing with the descriptors claimed for appears limited in their reasoning. It seems that what the FtT has provided when reading the SOR, appears to be no more than a rehearsal of evidence and a conclusion without an explanation.

4.3

In dealing with UT Judge Wright’s helpful first ground in his Permission to Appeal (PTA) (repeated above) in relation to daily living activity 5 - Managing toileting. The FtT at paragraph 8(v) of the SOR noted the following:

(v).v)Toileting - At the appeal hearing the Appellant claimed that she used an aid to help her with using the toilet. However the Tribunal was satisfied that in February 2023 the Appellant had not had such a problem with toileting as to give rise to the award of any points under the statutory criteria. She had been able to make long journeys including travelling to London when she would not have had access to any aids. Moreover although the Appellant claimed to sometimes have difficulty in cleaning herself after using the toilet, the Tribunal was satisfied that the Appellant did not have significant problem with manual dexterity. The Tribunal was satisfied that no points were applicable.

4.4

I note that the HealthCare Professional (HCP) had recorded at page 176 the following: “…Location of the toilet is upstairs and downstairs. She will hold the toilet side due to her left leg pain when getting on and off the toilet…”. This is confirmed at page 204 of the claimant’s mandatory reconsideration letter where it is noted that: “…I stated that at times I use the toilet unaided. On these occasions use the walls and other objects in the bathroom such as the sink and bath to help support me to raise and lower myself on and off the toilet…”

4.5

However, the FtT do not appear to engage with this evidence. Moreover, it is clear that these difficulties are such that as helpfully noted by UT Judge Wright in their PTA that the claimant has been provided evidence of aids as seen at page Addition E1 where there is a raised toilet seat and a frame. Could it be that whilst these may not have been provided at the date of claim that this is not to say there was a reasonable need, so much so that the claimant now has not only a frame around her toilet but a raised seat too. I would also note that in this picture it can be seen how close the bath is to the toilet and as such corroborates the claimant’s evidence given in her mandatory reconsideration letter that she uses the bath to raise from the toilet (repeated above), which may have been all that was available until the aids were in place.

4.6

Additionally, although that the FtT in their decision notice and having listened to the recording that they appear to place undue weight on the fact that the claimant is a carer for her mother and that the claimant would travel to London and was not using aids for toileting then, even suggesting a radar key would be probable (recoding at around 30minutes). However, firstly it is unclear how a radar key may help specifically given most train or plane toilets are small and the claimant may have used the wall or small sink as she had stated in the letter (repeated above), prior to aids.

4.7

Furthermore, it is recorded at paragraphs 6 and 7 of the decision notice where it states: “…She indicated that she would go to London to visit her mother who had been diagnosed with dementia so she made regular visits. She would travel to Euston by train and then get a cab. She had most recently been to London about 3 months ago…The Appellant said that she now had an aid to get on and off the toilet. When she had travelled by train or plane she had not used the toilet….”

4.8

However, even if the claimant was travelling to see her mother and was not using the toilet, it is unclear how this would show that the claimant’s difficulties were not present on the majority of days. As such I respectfully concur with UT Judge Wright at point 3 of the PTA where it is recorded that: “…The FTT rely on the train journeys that the appellant made when travelling to visit her mother when she would not have access to aids. However, it is arguable this fails sufficiently to explore whether the aid was required for over 50% of the time given the infrequency of those visits….”

4.9

In turning to UT Judge Wright’s second ground in their PTA (repeated above), in relation to daily living activity 6 – Dressing and undressing. I note that the FtT stated at paragraph 9(vi) of the SOR the following:

(vi)

“Dressing- The Appellant claimed to have restrictions of the use of both her upper and lower limbs, but there was no medical evidence to verify that. She had acted as a carer for others and it seemed implausible to the Tribunal that she would be unable to aid others and yet be unable to dress herself. She would need to get dressed before she went to work. The Tribunal was satisfied that no points were applicable in respect of this Activity.”

However, this appears at odds with the evidence detailed by the HCP at page 176, with regards to the claimant getting dressed for work specifically given the following:

“She works as a self-employed lecturer. She works from home 6 hours over 1 day. She doesn't work more hours due to her pain. Job role involves sitting and marking assignments online or quality assurance work. She uses the computer and read the assignments and type with both hands to give feedback. She may need to travel into work, and she would get a taxi there and back alone, hasn't done recently.”

4.10

Furthermore, the FtT appear to have made somewhat contradictory findings when relying upon the claimant’s work. For example the FtT stated at paragraph 9 of the decision notice that: “…She claimed that she had not done any self employed work in 2024.She thought the last time she had done any paid work was in May 2023…”. Whilst it is correct that the period of 2024 may not be relevant, it is clear that the work is not only 1 day a week but at best infrequent. As such it is unclear how the FtT concluded that the claimant was able to dress for work and this was on the majority of days. This I submit is a further error in law.

4.11

I would also note that the claimant’s representative in their submission reported the following at page Addition G4 the following:

“At the date of the decision the appellant struggled with both upper body and lower body clothing. The appellant required help with her shoes and socks due to pain in her lower back on her left side. The appellant was unable to bring her left knee to her chest in order to facilitate putting on her shoe and socks herself. Her family would help her. The appellant did not dress every day due to the pain she experienced and low, often staying in the same clothes all day due to the exertion being too much.

Although the appellant had purchased a shoehorn, she struggled to use this due to pain in the left side of hip and back. Therefore, despite having one she still required assistance.”

4.12

However, the FtT do not engage with this evidence, which appears to be at odds with their conclusion at paragraph 8(iv) where the FtT stated the following: “…At the appeal hearing the Appellant told the DQPM that she was now using a bath board. Taking a generous view the Tribunal was prepared to award 2 points under the terms of 4b.”. Whilst it is correct that this is in relation to washing and bathing, it is my submission that the FtT should have used their inquisitorial function to establish if the same physical difficulties and use of an aid (shoe horn) or assistance may have resulted in any of the scoring descriptors for daily living activity 6.

4.13

In dealing With UT Judge Wrights third ground in their PTA in relation to daily living activity 9 – Engaging with others face to face. I courteously agree that the fact finding by the FtT were inadequate. The FtT stated at paragraph 8(ix) of the SOR the following:

(ix)

“Socialisation- The Appellant told the DQPM that when she had visited Barbados she had stayed with family members. She had had regular contact with her mother, for whom she had been carer. Her job required her to engage with colleagues and students both virtually and face-to-face. This Tribunal was satisfied that the Appellant did not have such a difficulty with social engagement as to give rise to the award of any points under the terms of the statutory criteria.”

4.14

It is unclear how the FtT relied upon the claimant’s ability to engage with people in her job, specifically given as noted above (paragraph 4.10) that the claimant only works 1 day a week. Also it is noted by the HCP at page 176 the following: “She works as a self-employed lecturer. She works from home 6 hours over 1 day. She doesn't work more hours due to her pain. Job role involves sitting and marking assignments online or quality assurance work. She uses the computer and read the assignments and type with both hands to give feedback. She may need to travel into work, and she would get a taxi there and back alone, hasn't done recently.”. As such, I submit that the FtT have erred in law in relying not only on the claimant’s work which is not on the majority of days, but the fact the as noted by the HCP that the work is online, which is not the test when looking at daily living activity 9.

4.15

In reaching its conclusions regarding the evidence to support its decision, it appears that the FtT has overlooked its duty to consider the evidence in a complete manner. This has also resulted the FtT taking an arguably less than balanced approach in assessing aspects of the claimant’s evidence, in particular the evidence as noted above and that of the claimant and medical professionals. It is possible that the difficulties the claimant faces as a result of his multifarious health conditions may have resulted in the claimed difficulties when undertaking the descriptors claimed for. This is a possibility that the FtT should have considered as part of their inquisitorial duty, but evidently, did not.

4.16

In addressing UT Judge Wright’s fourth ground in their PTA (repeated above) in relation to mobility activity 1, specifically around whether the claimant has passed their driving test. I politely wish to note that I have listened to the audio recording, however, whilst there are parts that can be heard (as noted above regarding the radar key), there are substantial parts that cannot be heard and at times significant long silences. As such, I am unable to comment on this point.

4.17

Notwithstanding this, I will address point 7 of the PTA in relation to mobility activity 1, insofar as the FtT concluded at paragraph 7(i) in relation to unfamiliar journeys that: “…Moreover she had demonstrated an ability to go to unfamiliar places when in April 2024 she had flown from Gatwick to Barbados. This Tribunal was satisfied that the Appellant could plan and follow a route and go to unfamiliar places, without supervision. The Tribunal concluded that no points were applicable under the terms of this activity”. In respect of this evidence, I would concur with the comments of UT Judge Wright who states the following on this matter: “…It is manifestly unlikely that the appellant was navigating the route from Gatwick to Barbados by herself…” Even if the FtT are relying on the journeys to London or to the airport, given that the claimant would take a taxi in these circumstances, is it not the driver who is planning and following the journey and that she is not alone? Additionally, I am in agreement that the Journey to Barbados was carried out 18 months after the date of claim and 14 months after the date of the decision under appeal. This I submit is a further error in law.

4.18

Although the FtT is entitled to give weighting to whatever evidence that it chooses, where there is conflicting evidence, it must in the first instance explore and consider it in a holistic manner and provide sufficient reasons explaining why it preferred the evidence that it had. In this appeal the FtT does not appear to have done that. There appears to be a distinct lack of reference to the evidence provided by the claimant and the medical evidence which demonstrate the co-morbidities and nature of her health conditions. Therefore, it could be said that had the FtT given appropriate consideration to all the evidence, including accurately identifying the significant pain and effects of the claimant’s conditions, the FtT may have considered the claimant’s limitations. As such, I submit that the FtT have failed to give adequate reasons as to why evidence in parts was not accepted when deciding what points were award.

4.19

In view of the above, Iam in agreement with UT Judge Wright that the inadequacy of reasons makes it difficult for a claimant to know whether the FtT applied the correct legal tests in assessing the evidence, making its findings of fact, and arriving at its decision. Notwithstanding my support of the above grounds, I respectfully submit that any further grounds raised will be subsumed by the newly constituted FtT.

4.20

If the UT Judge accepts my submission that the FtT has erred in law on points identified earlier in this submission, then I respectfully request that the appeal be remitted to a different first-tier Tribunal for further fact finding.

4.21

For completeness, the UT Judge will wish to know that the claimant has made a further claim to PIP on 16/07/2024. The claimant scored12 points for the daily living descriptors and 12 points were awarded for the mobility descriptors. As such the claimant scored sufficient points to be awarded the enhanced rate of both the daily living and mobility component of PIP from 16/07/2024.”

For the reasons set out above, the appeal succeeds. The Upper Tribunal is not able to re-decide the first instance appeal. The appeal will therefore have to be re-decided afresh by a completely differently constituted FTT, after an oral hearing. The fresh FTT will be dealing with a closed period of entitlement to PIP covering the period from and including 22 September 2022 up to and including 15 July 2024.

The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether her appeal will succeed on the facts before the new FTT, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.