LAJ v The Secretary of State for Work and Pensions

This is an appeal, with the permission of the District Tribunal Judge, against the decision of the First-tier Tribunal sitting at Fox Court on 13 October 2023.

I shall refer to the appellant hereafter as “the claimant”. The respondent is the Secretary of State for Work and Pensions. I shall refer to her hereafter as “the Secretary of State”. I shall refer to the tribunal which sat on 13 October 2023 as “the Tribunal” and the tribunal to which I am remitting the matter as “the new tribunal”.

The claimant appealed against the supersession decision of 17 March 2023 that she was entitled to 15 points for the daily living component and 10 points for the mobility component of personal independence payment. She was therefore entitled to the daily living component of personal independence payment at the enhanced rate and the mobility component at the standard rate from and including 17 March 2023 to and including 13 February 2026. The decision was subsequently reconsidered, but not revised, on 13 July 2023. She had previously been entitled to the daily living component at the enhanced rate and the mobility component at the standard rate from and including 14 April 2020 to and including 16 March 2023 (extended to 13 November 2023 because of the pandemic).

The matter came before the Tribunal on 13 October 2023 when the appellant did not appear, having asked for the matter to be decided on the papers and the Tribunal considered that it was fair to proceed in her absence. The appeal was refused.

The Tribunal found that the appellant was entitled to 15 points for the daily living component and 10 points for the mobility component of personal independence payment. She was therefore entitled to the daily living component of personal independence payment at the enhanced rate and the mobility component at the standard rate from and including 17 March 2023 to and including 13 February 2026.

On 27 November 2024 the District Tribunal Judge acceded to the claimant’s application and granted her permission to appeal.

On 5 March 2025 the Secretary of State provided submissions and supported the appeal. The claimant had nothing to add on 24 April 2025.

The Secretary of State confirmed that there had been no award review action on the claimant’s current benefit award.

Neither party has sought an oral hearing and I do not consider that it is necessary to hold one in order to resolve the matter. Both parties have also consented to a decision without reasons under rule 40(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

The Secretary of State submitted that

“10.

The claimant’s representative has submitted that the First-tier Tribunal erred in its consideration of mobility activity 1. I agree.

11.

The claimant in her AR1 questionnaire reports that her conditions include anxiety disorder, agoraphobia, PTSD and recurrent depressive disorder (page 188). In respect of mobility activity 1, the claimant states she is unable to use public transport due to previous attacks and uses a taxi when she needs to leave the house. She also states she requires the support of her friend when going on a journey (page 195). Her Consultant Psychiatrist reports that the claimant’s “severe social anxiety, agoraphobia and PTSD symptoms (emotional dysregulation, avoidant behaviours and distrust), limits her ability to venture out (leading to her becoming housebound)” (page 202).

12.

The Health Professional notes that the claimant:

“Hardly leaves the house. Doesn't go out weekly. Only goes out if she has to go to her GPs, to get her prescription or if she needs to get something from the shop. These are not long journeys. When she has to go out, even before leaving the house, it takes her ages to get herself to leave and she doesn't always manage to leave. Struggles to breath, shakes, sweats excessively, feels sick and has even urinated herself. Can't go out at busy times. Is scared and worried about being outside by herself. Gets flashbacks of things that happened to her in her past. Has tried to go to her GPs, or out for a walk, but has had to turn back due to distress. Struggles to even go in her garden. Feels like she needs someone with her to make her feel safer, but there is no one who can go with her. States her support worker didn't go out with her. If she had to go somewhere unfamiliar, she just wouldn't go as she has to be near her house as this is her safe zone. Would not go on public transport. Doesn't want to even think about it. It makes her scared and worried.” (page 207).

13.

The claimant’s social worker further reports that the claimant “will often contact services or a friend for help when leaving the house and whilst outside as well as on her return” (page 237).

14.

The First-tier Tribunal determined that the claimant satisfied mobility descriptor 1e and not 1f on the basis that for the majority of the time the claimant was unable to leave the house because of her agoraphobia (paragraph 25 of the statement of reasons).

15.

In accordance with MH v SSWP [2016] UKUT 0531 (AAC), reported as [2018] AACR 12, where a person is unable to leave the house on the majority of days due to overwhelming psychological distress that person would satisfy mobility descriptor 1e and not 1f:

"41.

This was an issue first raised by Upper Tribunal Judge Rowland in Mr H’s case where the question arises whether the fact that he is unable to undertake any journey because it would cause overwhelming psychological distress and so scores 10 points under descriptor 1e implies that the overwhelming psychological distress from which he would suffer if he did undertake a journey is to be ignored for the purpose of descriptor 1f. Regulation 7(1)(b) has the general effect that, if a claimant satisfies two or more descriptors, the descriptor which scores the higher or highest number of points is the one to be applied. Nonetheless, it seems to us that descriptors 1e and 1f cannot sensibly each be read in isolation from each other and that the legislation contemplates that, where descriptor 1e is satisfied because the claimant needs to avoid overwhelming psychological distress by not undertaking any journey, the claimant will not undertake journeys so that the need for consideration of descriptor 1f due to such severe anxiety while on a journey will not arise. Otherwise, descriptor 1e would be otiose, since the implication of descriptor 1e being satisfied is that the claimant will suffer overwhelming distress if he or she goes out and so cannot, within the terms of regulation 4(2A), follow the route of a familiar journey without another person or, indeed, even with another person. We note that, in RC, the Judge considered it “extraordinary” that the permanently housebound should score fewer points than those who can sometimes go out, but, as was pointed out in a footnote in HL, the Government’s reasoning is to be found in paragraph 6.13 of the consultation response. We are satisfied that proper effect can be given to the legislation only if, in a case where descriptor 1e is satisfied, overwhelming psychological distress is not taken into account under descriptor 1f." (my emphasis)

16.

It is my submission that the First-tier Tribunal has erred in making inadequate findings of fact when reaching their decision that the claimant satisfies mobility descriptor 1e. The evidence within the appeal bundle, as noted above, indicates that the claimant does have difficulty leaving the house due to her mental health. However, it is clear she is making some journeys by taxi, for example to go to the shops, her GP and to pick up her prescriptions. It appears she is asking for the help of either services or a friend when going out, but it’s not clear how often she receives such support and whether the availability of others prevents her going out on the majority of days. I submit it was incumbent on the First-tier Tribunal to explore the claimant’s difficulties further to determine whether, if the claimant had the support of the aforementioned services or friend readily available, she would be able to go out on the majority of days or not.

17.

The Upper Tribunal have confirmed in DT v SSWP(UC) [2019] UKUT 268 (AAC) and in MM v SSWP (ESA) [2011] UKUT 334 (AAC) that the First-tier Tribunal must acknowledge explicitly that it has considered both whether the parties have consented to a decision being made without a hearing and that it can fairly decide the appeal without holding one, and to explain why.

18.

In the statement of reasons, the First-tier Tribunal have stated,

“17.

This appeal was a paper case, to be determined without oral evidence. The tribunal can consider appeals without a hearing where both parties consent or do not object to such an approach and the tribunal considers that it is able to do so (see The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 r.28(1)). Both parties have consented to this approach in this appeal. The tribunal was able to deal with the matter on the papers as it had ample written evidence before it (the hearing bundle extended to over 250 pages) and the issue before it was narrow. The tribunal could see little benefit in adjournment to allow for attendance. [The claimant] helpfully provided medical evidence in support of the appeal which the tribunal found determinative.” (Upper Tribunal bundle, page 28).

“23.

It is not in dispute that [the claimant] has agoraphobia. As is set out in the decision notice, “[The claimant] does not go out on the majority of days, as she is agoraphobic. The correct descriptor for this is 1e, for which she receives points already”. (Upper Tribunal bundle, page 29).

19.

The First-tier Tribunal further state “[The claimant] has well documented agoraphobia. At p.4 she confirms in her appeal form her struggles to go out.”... “The picture was clear – for the very large majority of the time, [the claimant] was unable to leave the house because of her agoraphobia. She therefore satisfied descriptor 1e and not 1f.” (Upper Tribunal bundle, page 29, paragraphs 24 & 25). In light of the evidence cited in my above submissions, the First-tier Tribunal has not implemented their inquisitorial function to investigate what would happen if the claimant had someone available to accompany her to go out. Would she be able to go out on the majority of days with that other person or would the effect of her mental health conditions prevent her from leaving the house on the majority of days?

20.

Taking into account the case law and statement of reasons paragraphs mentioned above, the statement of reasons fails to explain why it considered that paragraph (1)(b) (of Rule 27 FtT Rules 2008) was satisfied so that no oral hearing was necessary, a mere reference to the overriding objective in rule 2 is not sufficient if obvious factors pointed the other way. No reasoning has been provided to clarify why the First-tier Tribunal determined it fair and just to decide the appeal on the papers alone. I therefore respectfully submit that the First-tier Tribunal have erred in law by failing to explain why it decided the appeal on the papers.   

21.

In light of my above submissions, I invite the Upper Tribunal Judge to set aside the decision of the First-tier Tribunal and remit the appeal for a rehearing before a freshly constituted First-tier Tribunal panel.”

For the reasons identified by the Secretary of State, I am satisfied that there was the Tribunal made errors of law which were material to the decision and for that reason the decision of the Tribunal should be set aside.

In the circumstances I do not need to consider whether the Tribunal made any other errors of law.

I am satisfied that the resolution of any other grounds of appeal will fall to be subsumed at the hearing before the new tribunal.

I therefore allow the appeal and set aside the decision of the Tribunal. I remit the matter to a new tribunal which should conduct a complete rehearing of the matter.

I must stress that the fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication as to the outcome of the rehearing by the new tribunal. It is quite possible that the new tribunal may end up effectively coming to the same decision as the previous Tribunal, namely that the claimant was entitled to the daily living component of personal independence payment at the enhanced rate and the mobility component at the standard rate from and including 17 March 2023 to and including 13 February 2026.

Alternatively, it is possible that the new tribunal might take a different view of the facts from that of the Tribunal and reach the conclusion that in fact the claimant was entitled to both components of personal independence payment at the enhanced rate from and including 17 March 2023 to and including 13 February 2026.

It is for the new tribunal itself to decide which of these alternative options open to it applies, depending on the view it takes of the facts and providing it makes proper findings of fact and gives adequate reasons. It would not be appropriate for me to express any opinion either way on the merits of the appeal.

The following directions apply to the hearing before the new tribunal:

The new tribunal should not involve any member who was a member of the Tribunal involved in the hearing of the appeal.

The new tribunal must considerand make relevant findings as to whether or not the claimant satisfied the criteria to be awarded the enhanced rate of the daily living component and the mobility component of personal independence payment from and including 17 March 2023 to and including 13 February 2026. In so doing the new tribunal should, in particular, have regard to the claimant’s grounds of appeal dated 25 April 2024 and the submissions of the Secretary of State dated 5 March 2025.