KE (by DE) v Secretary of State for Work and Pensions

This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 24 June 2024.

The First-tier Tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the First-tier Tribunal's discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

In reconsidering the issues raised by the appeal the First-tier Tribunal must not take account of circumstances which were not obtaining at the date of the original decision of the Secretary of State under appeal. Later evidence is admissible provided it relates to the time of the decision.

These Directions may be supplemented by later directions by a Tribunal Judge or Registrar in the Social Entitlement Chamber of the First-tier Tribunal.

This case concerns the entitlement of the claimant, who is a child, to disability living allowance (“DLA”). The claimant has a diagnosis of autism and associated behavioural and communication difficulties. The appeal was brought on his behalf by his appointee, who is his father.

Permission to appeal was granted by Upper Tribunal Judge Wikeley and the appeal is supported by the respondent (the Secretary of State). Neither party has requested an oral hearing of the appeal to the Upper Tribunal, and I consider that I can properly determine the case on the papers.

So far as relevant to the present case, the main conditions of entitlement to DLA, as set out in sections 72 and 73 of the Social Security Contributions and Benefits Act 1992 (the “1992 Act”), are as follows:

“The care component

72(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which—

(a)

he is so severely disabled physically or mentally that—

(i)

he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of periods); or

(ii)

he cannot prepare a cooked main meal for himself if he has the ingredients; or

(b)

he is so severely disabled physically or mentally that, by day, he requires from another person—

(i)

frequent attention throughout the day in connection with his bodily functions; or

(ii)

continual supervision throughout the day in order to avoid substantial danger to himself or others; or

(c)

he is so severely disabled physically or mentally that, at night,—

(i)

he requires from another person prolonged or repeated attention in connection with his bodily functions; or

(ii)

in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

(1A)

In its application to a person in relation to so much of a period as falls before the day on which he reaches the age of 16, subsection (1) has effect subject to the following modifications—

(a)

the condition mentioned in subsection (1)(a)(ii) shall not apply, and

(b)

none of the other conditions mentioned in subsection (1) shall be taken to be satisfied unless—

(i)

he has requirements of a description mentioned in the condition substantially in excess of the normal requirements of persons of his age, or

(ii)

he has substantial requirements of such a description which younger persons in normal physical and mental health may also have but which persons of his age and in normal physical and mental health would not have.

(4)

The weekly rate of the care component payable to a person for each week in the period for which he is awarded that component shall be—

(a)

the highest rate, if he falls within subsection (2) above by virtue of having satisfied or being likely to satisfy both the conditions mentioned in subsection (1)(b) and (c) above throughout both the period mentioned in paragraph (a) of subsection (2) above and that mentioned in paragraph (b) of that subsection;

(b)

the middle rate, if he falls within that subsection by virtue of having satisfied or being likely to satisfy one or other of those conditions throughout both those periods; and

(c)

the lowest rate in any other case.

The mobility component

73(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which—

(a)

he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so; or

(ab)

[omitted]; or

(b)

[omitted]; or

(c)

he falls within subsection (3) below; or

(d)

he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.

(1A)

In subsection (1) above “the relevant age” means—

(a)

in relation to the conditions mentioned in paragraph (a), (ab), (b) or (c) of that subsection, the age of 3;

(b)

in relation to the conditions mentioned in paragraph (d) of that subsection, the age of 5.

(3)

A person falls within this subsection if—

(a)

he is severely mentally impaired; and

(b)

he displays severe behavioural problems; and

(c)

he satisfies both the conditions mentioned in section 72(1)(b) and (c) above.

(4A)

In its application to a person in relation to so much of a period as falls before the day on which he reaches the age of 16, subsection (1) has effect subject to the modification that the condition mentioned in paragraph (d) shall not be taken to be satisfied unless—

(a)

he requires substantially more guidance or supervision from another person than persons of his age in normal physical and mental health would require, or

(b)

persons of his age in normal physical and mental health would not require such guidance or supervision.

(11)

The weekly rate of the mobility component payable to a person for each week in the period for which he is awarded that component shall be—

(a)

the higher rate, if he falls within subsection (9) above by virtue of having satisfied or being likely to satisfy one or other of the conditions mentioned in subsection (1)(a), (ab), (b) and (c) above throughout both the period mentioned in paragraph (a) of subsection (9) above and that mentioned in paragraph (b) of that subsection; and

(b)

the lower rate in any other case.”

Regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991 makes further provision regarding the conditions of entitlement to the mobility component, including the following:

“Entitlement to the mobility component

12(5) A person falls within subsection (3)(a) of section 73 of the Act (severely mentally impaired) if he suffers from a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning.

(6)

A person falls within subsection (3)(b) of section 73 of the Act (severe behavioural problems) if he exhibits disruptive behaviour which–

(a)

is extreme,

(b)

regularly requires another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or damage to property, and

(c)

is so unpredictable that he requires another person to be present and watching over him whenever he is awake.”

The claim for DLA was originally submitted on 21 January 2022 by the claimant’s mother, but a further claim form with additional information was submitted by the claimant’s father (the appointee) on 31 March 2022. On 20 April 2022 a decision maker on behalf of the respondent decided that the claimant was entitled to the middle rate of the care component from 21 January 2022 but was not entitled to either rate of the mobility component. The claimant was not eligible for the lower rate of the mobility component as he was under the age of 5 at that time. The appointee requested mandatory reconsideration on 16 May 2022.

There is some confusion in the papers about the outcome of the mandatory reconsideration. The respondent’s response to the appeal to the First-tier Tribunal states (under “Facts of the case”, at paragraph 5.6): “The decision was reconsidered but not revised on 21/06/2022”. Similarly, the first page of the letter notifying the appointee of the outcome of the mandatory reconsideration (dated 21 June 2022, page 145) states: “We have taken into account all the information available and we have not changed the decision”. However, towards the end of the letter it is stated:

“The decision has changed following this mandatory reconsideration.

[The claimant] is entitled to the middle rate of the care component and with effect from the 16/12/2022 the lower rate of the mobility component of Disability Living Allowance to 15/12/2029.”

The appeal, which the appointee submitted on 18 July 2022 (page 3 – 5), was therefore against the decision of 20 April 2022 as revised on 21 June 2022. As such it related both to the period from 21 January 2022 to 15 December 2022 (for which the claimant had been awarded the middle rate of the care component but no mobility component) and the period from 16 December 2022, when the claimant had been awarded the middle rate of the care component and the lower rate of the mobility component.

Between January 2023 and June 2024 the First-tier Tribunal issued case management directions seeking to resolve a numer of administrative issues concerning the appointee’s appointment to act on behalf of the claimant, and the contents of the appeal bundle. The appeal was finally heard on 24 June 2024 at an oral hearing which the appointee attended in person, represented by his step father, and at which the respondent was represented. The Tribunal dismissed the appeal and upheld the respondent’s decision of 20 April 2022.

The statement of reasons for the Tribunal’s decision was issued on 19 November 2024, and the First-tier Tribunal refused the appointee permission to appeal on 26 March 2025 (issued 1 April 2025). The application was renewed to the Upper Tribunal on 29 April 2025 and Upper Tribunal Judge Wikeley granted permission to appeal on 30 May 2025.

With regard to the claimant’s entitlement to the care component of DLA, the First-tier Tribunal held that he was not entitled to the highest rate because the attention or supervision he required at night was not substantially in excess of that required by a child of the same age who was in normal physical and mental health. The Tribunal accepted that the claimant experienced night time terrors, but noted that this was common among young children.

With regard to the mobility component, the Tribunal noted that the claimant could not qualify for the higher rate on the basis of ‘severe mental impairment’ under section 73(3) of the 1992 Act because the Tribunal had held that he did not meet the conditions of entitlement for the highest rate of the care component. The Tribunal also held that the claimant did not meet the conditions for the higher rate of the mobility component under section 73(1)(a) because he did not suffer from a physical disablement that resulted in him being either unable to walk or virtually unable to do so. The Tribunal referred to a number of pieces of evidence in the papers which it considered indicated the claimant was able to walk, and further commented (at paragraph 46): “None of the specialist reports or educational reports refer to [the claimant] persistently refusing to walk or being precluded from school outings due to a refusal to walk”. It concluded (at paragraph 48) “Based upon the above the Tribunal found, on the balance of probability [the claimant] did not, most of the time, refuse to walk”.

The grounds of appeal are set out in a letter from the appointee’s representative dated 9 December 2024, applying to the First-tier Tribunal for permission to appeal. The grounds focus on the Tribunal’s reasons in relation to the mobility component, however, the representative confirms that this should not be taken to indicate an acceptance of the Tribunal’s decision in relation to the care component.

The grounds of appeal submit that the First-tier Tribunal’s reasons for its decision were inadequate, particularly with respect to its conclusion that the claimant was not virtually unable to walk. The arguments are clearly expressed and I will set them out in full:

“Para 42 states that, “[the claimant] gets a lift to school from his step grandfather he is walked….”

This statement doesn’t make grammatical sense. Perhaps there is a typing error. If the assertion is [the claimant] is given a lift or walks to school, then there is no evidential basis identified for the conclusion that he walks to school. In other words the tribunal have not given adequate reasons why it came to the conclusion it (seems to have) come to around walking to school.

Para 43 states that, “if he is taken out at nursery he has 2 staff with him. He walks”

The Tribunal have not stated what evidence they used to make this finding. There was no evidence before the appeal that he was taken out of nursery by nursery staff and “walked” by 2 nursery staff. For the record, he may have been walked within the nursery, but this was a matter of only a few yards. So, again, the reasons are also inadequate on this point.

Paras 44 and 45 state, “[the appointee] refers in writing to having to collect [the claimant] first then walk to the other side of the school to pick up his other child. This can take longer if [the claimant] has a tantrum.

This indicates that whilst [the claimant] may have tantrums most of the time he is able to walk to the other side of the school without refusing to walk.”

This presumably refers to a statement which is on page 148 of the appeal documents where [the claimant’s] father describes picking him up from school. But, at no point does the father’s statement say that [the claimant] himself walks. For the record, he was picked up and carried on his father’s shoulders to go across to the other side of the school to collect his sister. This is another example of a ‘factual finding’ that did not have any evidence to support it. As such, although this issue is around ‘facts’ (which are up to the tribunal to decide and are not appealable to the Upper Tribunal) there must still be a basis for such findings. And this basis needs to be identified by the Tribunal in the Statement of Reasons. So yet again, the reasons in the Statement of Reasons are inadequate.

No Mention Of Key Evidence

Para 46 states, “None of the specialist reports or educational reports refer to [the claimant] persistently refusing to walk or being precluded from school outings due to a refusal to walk.”

The clearest error of law is around this issue. A letter of evidence from [the claimant’s] social worker dated 24 March 2023 appears at addition U pages 4 and 5 of the appeal documents.

This clearly states that, “it has been noted during care team meetings and through discussion with parents that [the claimant] is refusing to walk outside.”

This is arguably one of the most important documents in this appeal. It was prepared especially for the case by a professional involved in [the claimant’s] care, who knew him and his family well, and knew that the case concerned the appellant at the date of the decision under appeal. It contained clear support for the appellant’s case. Yet the Tribunal has not explained why they have rejected this evidence, or if they have even considered it. There is no mention of it at all in the Statement of Reasons. Considerinng the nature of this document there is a clear error of law here.”

In granting permission to appeal on 30 May 2025, Upper Tribunal Judge Wikeley commented that “it may be difficult to reconcile SoR para 46 with the social worker’s letter dated 24.03.2023 (Addition U pp.4-5). The Secretary of State’s response should review the FTT’s treatment of night-time care needs as well as day-time mobility issues.”

In a submission dated 8 July 2025 the respondent’s representative supports the appeal and invites the Upper Tribunal to set aside the First-tier Tribunal’s decision and remit the appeal for rehearing by a differently constituted First-tier Tribunal panel. She submits “that the FtT has erred in law in both its fact finding and duty to provide adequate reasons for its decision”.

As well as confirming her agreement with the appointee’s arguments regarding the First-tier Tribunal’s reasons and findings of fact in relation to the mobility component, the respondent’s representative submits that the Tribunal erred in its reasons in relation to the claimant’s night time care needs. With reference to paragraphs 16, 17 and 34 to 37 of the statement of reasons, she comments:

“4.6

The FtT evidently accepted that the claimant suffered from night terrors and awoke at night with these. Its sole reasoning for finding that this did not meet the statutory criteria for night-time care needs was that many young children suffer from night terrors, and that therefore his care could not be said to be substantially in excess of what another child of the same age without such difficulties [or] disabilities might require. I would respectfully submit that this conclusion seems somewhat reductive and that here, the FtT have erred in law by failing to exercise its inquisitorial function. While many young children wake at night with night terrors, did the FtT find that the claimant’s diagnosis of ASD meant that the resettling process took longer for the claimant than it might for other children of the same age without such difficulties? Certainly, I would submit that the multiple references throughout the FtT appeal bundle to the fact that the claimant could take a long time to resettle after a meltdown should have prompted the FtT to exercise its inquisitorial function – and use the opportunity of the oral hearing – to ask such questions, but it appears it did not. Did the FtT find that the claimant’s speech, language and communication needs rendered the resettling process more protracted or difficult? Respectfully, I submit that it is difficult for the appointee to know, as the FtT do not appear to have asked these questions or elaborate on how the claimant might have needed resettling after waking from a night terror. Here, I respectfully submit that it has erred materially in law.”

The respondent’s representative also provides the following further information:

“For completeness the UT Judge will wish to know that following a reconsideration or supersession the claimant was awarded the middle rate care component and the lower rate mobility component for the period 16/12/2022 to 26/09/2024. The claimant was then awarded the lower rate mobility component and higher rate care component for the period 27/09/2024 to 15/12/2029.”

On 20 August 2025 the appointee indicated that he did not wish to make any further observations.

Judge Wikeley gave further case manage directions on 22 September 2025, noting that there was a lack of clarity in the respondent’s submission regarding the period of entitement within scope of the appeal, given that it referred to a subsequent decision awarding the claimant “the middle rate care component and the lower rate mobility component for the period 16/12/2022 to 26/09/2024” . The Judge noted that the issue might be important to the First-tier Tribunal rehearing of the appeal, as in principle it could not consider periods which were the subject of entitlement decisions which applied subsequent to the present appeal (referring to SSWP v TR (PIP) [2025] UKUT 1 (AAC)). He therefore directed the parties to make further submissions on this point.

A submission made on behalf of the respondent on 22 October 2025 incorrectly stated that the decision to award the claimant the lower rate of the mobility component from 16 December 2022 was a decision on a renewal claim, and that “the earliest date from which the claimant would be eligible to receive either the highest rate of the care component, or the higher rate of the mobility component would be from the date of the renewal claim on 16/12/2022”.

The appointee made a submission on 5 December 2025 which identified the inaccuracy in the respondent’s submission and argued that the ‘closed period’ which was within scope of the appeal ran from 21 January 2022 until 26 September 2024. The appointee confirmed that a mandatory reconsideration had been requested of the supersession decision which awarded the claimant the higher rate of the care component and the lower rate of the mobility component from 27 September 2024, and the respondent’s decision was awaited.

In a further submission dated 14 January 2026, the respondent’s representative confirmed that the submission of 22 October 2025 had been incorrect and that the period of entitlement within scope of the appeal was 21 January 2022 to 26 September 2024.

The First-tier Tribunal erred in law by giving inadequate reasons for its decision and failing to address a potentially important piece of evidence, and I am therefore setting its decision aside. In relation to the mobility component, the Tribunal erred in the respects identified in the claimant’s grounds of appeal, and supported in the respondent’s submission of 8 July 2025 at paragraphs 4.3 to 4.4 and 4.7 to 4.9. In relation to the care component, the First-tier Tribunal erred as identified at paragraphs 4.5 to 4.6 of the respondent’s submission.

I have concluded that it would not be appropriate for me remake the decision, as facts need to be found and the First-tier Tribunal, as an expert fact-finding body with the benefit of specialist members, is in a better position to undertake that task. The appeal is therefore remitted to the First-tier Tribunal.