JMcC v The Secretary of State for Work and Pensions

This case is remitted to the First-tier Tribunal (“FtT”) for reconsideration at an oral hearing.

It must be heard by an entirely fresh panel.

The FtT must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the FtT’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. While the FtT will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.

The new FtT is not bound by the decision of the previous FtT. Depending on the findings of fact it makes, the new FtT may reach the same or a different conclusion to the previous FtT. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the FtT to which this case is remitted.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the FtT.

Neither party requests an oral hearing. I am satisfied that I can deal with the case fairly on the papers, and that it is in the interests of justice that I do so.

This appeal concerns the appellant’s claim for a personal independence payment or PIP. By a decision dated 12 June 2024 the First tier Tribunal “FtT” determined that she was not eligible for either component of PIP. She now seeks to appeal that decision

On 11 March 2025 I gave permission to appeal on the following grounds:

This ground related to a decision to continue with the appeal in the absence of the appellant, which I felt might have been contrary to rule 31 and rule 2 of the FtT rules,

I agreed it was arguable that this descriptor had been applied too narrowly, in light of DV v SSWP (PIP) [2017] UKUT 0244 (AAC)

I gave permission on the basis that there may have been inadequate findings or reasoning as regards each of these activities, and with a specific concern relating to questions of frequency of attacks of Raynaud’s disease, and consideration of regulation 4(2A) ((whether an activity can be carried out safely; to an acceptable standard; repeatedly; and within a reasonable time period, as it applies to difficulties caused by that condition.

The respondent supports the appeal.

As regards the question of the adjournment, she argues that the FtT appear to have applied a “compelling reason” test when deciding whether to continue with the hearing under rule 31, that this is not what rule 31 requires and that it sets the bar too high. She adds:

She also feels that the overriding objective appears not to have been considered and that it is unclear why the FtT concluded the claimant would be unlikely to attend a rescheduled hearing.

As regards engaging face to face, she says:

She adds that there were a number of strands of evidence that related to possible poor mental health and difficulty in engaging with unfamiliar people and the FtT should have exercised their inquisitorial function and made findings as to whether the claimant requires prompting or social support to engage with people face-to-face generally, in accordance with the provisions of regulation 4(2A) of the PIP Regs 2013 and the guidance provided in the Supreme Court decision SSWP v MM [2019] UKSC 34

So far as grounds four and five are concerned, she sets out the evidence before the FtT relating to Reynaud’s disease, and submits that the FtT made only limited findings as to the impact of that condition on daily living activities one and six. She notes that while there is a suggestion attacks can be limited or mitigated by the appellant running her hands under warm water, the FtT fail to make findings as to how effective this is or the effect of residual weakness.

The appellant had nothing to add to the respondent’s submissions

I agree with the respondent’s observations and find that the appeal succeeds on all grounds.

So far as the question of an adjournment where a party does not attend the hearing is concerned, it is highly advisable that an FtT refers specifically to rules 31 and 2, and sets out in its decision how those rules have been applied to its decision. The failure to do so in this case, and the reference to there being no compelling reason to adjourn, leads me to the conclusion that the right test was not applied.

I stress that provided it does apply the right test an FtT’s decision as to whether or not to adjourn would be given very considerable respect on appeal. It would be a decision relating to the FtT’s conduct of its own procedure, not to be lightly interfered with. But that is not the case here.

Given that it is known that there have been difficulties with the appellant participating in hearings in the past I would suggest it would be wise for the FtT to identify what the barriers are and to consider in advance how that participation can be facilitated in future, and to make appropriate case management directions However this is a matter for the FtT.

I note also what the Respondent has had to say about the benefits of an oral hearing. I agree with what she says, and add that engagement by a party with the tribunal process is a benefit in and of itself, even if hypothetically it was known in advance that they will not add to the evidence before the tribunal (which is not so here). A party’s participation in proceedings where possible is part of what makes those proceedings socially legitimate. These are matters an FtT should consider when it asks itself if it is in the interests of justice to proceed with the hearing.

As regards the assessment of the ability to engage face to fact I have little to add to what the respondent says. There is a significant amount of evidence on this question in the ftT papers and it all needs to be considered holistically, and a careful assessment made and recorded.

In DV the Upper Tribunal said this:

It is vital in answering this question that an FtT considers interacting face to face with both familiar and unfamiliar people, and in range of different (but plausible) situations. Visiting a good friend for a coffee in their home is not the same as entering a crowded coffee shop to find and meet someone you do not know well. Care and reasoning is needed in extrapolating from “easier” scenarios to more demanding ones.

So far as one and six activities and Raynauds disease are concerned, again I have little to add to the respondent’s remarks. The FtT has a considerable amount of material on this issue, (although it may nevertheless feel it needs more information from the appellant), but what was lacking and what needs to be supplied is a careful and holistic evaluation of what all of that material may mean for the ability to carry out daily activities. For example the respondent points out that even after an attack has passed, it may be that there is still weakness such that a task such as dressing, with the manipulation of buttons and so forth, or cooking, with the need to chop food and move pans, could not be carried out. And as I said in giving permission to appeal, if it is right that an attack can be shortened by holding the hands under a warm tap, consideration should still be given to whether the time spent doing that means that whatever activity was in contemplation cannot be carried out within a reasonable time period.

Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I therefore set the FtT decision aside and remit the case to be reconsidered by a freshly constituted panel.