Appeal No. UA-2024-001721-PIP
Between:
SA
Appellant
- v -
SECRETARY OF STATE FOR WORK AND PENSIONS
Respondent
Before: Upper Tribunal Judge Stout
Decided on consideration of the papers
Representation:
Appellant: Central England Law Centre
Respondent: Clare Keates, DMA Leeds
On appeal from:
Tribunal: First-Tier Tribunal (Social Entitlement Chamber)
Tribunal Case No: SC015/23/00551
Digital Case No.: 1682-7223-8750-9906
Tribunal Venue: Coventry (in person)
Decision Date: 21 June 2024
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.
DIRECTIONS
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 21 June 2024.
The appellant is reminded that the new First-tier Tribunal can only consider the appeal by reference to their health and other circumstances as they were at the date of the original decision by the Secretary of State under appeal (namely 28 January 2023).
If the appellant has any further written evidence to put before the First-tier Tribunal relating to that period, including any further medical evidence, this should be sent to the relevant HMCTS regional tribunal office within one month of the issue of this decision.
The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.
These Directions may be supplemented by later directions by a Tribunal Caseworker, Tribunal Registrar or Judge in the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
Introduction
The appellant appeals against the First-tier Tribunal’s decision of 21 June 2024 refusing the appellant’s appeal against the decision of the Secretary of State of 28 January 2023 that the appellant was not entitled to Personal Independence Payment (PIP) under Part 4 of the Welfare Reform Act 2012 (WRA 2012) and The Social Security (Personal Independence Payment) Regulations 2013 (SI 2013/377) (the PIP Regulations) from that date. The decision superseded a previous decision dated 12 February 2021 which had awarded her the standard daily living component of PIP from 2 March 2020 to 28 June 2023.
The Secretary of State in the previous decision dated 12 February 2021 had assessed the appellant as scoring 11 qualifying points: 2 points for preparing food, 1 point for managing therapy, 2 points for washing/bathing, 2 points for dressing/undressing, 2 points for engaging with others and 2 points for budgeting decisions. No award was made for the mobility component.
The supersession decision of 28 January 2023, made following a telephone assessment by a healthcare practitioner (and confirmed on Mandatory Reconsideration), assessed the appellant as scoring zero points.
The First-tier Tribunal on this appeal decided that the appellant scored 2 points for communicating and 4 points for engaging with other people face to face. This was insufficient for an award of PIP so the Secretary of State’s decision was confirmed.
The First-tier Tribunal’s Statement of Reasons (SoR) was issued on 30 July 2024 and permission to appeal was refused by the First-tier Tribunal in a decision issued on 7 November 2024 on the basis that the appeal was out of time. The appellant filed the notice of appeal to the Upper Tribunal on 6 December 2024. I extended time and granted permission to appeal in a notice sent to the parties on 28 January 2025.
By submissions received on 16 February 2025, the respondent indicated that the appeal is supported. The appellant confirmed in submissions received on 28 May 2025 that she had no further observations to make. Both parties consent to the appeal being dealt with on papers without a hearing. I am satisfied that it is appropriate and in accordance with the overriding objective to take that course given the lack of dispute between the parties and the nature of the issues.
The grounds of appeal
The grounds of appeal prepared by the appellant’s representative included the following, so far as material:-
The Tribunal has erred in failing to identify the grounds for the supersession, which should be an error of law.
There are two most common reasons identified for a supersession.
Regulation 23(1)(a) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment Support Allowance (Decisions and Appeals) Regulations 2013 states:
The Secretary of State may supersede a decision in respect of which—
(a)there has been a relevant change of circumstances since the decision to be superseded had effect or, in the case of an advance award under regulation 32, 33 or 34 of the Claims and Payments Regulations 2013, since it was made.”
Regulation 26 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment Support Allowance (Decisions and Appeals) Regulations 2013 states:
“(a)received medical evidence from a healthcare professional or other person approved by the Secretary of State”
In the case of [2016] UKUT 481 (AAC) Judge Wikeley stated at paragraph 19:
“In my view an unduly narrow focus on the jurisdictional niceties of reliance upon regulation 26 loses sight of the fundamental and much wider principle of justice, namely that a party (and, in particular, a losing party) is entitled to adequate reasons for the tribunal’s decision. It is important to bear in mind the Appellant’s perspective. In July 2014 he was awarded the enhanced rate of the daily living component of PIP on the basis of a score of 16 points, such award to run for a further 2 years. However, a little over a year later, applying precisely the same rules, he scored 0 points and his PIP award was terminated. In those circumstances it is entirely understandable that the [claimant] may well be bemused.”
At no point does the Tribunal make findings as to (i) the ground upon which the supersession decision was made and (ii) the date from which it properly took effect.
Activity 1 – Preparing food
The tribunal has not addressed the issue of back pain and an aid in this regard and has not adequately explained why the appellant was not able to prepare/cook a simple main meal from scratch.
At no point did the tribunal specifically ask questions relating to the appellant’s ability to prepare and cook a meal during the appeal hearing.
Activity 4 - Washing and bathing
The reasons provided by the tribunal are not adequate in relation to activity 4..
The tribunal states at paragraph 69 of the statement of reasons:
“She presents as clean, neatly groomed and dressed appropriately at the hearing. Her reported intermittent loss of motivation is not corroborated regarding self-care specifically. Pain symptoms appear controlled.”
Unfortunatey we take a dim view of the tribunals reasonings. The Tribunal makes references to the appellant’s appearance after the date of the decision. Also there is the issue of the Tribunal failing to put this to the appellant which in turn means there is no real consideration of the affect of her mental health to carry out this activity. For example it could have been the appellant was prompted on the day of the hearing.
Activity 6 – Dressing and undressing
There was no proper find of the facts by the Tribunal. In similar circumstances to activity 4 there is a reliance by the Tribunal on how SA was present on the date of the hearing as opposed to the date of the decision. The Tribunal remarks at paragraph 75:
“The Appellant chose appropriate clothing and showed no signs of discomfort removing garments at the hearing. Her reported intermittent arm and back pain do not appear constantly debilitating. While her motivation fluctuates, sufficient evidence this regularly prevents dressing is absent.”
Remarkably this is the only reason given as to why SA can complete this activity. …
The grant of permission
I granted permission limited to four grounds as follows:-
The grounds of appeal in this case have been clearly set out by the appellant’s representative and I consider that some of those grounds are arguable. Given that the appellant only needs a further 2 points to qualify for an award of the standard component of PIP for daily living activities, I consider these arguable grounds may be material errors in the decision under appeal. I give the appellant’s grounds numbers for ease of reference.
Ground 1 – failure to provide reasons for the supersession – In the light of [2016] UKUT 481 (AAC), especially [15]-[16] of that case, this ground is arguable.
Ground 2 – Activity 1 (preparing food) – This is arguable for the reasons set out. The Tribunal has not explained why it rejected the appellant’s representatives argument that she required an aid given her back pain.
Ground 3 – Activity 4 (washing and bathing) – This is arguable for the reasons given. In particular, it is arguable that the Tribunal erred in law by failing to focus as required by section 12(8)(b) SSA 1998 on the claimant’s circumstances as they were as at the date of the decision on 28 January 2023 rather than as at the date of the hearing in June 2024.
Ground 4 – Activity 6 (dressing and undressing) – This is arguable for the reasons given.
The Secretary of State’s response
In material part, the Secretary of State’s response to the appeal was as follows:-
The FtT noted at paragraph 47 of the SOR that:
“The Tribunal finds the Appellant, [……], has established diagnoses of a perforated left eardrum, anxiety, depression and PTSD based on her medical records and the GP report. Her account of associated symptoms like ear discharge, hearing loss, low mood and panic attacks is generally consistent and credible. We accept these health conditions result in some functional limitations for the Appellant day-to-day.”
It is my submission that the Tribunal 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 appears limited in their reasoning. It seems that what the FtT has provided in relation to the descriptors claimed for, appears to be no more than a rehearsal of evidence and a conclusion without an explanation.
…
In dealing with the UT Judge’s Permission to Appeal (PTA) at point 17 (repeated above). In SC v SSWP (PIP) [2019] UKUT 165 (AAC), the UT state that a First-tier Tribunal should ask if there is a basis in law for DWP’s supersession decision and if so, ask whether the DWP has provided adequate reasons to explain and sustain the decision.
In the SOR at paragraph 8 the FtT states that: “The appeal therefore concerned the Respondent's decision to end the Appellant's existing award of the daily living component of PIP. My role as Judge was to consider all evidence afresh and determine if she continued to satisfy the entitlement criteria for this element of PIP at the level previously awarded.”
The FtT have not assessed whether there was a basis of law for the supersession decision or whether DWP had provided adequate reasons for the decision. If the FtT have assessed this, they have failed to mention this in the SOR. As such, I respectfully submit that the Tribunal have erred in law by failing to address the supersession decision.
In dealing with the UT Judge’s PTA, at point 18 (repeated above) in relation to daily living activity 1 – Preparing food. I note the FtT state the following at paragraph’s 55 to 59 of the SOR:
55.“The Appellant stated she depends on her family to prepare meals due to lack of motivation, forgetfulness when cooking and occasional left arm pain. Her representative argued she requires prompting or supervision based on back pain when standing and intermittent arm restrictions.
The Respondent contends the Appellant can prepare food unaided based on the healthcare professional's recent assessment where no issues were reported. They argue her retained independence in other daily tasks indicates she can manage meal preparation.
The Tribunal finds limited evidence that difficulties preparing food persist continuously or reliably on most days. The Appellant can attend college, converse normally, recall recent events and perform self- care tasks without obvious cognitive deficits. Her intermittent arm pain only arises during occasional ear infections. While accepting the Appellant faced some anxiety and some low motivation, we do not find sufficient proof these limit simple meal preparation.
Regulation 4(2) requires activities be completed safely, repeatedly, in a reasonable time period and to an acceptable standard. The evidence did not establish preparing food could not be performed to this standard on most days.
While recognizing the Appellant's reported difficulties, the Tribunal concludes the overall evidence is insufficient to demonstrate functional restrictions preparing simple meals meets the PIP disability threshold on most days under Regulation 7. We therefore do not award any points under Activity 1.”
Despite making a finding in respect of the claimant’s reported difficulties with preparing food the FtT does not appear to adequately explain whether it had considered any further evidence in order to determine if she can prepare food in accordance with Regulation 4(2A) of The Social Security (Personal Independence Payment) Regulations 2013 (“regulation 4(2A)”).
I note at page Addition C8 that the submission from the claimant’s representative states that:
“The Appellant also suffers with back pain, but is able to stand for up to 15 minutes before needing to be seated to relieve the pain. The appellant also gets intermittent pain in her left arm which is restrictive insofar as peeling and chopping is concerned. An MRI dated the 06/07/2019 of her spine and lumbar as per p28 of her medical records confirmed a ‘small disc bulge’ at L4/5’.
We believe the appellant should be awarded 2 points under descriptor 2(b) or (c) of schedule 1, part 2 of the Personal Independence Payment Regulations 2013 [‘PIP regs’].”
Whilst the FtT state at paragraph 55 of the SOR (repeated above) that: “…Her representative argued she requires prompting or supervision based on back pain when standing and intermittent arm restrictions.”. However, the FtT do not engage with the claimant’s representative’s evidence (repeated above), apart from stating at paragraph 23b of the SOR the following:
“The Appellant has reported several health issues impacting her functioning and we took note of her reported symptoms alongside utilising the specialist medical knowledge of the Tribunal to evaluate what each condition means in general:
b Backpain
i The Appellant reports lower back pain aggravated by bending and cleaning which restricts her functioning. Non-specific back pain is very common and usually improves in a few weeks or months without specific treatment. It can stem from sprain or strain of the muscles/ligaments, poor posture, arthritis, a minor injury, or other medical conditions. Management focuses on remaining active, pain relief medication, physiotherapy exercises, and lifestyle changes.”
I also note that the Capita report dated 10/05/2023 under the heading Disabling conditions, states “see print out”, the print out at page 168 reports that during a consultation on the 09/03/2023 the following problems are reported: “Depression, Mental health review, perforation of tympanic membrane, mechanical low back pain(new) has intermittent back pain, MRI in the past showed small disc bulge L4/5, review of medication.”
Whilst the FtT is entitled to give weight to whatever evidence it choses, it appears when reading the SOR that they have placed inconsistent weight to certain pieces of evidence. Given that there is medical evidence that supports the claimant’s representative’s assertions, regarding the back pain and arm pain, it is possible that the difficulties the claimant faces as a result of these, and her perforated left eardrum, anxiety, depression and PTSD may have resulted in her feeling that she is not able to prepare food. This is a possibility that the FtT should have considered as part of their inquisitorial duty, but evidently, did not. Therefore, I submit that the FtT have erred in law in failing to make adequate findings of fact in relation to daily living activity 1.
In addressing point 19 of the UT Judges PTA, regarding daily living activity 4 – Washing and bathing, the FtT noted at paragraph 69 of the SOR that,
69.“The Tribunal finds limited reliable evidence that the Appellant cannot wash or bathe without prompts on most days. She presents as clean, neatly groomed and dressed appropriately at the hearing. Her reported intermittent loss of motivation is not corroborated regarding self-care specifically. Pain symptoms appear controlled.”
However, as helpfully noted by UT Judge Stout I respectfully submit that the FtT’s observations of the claimant that “…She presents as clean, neatly groomed and dressed appropriately at the hearing…”, was some 18 months after the date of the decision. Therefore, it is my submission that the FtT have erred by not making clear whether they have in fact considered the position at the date of the decision under appeal. This is required with section 12(8)(b) Social Security Act 1998 where it states that:
In deciding an appeal under this section, the First-tier Tribunal
(b)shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.
Similarly, when noting their findings in relation to daily living activity 6 – Dressing and undressing the FtT note at paragraph 75:
75.“The Tribunal finds limited reliable evidence that dressing restrictions persist on most days. The Appellant chose appropriate clothing and showed no signs of discomfort removing garments at the hearing. Her reported intermittent arm and back pain do not appear constantly debilitating. While her motivation fluctuates, sufficient evidence this regularly prevents dressing is absent.”
As noted above at paragraph 4.15 of this submission, the FtT appear to have based their findings on the observations of the claimant when removing garments at the hearing. Whilst the claimant may not have appeared in discomfort when doing so, it could be that the claimant’s pain may not have been present at that date. Given their observations were some 18 months after the date of the decision, it is my submission that the FtT have erred by not making clear whether they have in fact considered the position at the date of the decision under appeal.
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 long-standing 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 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 not to award points.
In view of the above, I respectfully submit 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 courteously submit that any further grounds raised by the claimant’s representative, will be subsumed by the newly constituted FtT.
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.
The legal principles applicable to an appeal to the Upper Tribunal
The Upper Tribunal’s jurisdiction under section 11 of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) is limited to considering whether there are any points of law arising from a decision made by the First-tier Tribunal.
Errors of law include misunderstanding or misapplying the law, taking into account irrelevant factors or failing to take into account relevant factors, procedural unfairness or failing to give adequate reasons for a decision.
An error of fact is not an error of law unless the First-tier Tribunal’s conclusion on the facts is perverse. That is a high threshold: it means that the conclusion must be irrational or wholly unsupported by the evidence. An appeal to the Upper Tribunal is not an opportunity to re-argue the case on its merits.
These principles are set out in many cases, including R (Iran) v SSHD [2005] EWCA Civ 982 at [9]-[11] and R (Wasif) v Secretary of State for the Home Department [2016] EWCA Civ 82; [2016] 1 WLR 2793 at [13].
In scrutinising the judgment of a First-tier Tribunal, the Upper Tribunal is required to read the judgment fairly and as a whole, remembering that the First-tier Tribunal is not required to express every step of its reasoning or to refer to all the evidence, but only to set out sufficient reasons to enable the parties to see why they have lost or won and that no error of law has been made: cf DPP Law Ltd v Greenberg [2021] EWCA Civ 672 at [57] (a case dealing with the employment context, but equally applicable here). That case also makes the point (at [58]) that where the First-tier Tribunal has correctly stated the law, the Upper Tribunal should be slow to conclude that it has misapplied it.
The First-tier Tribunal is also prohibited from taking 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) and evidence post-dating the decision may only be taken into account if it casts light on the circumstances as they stood at the time: cf SW v SSWP [2012] UKUT 76 (AAC).
My decision in this case
At the permission stage, I merely had to be satisfied that there were arguable grounds for appeal. At this final stage, I have to be satisfied that the Tribunal has actually erred in law. I have re-read the papers in the light of the Secretary of State’s submissions. It seems to me that the Tribunal has erred in law in two respects only, which are potentially related:-
First, it has failed to consider the basis for the supersession decision and to identify whether the Secretary of State had a lawful basis for superseding the February 2021 decision and bringing it to an end six months’ earlier than would otherwise have been the case. As the case law to which the parties have referred makes clear, the Tribunal needs to address that issue in such cases and to identify the date from which the supersession lawfully takes effect.
Secondly, the Tribunal has failed to confine its consideration to the circumstances as they were at the time of the Secretary of State’s decision on 28 January 2023. In granting permission to appeal, I associated this error with daily living activity 4 only, but in fact it seems to me that it is an error that has permeated the whole decision, which seems to me to be directed to the appellant’s circumstances as they were at the time of the hearing in June 2024. In this respect, I note that the decision does not mention section 12(8)(b) of the SSA 1998, and at [8], [11] and [22] of the SoR the Tribunal refers to its task in terms that suggests it believed it was assessing whether or not the appellant satisfied the criteria for entitlement to PIP as at the date of the hearing. This is most clear in [22] where the Tribunal states that it has “to determine if the Appellant’s reported functional restrictions were reliably evidenced and continued to meet PIP criteria for the daily living and mobility components over the relevant period following the decision to end her award”. I acknowledge that this may have been intended as a reference to the “required period condition” in regulation 12 of the PIP Regulations, but even if it is, it is not correct as a statement of the task for the Tribunal, which requires the Tribunal to consider whether the required period condition (and the other conditions) were met as at the date of the Secretary of State’s decision, not any subsequent date.
The grounds of appeal were limited, so I do not intend my making that observation that this error has permeated the whole decision to expand the grounds of appeal. I make clear that I am satisfied that this constitutes a material error even if it relates only to activity 4. However, ultimately it seems to me that this is actually the primary error that has occurred in relation to the other activities of daily living too.
I add that it was particularly important in this case that the Tribunal should focus on the time of the Secretary of State’s decision because, as it notes at [50] of the SoR, her condition has “fluctuated over recent years”. It was therefore necessary to make clear findings of fact about the position as at 28 January 2023. Reasoning by reference to the appellant’s presentation at the hearing was of very limited use in a case such as this.
I am not persuaded that the First-tier Tribunal’s reasoning was otherwise inadequate as, on reflection, and despite the Secretary of State’s full support for the appeal, I consider the Tribunal has otherwise properly directed itself as to the law and given adequate reasons for its decision as regards the evidential points on which the appellant relies. The Tribunal is not obliged to deal with every item of evidence in its reasons. However, the errors of law covered by grounds 1 and 3 are in themselves material errors and the appeal must be allowed, the decision of the Tribunal set aside in full and the matter remitted for rehearing.
Holly Stout
Judge of the Upper Tribunal
Authorised by the Judge for issue on 12 August 2025