Appeal No. UA-2024-000844-PIP
Between:
EB
Appellant
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge M Sutherland Williams
Mode of hearing: Decided on consideration of the papers
On appeal from:
Tribunal: First-Tier Tribunal (Social Entitlement Chamber)
Tribunal Case No: SC285/23/02252
Tribunal Venue: Birmingham Civil Justice Centre
Hearing Date: 20 November 2023
DECISION
The decision of the Upper Tribunal is to allow the appeal.
DIRECTIONS
The decision of the First-tier Tribunal sitting in Birmingham Civil Justice Centre on 20 November 2023 under reference SC285/23/02252 is set aside and I remit this matter to a differently constituted panel in the Social Entitlement Chamber of the First-tier Tribunal for reconsideration.
This matter shall be referred to a District Tribunal Judge to give listing and case management directions. I note, but no more, that this matter has now been within the appeal system for over 2 years, and an expedited hearing in encouraged.
PRELIMINARY MATTERS
Both the appellant and the respondent agree that the decision of the tribunal was made in error of law. The Secretary of State has indicated that they are content for this matter to be dealt with without reasons and on the papers. The appellant has asked for an oral hearing and reasons on the basis that her ‘first decision was wrong’ and that she is ‘not able to walk properly and run again’.
Having considered the papers and the submissions, I am satisfied that I can make a decision on this appeal without directly hearing further from the parties. It is fair and just to do so. The submissions and respective positions are clear. It is likely that the appellant believes this may also be the re-hearing of her appeal. It is not. She will get the opportunity to put her case in full before a fact-finding tribunal in due course. I am only deciding whether there has been an error of law in the first tribunal’s decision. As a result, and with the overriding objective in mind, I do not see any benefit to the appellant in arranging a further hearing before this Upper Tribunal, as I have already decided to allow the appeal in the appellant’s favour.
The granting of permission to appeal
To assist the First-tier Tribunal (‘FTT’) on remittal, I produce below a summary of the concerns ventilated by Judge Brewer at length in granting permission in this Personal Independence Payment (‘PIP’) appeal. The complete reasons will be included in the papers before the next tribunal.
“The arguable failings in the Tribunal’s reasoning at [12] are as follows:
Issue 1: Relevant Medical conditions and post decision deterioration
The Tribunal outlined the Appellant’s medical conditions at [9]-[12] of the Statement of Reasons (“SoR”).
….The Tribunal reached [the above finding] that the deterioration arose only post decision (10 February 2023) because of the physio letter’s reference to the Appellant’s “recent” right knee pain and back pain. Consequently any functional impairment arising from right knee pain and back pain did not feature in their analysis of the PIP activities. In reaching this finding. I am satisfied that the Tribunal overlooked evidence and/or failed to exercise their inquisitorial function which arguably impugned their finding at [12]….
Issue 2: Regulation 4(2A) of the Social Security (PIP) Regulations 2013
The Tribunal correctly considered the PIP activities in issue through the lens of Regulation 4(2A). Material to this appeal was whether the Appellant, in carrying out activities, experienced pain that meant she could not carry out the activities to an acceptable standard. Further, whether the Appellant’s evidence required the Tribunal to consider her functional impairment(s) were such that she could not carry out the daily living activities safely or within a reasonable period of time.
I am satisfied that the Tribunal arguably erred in law in its approach to the evidence before it, which impugned their analysis of regulation 4(2A) as it applies to all of the PIP activities in issue…..
…..there is no evidence elicited from the Appellant which supported the Tribunal’s conclusion that she only experienced severe pain after walking further that 50m unless she was using stairs. Nor is it clear from the Tribunal’s reasons why the threshold of pain must be ‘severe’ before the activity can no longer be carried out to an acceptable standard. In any event, the issue of level of pain experienced and at which point on moving she experienced pain does not appear to have been explored by the Tribunal. …
….To conclude, the medical evidence from the Orthopaedic Consultant and the Appellant’s Physiotherapist confirmed that severe pain occurred when she bent or moved her knee (see evidence recited above). In the circumstances, while the Tribunal is not bound by the evidence from Ms B’s treating clinicians, if the Tribunal reject the medical evidence or qualify the evidence by reference to the medical expertise of the panel member, it is arguable that the Tribunal were required to set out its reasons for doing so.”
The Secretary of State’s response
The Secretary of State supports this appeal. The full reasons will be in the remitted bundle, but I produce the relevant parts below, again in order to assist:
“Relevant Medical conditions and post decision deterioration
The Appellant suffers from asthma, diabetes [Paragraph 9 SOR,] and left knee injury [Page C, FtT Bundle].
4.1 At the FtT the decision of the Secretary of State awarding 6 points for DL descriptor 1(b), 4(b), and 5(b) and 4 points for mob descriptor 12(b) was affirmed. The FtT held that:
“45. We were sympathetic but the appeal is refused because Ms B did not meet the legal test for the benefit.”
[Paragraph 45, SOR]
4.2 However, in awarding zero points for the remaining DL descriptors and Mob descriptors, the FtT did not provide sufficient reasons for its decision within the SOR.
4.3 The FtT also failed to consider the evidences of the Appellant contained in the FtT bundle about the nature of her injury and its continuous effects on her abilities to carry out PIP activities when it rejected the physiotherapist’s letter dated 16/10/2023 [Addition B, Pages 1 – 2, FtT Bundle].
..…
Regulation 4(2A) of the Social Security (PIP) Regulations 2013
4.4 The material aspect of the appeal was whether the Appellant, in carrying out activities, experienced pain that meant she could not carry out the activities to an acceptable standard. Further, whether the Appellant’s evidence required the FtT to consider her functional impairment(s) were such that she could not carry out PIP activities safely or within a reasonable period of time.
4.5 I agree with the UT Judge that the FtT erred in law its approach to the evidence before it, which impugned their analysis of regulation 4(2A) as it applies to all of the PIP activities in issue.
4.6 In reaching its decision that the Appellant could carry out PIP activities safely to an acceptable standard, repeatedly and within a reasonable time period, the FtT arguably failed to make findings on the evidences contained within the FtT bundle, and the Appellant’s oral evidence obtained during the appeal hearing. The FtT also made mistakes of fact which were arguably material to their finding.…
….”
I adopt and rely upon the reasons already articulated, together with Judge Brewer’s more detailed initial decision to grant permission to appeal and the submissions advanced on behalf of the Secretary of State.
In my judgment, the decision of the FTT contains an error of law. Specifically, the FTT failed to engage with material evidence contained within the FTT bundle and the oral evidence of the appellant during the hearing.
Whilst the FTT is not bound to accept the evidence of the appellant’s treating clinicians, where such medical evidence is rejected or qualified by reference to the expertise of a panel member, the FTT is required to provide clear and cogent reasons for doing so.
Those reasons must enable the reader to understand the basis upon which the matter was determined and the conclusions reached on the principal, important, and controversial issues, demonstrating how any question of law or fact was resolved.
It is well-established that First-tier tribunals must address the issues raised before them and give adequate reasons for their conclusions on significant matters. This is essential to show that the FTT has properly engaged with the evidence and arguments presented. In the present case, the Statement of Reasons fails to demonstrate such engagement with some of the relevant evidence and facts adduced at the hearing and contained within the bundle.
It was important that it did so, because the decision was that the appellant was entitled to 6 points for the daily living activities and 4 points for mobility activities. Additional points may have given her the potential to qualify.
Accordingly, I direct that this case be remitted to a differently constituted tribunal for a complete rehearing.
For the avoidance of doubt, the fact that the appeal has succeeded at this stage should not be taken as any indication of the outcome before the First-tier Tribunal in due course.
M. SUTHERLAND WILLIAMS
Judge of the Upper Tribunal
Authorised by the Judge for issue on 22 October 2025