VK v Secretary of State for Work and Pensions

She has been diagnosed with carpel tunnel; syndrome in both hands. …

She has generalised anxiety and is prescribed medications to treat anxiety which, she feels, are helping but not curing. The medication makes her feel calmer.

The appellant is very concerned about her health. Although anxious, she has medication which in her words, “calms her”. She does not experience panic attacks or overwhelming psychological distress. At the time of the assessment she was not using propranolol on a regular basis but only when she was feeling anxious. She did not always take it when she was going out.

The appellant had some “talking therapy” after the date of decision when her mental health deteriorated and her antidepressant medication was increased. The deterioration cannot be taken into account in connection with this application.”

It is my submission that the FtT 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 at paragraph 29 of the SOR, in relation to daily living activity 9 - Engaging with others face to face, appears to be no more than a rehearsal of evidence and a conclusion without an explanation.

Turning to the ground of appeal, as helpfully noted by UT Judge Wright in their Permission to Appeal (PTA) in relation to daily living activity 9 – Engaging with others face to face (repeated above). The FtT stated the following at paragraph 29 of the SOR.

In dealing with UT Judge Wright’s helpful point at 4 in their PTA, whilst the FtT stated at paragraph 17 of the SOR (repeated above) that the claimant:

“had some “talking therapy” after the date of decision when her mental health deteriorated and her antidepressant medication was increased. The deterioration cannot be taken into account in connection with this application.”

Whilst it is correct that the FtT may not be able to take into account any deterioration after the date of decision, however when reading the SOR at paragraph 29 of the SOR (repeated above), the FtT appear somewhat contradictory when stating that the claimant:

“…previously worked as a 44 cleaner in private homes, stopping this work in about September/October 2023. She was able to engage with her customers…” .

What were the FtT inferring – that the claimant’s mental health was stable in and around September/October 2023? If this is so then would it not be the case that since stopping work that her mental health has deteriorated to such a degree that she was placed on a waiting list for talking therapy and her medication was increased by her GP?

Furthermore, I would note that at the date relied upon when engaging with customers this was around the end of October 2023 and the date of claim is 06/06/2024, which is some 8 months after the apparent ‘ability to engage with customers’. Moreover, the claimant in her PIP2 questionnaire reported at page 26 reported that she has suffered with anxiety for about a year and takes propranolol and amitriptyline. Also, at page 48 the claimant reported that: “I suffer with anxiety, and struggle to mix with other people on a daily basis…”. However, the FtT do not engage with this evidence.

It is also noted at page 68 by the HealthCare Professional (HCP) at the assessment which took place on 26/09/2024 that: “When she is anxious her whole body shakes, she gets mainly anxious because she is not able to partake in normal tasks, she feels defenceless and this makes her anxious. Denies panic attacks and would take her medications when she is anxious and she does not find this particular effective. Awaiting GP medication review next month…” Also, at page 96 when undergoing an assessment on 10/01/2024 with a HCP for Universal Credit (UC), it is reported that the claimant: “…was diagnosed with anxiety in June 2023…she feels her mental health has been exacerbated by her physical ill health…”.

Additionally, the claimant stated in their mandatory reconsideration letter that: “…Due to the increased anxiety and inundating thoughts my medications were increased to mirtazapine 30mg from 15mg since 8 October 2024 and I am on a waiting list to talking therapy since 18 October 2024…” Therefore, it could be said that the evidence (repeated above) and the reported difficulties, at the date of the PIP assessment, including an outstanding review for the medication, does appear to show difficulties at the date of decision. As such, it appears that the FtT have failed to engage with the evidence and further findings of facts and adequate reasons are required.

Notwithstanding the above, I respectfully concur with UT Judge Wright that the FtT appear to have taken a somewhat narrow and contradictory view when relying upon the claimants ability to engage with customers when employed and simply dismissing the claimant’s difficulties and decline in her mental health at or around the date of decision, which I note is within the required period. As such, I submit that the FtT have erred in law in failing to adequately explain the conflict when relying on facts to make their decision.

In addressing UT Judge Wright’s second example at point 5 of their PTA where it is noted that:

“…it may arguably be unclear why an ability on the part of the appellant to engage with family friends on occasion, and speaking to school teachers and at medical appointments as required, sufficiently engaged either with the appellant’s ability to engage with others for 50% of the required period (per regulation 7 of the Social Security (Personal Independence Payment) Regulations 2013), or the appellant’s case as she set out in her appeal (at page 6 of the FTT bundle) that, for example, “I tend to avoid social interactions to prevent being judged or belittled””.

Whilst it is correct that the FtT appear to record some of the claimant’s difficulties, however it is unclear whether they accepted all the evidence. It is noted at page 48 of the claimant’s PIP2 questionnaire the following: “I suffer with anxiety and struggle to mix with other people on daily basis as I feel I am being judged…I avoid to interact with other people to prevent from being judged and belittled as it aggravates my anxiety. I also don’t feel confident in describing my symptoms, so I have to be prompted and supported by my partner to ask for help. I have isolated myself from friends and other people to avoid disclosing my health state and let them see how I am struggling…” Impulsive behaviour including aggression.

The FtT at paragraph 34 of the SOR state that they have accepted that the claimant has depression and anxiety and concluded at paragraph 35 of the SOR that there was a deterioration in the claimant’s mental health after the decision. However, as noted above at paragraph 29 of the SOR the FtT appear to place weight upon the fact that the claimant: “…was able to meet family friends on occasions. She spoke to school teachers as required. She was able to speak at medical appointments without support…” . It is unclear how they came to this conclusion.

The claimant as noted above in her PIP2 questionnaire avoids interacting with others, she is prompted and or supported by her partner to ask for help as she is not confident describing symptoms and has isolated herself from friends. Could it be that when at appointments that the claimant is supported by her partner? What did the FtT mean when stating at paragraph 29 of the SOR (repeated above) that: “…was able to meet family friends on occasion…”. What does ‘on occasion’ look like, specifically given her statement that she has isolated herself from friends and other people. Also, it is unclear how often the claimant spoke to school teacher’s. Specifically, as the FtT noted she can do so ‘as required’. Again, what does this mean?

It is my submission that the findings and conclusions of the FtT do not adequately consider whether the claimant is able to engage with others face to face and as helpfully noted by UT Judge Wright whether she can engage with others for 50% of the required period (per regulation 7 of the Social Security (Personal Independence Payment) Regulations 2013).

It is clear upon my reading of the SOR that in reaching its conclusion the FtT has clearly failed to take into consideration the difficulties the claimant had identified. Given the evidence as noted above, it was incumbent upon the FtT to use its inquisitorial function to establish if the claimant was able to engage with others face to face. The FtT’s decision and reasons lead me to infer that they did not adequately consider daily living activity 9, I submit that the FtT should have gone on to consider whether the claimant met any of the scoring descriptors within this activity and if not, why they did not apply to this claimant. This I submit is an error in law.

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 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 am in agreement with UT Judge Wright 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. Also as noted above (paragraph 2.3) the claimant was awarded 7 points for daily living descriptors 1b, 3b, 4b, 6b. Therefore, any errors of law would need to result in a minimum of 1 additional point being awarded for the daily living descriptors of PIP for it to be material.

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.

For completeness, the UT Judge will wish to know that the claimant has made a further claim to PIP and completed a PIP2 questionnaire dated 02/02/2026 which has yet to be decided”