JW v Secretary of State for Work and Pensions

The Appellant appeals, with the permission of Upper Tribunal Judge Citron, against the FtT’s decision referenced above. The FtT had dismissed his appeal against the DWP’s decision dated 22 February 2024 that he did not qualify for either component of personal independence payment (PIP) at either level. He had been awarded 2 points for needing incontinence aids and 2 for needing prompting to engage with other people face to face.

The appeal to the Upper Tribunal is supported by the Respondent (“SSWP”). Ms Goodman invites the Upper Tribunal to give guidance on reliance on reports by Health Care Professionals (HCPs) if there is evidence that a claimant has struggled with the assessment. That matter would seem to be covered by well-established principles of the duty to give adequate reasons. However, I do consider it appropriate to go into a degree of detail as to why this appeal is being allowed.

The Appellant was aged 57 at the date of the DWP’s decision. His physical medical conditions included hand arm vibration symptom with hands affected at stage II, blepharitis, diverticular disease, causing pain and frequent diarrhoea, and haemorrhoids. The blepharitis arises from an accident at work when a battery exploded in his face, for which he receives industrial injures disablement benefit at a rate reflecting an assessment of disablement at between 14 and 20%. In terms of his mental health, he had a history of anxiety and depression, which he continued to experience. Tragically, his teenage son had been killed in a road accident in or about 2013 and the Appellant had been required to identify his body at the mortuary. It is to this that he attributes the start of his mental health problems.

In a careful submission to the FtT, the Appellant’s representatives had also submitted that he had a degree of learning disability, undiagnosed because his age “means that he did not benefit from more modern approaches to learning disability.”

The descriptors in issue were 1d, 2d, 3b(ii), 5e, 6(c)(i), 8d, 9c, 10b and mobility activity 1d. With some exceptions, put broadly, the common theme running through the descriptors was a need for prompting.

The Appellant’s representative conceded before the FtT that there was not the evidence to justify an award under activities 8 and 10.

The evidence before the FtT included a report by a Health Care Professional (”HCP”) following a consultation held by telephone on 25 January 2024. I do not seek to record its contents in full; I merely highlight parts of it that are relevant to what I say below.

As regards mental health medication, she noted that the Appellant was on Citalopram 40mg x 1 daily.

In terms of the history the Appellant gave, she noted that although the Appellant has access to a car, he would only drive once or twice a month; he did not drive more often due to confidence issues and anxiety. He would use a taxi if someone else prepaid so he didn’t have to speak to the taxi driver.

The HCP noted that the Appellant was working as a litter picker on the motorway, working 8 hours a day Monday to Friday. She noted that he “…was made a litter picker and then now will follow litter pickers in van with colleague and collect bags of rubbish – he will not drive but is able to throw bags of [rubbish] into the van – these tasks have been [removed] from him and given to someone else after assessment with occupational health.”

He had had a 13 week absence from work due to work related stress and anxiety and also would use holiday days for sickness. He needed prompting to get up to go to work.

He used to have a lot of hobbies and interests many years ago but over the last few years had been unable to do them due to lack of motivation.

As regards managing his diverticulitis, he had tried hot water bottles and paracetamol., but nothing helped.

Under “Observations”, the HCP noted “Appeared to be in low mood on occasion – comforted by wife”. Under mental state, however “Coped well at interview…not anxious, agitated or tense.”

In terms of the descriptors recommended by the HCP, 2 points were awarded under activity 5 for the use of pads. 2 points were awarded for activity 9 for prompting

“because the effects of his anxiety, consistent with the [History of Conditions] showing diagnosed anxiety with awaited specialist input and [Functional History] showing he is unable to reliably engage without reassurance, suggest he would not be able to reliably engage with others face to face without prompting”.

For those activities where prompting was claimed but not awarded, the HCP relied on factors including the absence of variability in mental health issues, the absence of recent dosage changes, suggesting stability, and the fact that the Appellant was working on “MOD” (which is not explained but I take to mean something like “most ordinary days”) suggesting adequate motivation.

The FtT also had before it a submission forming part of the application for mandatory reconsideration, compiled by the Appellant’s wife on his behalf. It made, among others, the following points:

everything in the submission had been told to the HCP;

A further letter mentioned that the Appellant’s whole body had been shaking throughout the call with the HCP.

The written submission to the FtT dated 12 September 2024 materially added that:

the Appellant’s hours had decreased from 5 days to 4; and

The FtT held a telephone hearing. Both parties were represented and the Appellant was accompanied by his wife. The file was transferred to me for decision earlier this week. I have not been provided with the recording of the proceedings and, given that the appeal is supported, I do not regard it as proportionate to direct its provision at this stage. I will assume that the evidence given by the Appellant and/or his wife is consistent with the points I have noted as a. and b. in the previous paragraph.

The FtT’s decision set out uncontroversial preliminary matters, before proceeding to findings of fact, to which I return below.

In the reasons, it notes, “for the avoidance of doubt” that account had been taken of regulation 4(2A) of the Personal Independence Regulations 2013.

It then gives seven examples of reasons why it concluded that the Appellant’s account of his difficulties “is not credible due to inconsistency, implausibility and a tendency to overstate his difficulties, as noted above” and therefore that his account could not be relied upon.

By contrast, it found the HCP’s opinion to be credible

“because, over the course of an assessment lasting 1 ¼ hours, she has taken an adequate history and made observations of the appellant such as are possible in the course of a telephone assessment. Her opinion is based on and arises out of the history and observations, and is not inconsistent with the medical evidence from the appellant’s own GP.”

Accordingly, the FtT found that the Appellant qualified for no additional points.

Judge Citron put concisely his reason for giving permission to appeal:

“In essence, it seems in this case that the [FtT] adopted the findings, reasons and conclusions of the [HCP’s] report…however, arguably, that report did not make factual findings, or explain its thinking in relation to the law, to the standard of adequacy.”

Ms Pettet for SSWP submits that the FtT erred in law both in its fact-finding and in its duty to provide adequate reasons.

It seems to me that issues arise in respect of the adequacy of the reasons given for the FtT’s reliance on the HCP’s report:

the adequacy of the reasons given the conclusions derived from what it said.

The HCP herself notes (without indicating what she made of it) that the Appellant was in low mood “on occasion” (suggesting more than once) during the call and had to be “comforted” by his wife (suggesting distress). Even if, as the FtT found, the Appellant has a tendency to overstate his difficulties, there is a direct challenge to the sufficiency and reliability of the HCP’s report: sufficiency, because (according to the mandatory reconsideration letters (potentially highly material) evidence had been given to the HCP but not recorded; reliability, because of the distress it involved to the Appellant, his difficulty in understanding what was being asked of him and his difficulty in speaking to his GP – or others – about his mental health difficulties and the distressing circumstances giving rise to them. The FtT fails to address these.

The reasons for relying on the HCP’s report are also inadequate in respect of its content.

When negating the applicability of descriptors relating to prompting, the HCP places substantial weight on the Appellant’s medication having been unchanged for seven years, but the FtT fails to address that 40mg is the maximum dose of Citalopram and so could not be increased, nor the evidence that the Appellant does not feel able to pursue other forms of treatment for his mental health difficulties.

While if there were variability in the Appellant’s mental health, that might pose its own issues, the relevance of the lack of it depends on what level it was at and failed to vary from. On the Appellant’s case, it was uniformly poor.

Although the HCP awarded 2 points for engaging with other people, the reasoning behind it, which relied on what was said about anxiety in the History of Condition and what was said in the Functional History was capable of being applied to at least some of the other descriptors regarding prompting, but was not.

The HCP also places significant weight on the fact that the Appellant was working. However, her report is ambiguous about tasks which had been taken away from the Appellant and her reasoning does not take into account matters some of which were in her report and all of which appear to have been in evidence before the FtT:

I accept that the fact that a claimant is working may be relevant, but sometimes more fact finding as to the circumstances of such work is required if reasons are to be adequate: see, for instance PD v SSWP (ESA) [2012] UKUT 255 (AAC).

The FtT’s findings of fact were extremely brief and limited to his date of birth (1 paragraph), his diagnoses (through with no mention of the impact of those diagnoses)(4 paragraphs), the FtT’s view of the Appellant’s participation in the assessment by the HCP (1 paragraph), his work and his ability to drive (one paragraph each). There are no findings of fact referable to the individual activities, notwithstanding that particular activities had been put in issue. It was not in dispute that the Appellant does have some conditions capable of having a disabling effect, yet the FtT makes no findings as to what the effect of those conditions was down to the decision date.

Without limitation, there are no findings as to the effect of his mental health condition on any of the descriptors claimed on the basis of a need for prompting.

As regards managing incontinence, there are no findings as to how the Appellant was managing (or more accurately, needed to manage) bowel incontinence down to the date of decision: it appears that he was using pads at the time of the HCP consultation but by August when the representative’s submission was prepared, he was reported to be using a bucket in the back of his van. Even if using the bucket started after the date of decision, it could indicate that the pads were providing insufficient at the date of decision. The decision in MS, relied upon by Ms Goodman, does not make clear what form of “assistance” the claimant was thought to require, though the appropriateness of awarding 8 points was conceded by SSWP’s representative in that case. There is, surprisingly perhaps, no descriptor for “cannot manage incontinence at all” which would pick up arrangements which are not “to an acceptable standard” or which cannot be accomplished “within a reasonable time period” and which cannot be improved upon by the use of an aid or appliance or by assistance. I am not sure whether MS is correctly decided on that point but subject to any further consideration, whether in another case or if this one comes back to the Upper Tribunal, the Appellant is clearly entitled to have put forward the argument and it requires a finding to have been made as to what his methods for managing incontinence needed to be at the date of the DWP’s decision.

In fairness to the FtT, I accept that if a tribunal cannot obtain evidence which it considers credible, there may be findings which it cannot properly make. If, as the FtT evidently considered, the Appellant’s account of his difficulties could not be relied upon and the FtT pursued the matter no further, making findings could indeed be problematic. However, the FtT has an inquisitorial jurisdiction. The Appellant has long-term anxiety and depression with low mood, a painful and disabling physical condition which he might well find hard to talk about and, whether or not he would be considered to have learning disabilities if formally assessed, appears unable to draw on cognitive resources which might give extra resilience. For this reason, I accept Ms Pettet’s suggestion that the FtT had an obligation in its inquisitorial jurisdiction to probe further and, had it done so, it may have been able to make the findings which are at present lacking. It was in my view particularly important that it did so, given the considerable difficulties with the FtT’s reliance on the HCP report recorded above.

For the above reasons, which overlap with Ms Pettet’s, I agree with her that the FtT’s fact-finding and reasons were inadequate. If there were other errors of law, they will be subsumed within the fresh appeal which I have directed.