TS 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. The parties’ positions are clear and nothing raised by the appeal calls for an oral hearing, which would cause delay. 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.

On 26 March 2020 the appellant made an application for PIP. Following a telephone assessment she was initially awarded no points for any descriptor by decision letter issued on 4 June 2020. After mandatory reconsideration she was awarded 9 points for the daily living descriptors 1b, 4e, 5b, 6c, and 8 points for the mobility descriptors 2c. Thus the standard rate of both the daily living and mobility components of PIP was payable from 26 March 2020.

On 17 October 2022 the appellant submitted information in response to a review request. On 19 April 2023 she was notified that the review was not yet complete and the end date for her PIP award was extended to 21 May 2024. On 27 July 2023 she was reassessed by a HCP. On 15 August 2023 was notified that she had been awarded no points for any descriptor and that her PIP award would end with immediate effect. On mandatory reconsideration on 23 September 2025 she was awarded six points for daily living activities (two points for each of activities 4, 5, and 6) and four points for mobility activity 2, but she continued to be ineligible for any element of PIP.

The appellant appealed to the FtT on 19 October 2023. Her appeal was heard on 27 September 2024. The FtT awarded the same points as the decision maker, six points for daily living activities and four for mobility activities, and so the appellant remained ineligible for any element of PIP.

On 12 February 2025 the Upper Tribunal received the appellant’s application for permission to appeal and on 22 September 2025 UTJ Wright gave permission to appeal.

The appellant’s grounds, which UTJ Wright accepted were arguable, were:

UTJ Wright identified a further arguable ground of appeal not put forward by the appellant; namely that this was s supersession decision but the FTT appeared to have no regard to that context. He said this:

The respondent deals only with UTJ Wright’s point, and does so in these terms:

On the supersession point there is little to add to the respondent’s submissions. The SoR begin by quoting from the Senior President’s practice direction on adequacy of reasons dated 4 June 2024, but nothing in that PD or the cases on which it draws is inconsistent with DS v SSWP (PIP) [2016] UKUT 538 (AAC). In a supersession case it is necessary first to identify the ground of supersession, by reference to part 3 chapter 1 of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013. In this case, where the appellant was not saying her conditions had improved, (indeed if anything she appeared to say they had got worse), the FtT must then at the least say if they considered the evidence that had supported the earlier award of PIP relevant, and if so, take account of it, and if not explain why not (see DS paragraphs 17-18).

As to adequacy of reasons the FtT should see the passage from R(M)1/96 quoted above, which is referred to and adopted in DS at paragraph 19. As DS makes clear, and consistently with the SPT’s PD, the reason for departing from the result of a previous award (if that is the decision) need not be stated at length (and I will expressly highlight that an FtT is entitled to conclude simply that an earlier decision was wrong on the evidence available at the time, provided they also say why it was wrong). But reasons there must be.

That disposes of the appeal so I will deal only briefly with the appellant’s remaining grounds, in the hope that may be helpful.

The first ground relating to daily living activity 9 I would have held to be ill founded. The examples of interaction given by the FtT in its decision are brief but (bearing in mind the SPT’s PD referred to above) adequate to show that the FtT considered activity 9 correctly and to explain why they felt it was not engaged.

I would have reached the same conclusion as regards the second ground and mobility activity 1. The reasons do refer to a bus journey (thus addressing what may be the specific challenges of taking a journey by public transport such as understanding a route or timetable, or waiting for the transport, boarding and alighting, and so on) although it is fair to say they do not expressly say the bus journey was unfamiliar. I do not see in this case that a self directed journey on foot raises issues not raised by a self directed journey in a car. It is right that I start from a presumption (albeit readily rebutted) that an expert tribunal will understand its task without having to state at length every part of its considerations. Reading the SoR in the round I do not think the FtT failed to consider the activity correctly.

As to the reference to the FtT relying on the absence of referral to a specialist as evidence that the claimed conditions were not severe, I think this is a reference to the fact that the appellant claims to be affected by rheumatoid arthritis but is not receiving specific medication and has not been referred to a rheumatologist. That sits within a longer passage noting that she has also not had a referral for carpal tunnel syndrome, or been to a falls clinic, or received medication for incontinence.

Assessment of the evidence is a matter for the FtT and these all seem relevant observations for an FtT to make. Of course it is not necessarily the case that, say, not being referred to a specialist or not taking medication must mean that a condition is having less of an impact on activities than might have been the case. An appellant might have a fear of, or not want to bother the medical profession. They might prefer to manage a condition without pharmaceuticals or to use “alternative” remedies. They might have asked for a referral but that could have been overlooked in the NHS system or wrongly refused. If any such factor applied then it may be no inference could be drawn from a lack of conventional medical treatment. But all other things being equal the suggestion that a condition that is having a more serious impact on activities is likely to be receiving more specialist medical input (where that exists and is available) is one that an FtT is entitled to take into account.

I do not think that amounts to the illegitimate substitution of the medically qualified tribunal member’s judgement for the treating clinician’s judgement which is referred to by Judge Poynter in MM v SSWP (ESA) [2018] UKUT 446 (AAC). (I must also respectfully demure from the observation in that case that “particularly in relation to prescribing, treatment is an art as well as a science. Or, at least, it is a matter of professional judgment that can be heavily influenced by the individual doctor’s own experience” Whether or not that is true as a fact of any particular doctor, I do not believe it fully represents the standards to which the medical profession now aspires in an era of NICE guidelines and Cochrane reviews and the like.)

Accordingly (and I say this obiter and without sight of any further submissions the appellant would have made) I would have rejected the appeal on the three grounds raised by the appellant. None of that matters, as the effect of the ground identified by UTJ Wright is there must be a full reconsideration in any event.

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. I stress that this appeal having succeeded carries no implication for whether the FtT will or will not reach a decision that is more favourable to the appellant. That is a matter for it.

The above decision has been made without obtaining, and therefore without sight of, any observations the appellant may have wished to make on the Secretary of State’s submission supporting her appeal to the Upper Tribunal.  I took the view it was better to decide the appeal in the appellant’s favour now than to delay making the decision while waiting for her to make any observations in reply. To that extent, I vary the directions of 22 September 2025 on this appeal. If, however, the appellant would have wished by her observations in reply to disagree with her appeal to the Upper Tribunal being allowed in the above manner, she can apply to have this decision set aside. How she can do so will be explained in in the covering letter issued with this decision. Whether the decision will be set aside, if such an application is made, will depend on the grounds the appellant may advance disagreeing with her appeal having been decided without any observations in reply from her and what those observations would have stated disagreeing with the Secretary of State’s support for the appeal (if she would have wished to disagree with the Secretary of State’s submission of 13 October 2025)