RB v Secretary of State for Work and Pensions (PIP)

The appeal is remitted to the First-tier Tribunal for consideration at an

The new Tribunal should not involve any of the Tribunal panel members

The Tribunal hearing the remitted appeal is not bound in any way by the

Copies of this decision and the written submissions provided by each

The appellant appeals against a decision of the First-tier Tribunal (FtT) refusing an appeal against a decision of the Secretary of State for Work and Pensions (SSWP) dated 18^th June 2021 that she was not entitled to either component of personal independent payment (PIP).

The SSWP had refused a previous application for PIP but on appeal a tribunal had, on 17^th March 2020, awarded her the daily living component at the standard rate from 3^rd October 2017 to 2^nd October 2020. The appellant made a fresh claim on 3^rd April 2021. On 18^th June 2021 the SSWP decided that no points were awarded and so she was not entitled to either component of PIP.

Following a hearing on 6^th March 2025, the FtT decided that the appellant was not entitled to any points and refused the appeal. It provided a detailed statement of reasons dated 8^th April 2025.

The FtT noted that the appellant suffered from fibromyalgia, hypermobility spectrum disorder, costochondritis, scheuermann’s disease, endometriosis, anxiety and depression, and asthma. It found that the endometriosis did not cause functional limitation, the symptoms of costochondritis were short lived and had not impacted on the appellant on the majority of days, and that the asthma was mild and was not causing functional limitations to engage any of the descriptors. Accordingly none of those conditions were considered further by the tribunal.

The FtT described the remaining conditions as follows:

“25.

[The appellant] had suffered from anxiety and depression for a number of years. She had undertaken counselling and cognitive behavioural therapy which she had found helpful. She had been prescribed Sertraline in the past which she had stopped as she wished to become pregnant.

26.

[The appellant] had Fibromyalgia and Hypermobility Spectrum Disorder. She had experienced symptoms for a number of years. She experienced pain throughout her body daily. The Scheuermann’s disease also caused physical pain. She took Paracetamol for the pain when required. She also took Amitriptyline 10mg once per day.”

The FtT’s findings as to the appellant’s condition and functional limitations at the relevant time were explained as follows:

“27.

The tribunal had the benefit of GP medical notes from 11/03/2020 until 23/10/2024 at Addition F. There is reference to [the appellant] experiencing Fibromyalgia, Endometriosis and Asthma. Earlier notes confirm Scheuermann’s disease. However, there is little reference to [the appellant] consulting her GP in relation to those conditions and the functional limitation they cause during the prescribed period. There is reference to [the appellant] attending regular ante natal appointments and latterly consulting her GP regarding Psoriasis which was after the date of the decision. It was not a medical condition considered by the tribunal.

28.

The tribunal had regard to the entry at F6. The tribunal noted the entry of 14/11/2023 which records the findings of the health visitor new birth visit. An assessment of parenting capacity had taken place. No risk factors were identified. There was no impact on parenting capacity. There is no reference to the high level of physical limitation described by [the appellant] in her evidence.

29.

The tribunal considered the medical assessment report to be a comprehensive document completed within the confines of a telephone call. It was based on discussion and informal observations noted during the telephone call. All sections were completed adequately and there were no obvious inconsistencies. It was based on a telephone call over the course of 45 minutes which seemed to the tribunal to be a suitable lengthy period to allow for proper discussion and conclusions.

30.

The findings of the report were consistent with the view of the medical expertise of the tribunal having regard to the conditions, the level of input and the prescribed medication

31.

The tribunal found that the account given by [the appellant] in PIP2 claim form and oral evidence to be overstated and inconsistent with the medical evidence in the bundle. Using its medical expertise, the tribunal found the high level of functional limitation to be inconsistent with the nature of her medical conditions and their probable functional effects.

32.

The tribunal found the evidence of the healthcare professional to be more reliable and consistent with the nature of [the appellant’s] medical conditions and the medical evidence provided.

33.

[The appellant] appeared to understand the questions and participated fully in the hearing. She gave full answers to the tribunal’s questions. [The appellant’s husband] was present throughout. She did not require prompting or assistance. [The appellant’s husband] gave evidence of the assistance he provides to [the appellant].

34.

[The appellant] was asked by the tribunal to recall her condition and functional imitation as at the time of the decision in June 2021. Whilst she was slightly worse by the time of the hearing, she said her condition had broadly remained the same from June 2021 to the date of the hearing.

35.

The tribunal noted the previous decision of the appeal tribunal dated 17/03/2020. This was some years earlier. The tribunal were considering the circumstances as they were at the time of the decision on and around 16/12/2017.

36.

However, this tribunal were considering more recent events. The date of this decision was 18/06/2021.This tribunal, whilst having the older evidence from the previous appeal also had the benefit of recent medical evidence more pertinent to the period in question to consider when making the decision.”

The FtT proceeded to consider the descriptors which were in issue on the basis of those findings.

The grounds of appeal to the Upper Tribunal are as follows:

Permission to appeal to the Upper Tribunal was given by the FtT in the following terms:

“Most of the matters raised by the representative relate to the weight given to different aspects of the evidence by the tribunal. This is precisely the role of the tribunal, using its specialist expertise. The representative suggests that [the appellant] has health problems that do not get better. That is a surprising comment in relation to the medical conditions listed at para 19 of the statement, but in any event is a matter for the specialist expertise of the tribunal.

However it appears that the tribunal were influenced by the appellant’s lack of contact with her GP about her problems in the period March 2020 – June 2021. The representative makes the valid point that this period represented the height of the Covid 19 pandemic, and a lack of GP consultations is hardly surprising. While I do not consider that this makes a material difference, it is at least arguable that it could have done. I therefore grant permission to appeal.”

The FtT did not expressly refuse permission on the other grounds advanced on behalf of the appellant. In broad terms I agree with the observations of the FtT judge in the first paragraph above but in any event, as I have decided to allow the appeal on the main ground, there is no need for me to deal with the other grounds.

The SSWP does not support the appeal. He submits that the FtT’s finding that there was little reference in the GP records of the appellant reporting certain conditions does not necessarily mean the FtT had taken a view of that (I understand this submission to be that that finding of fact by the FtT does not necessarily mean that the FtT had taken a view of the significance of that fact). He submits that the observation at paragraph 27 of the statement of reasons was a fair one, as the records showed that the appellant had engaged with her GP when she thought it necessary. The FtT had considered the case holistically, relying on its own findings of the assessment report and its own medical expertise. Alternatively, if the reference to lack of engagement with the GP was an error, then it was not material.

In reply the appellant’s representative stands by all the grounds of appeal and also refers to LB v SSWP (PIP) [2025] UKUT 326 (AAC).

Neither party requested an oral hearing. They have each made detailed written submissions and I do not require any further elaboration of these nor evidence in order to decide the appeal. Directing an oral hearing would add to delay and expense but would not assist me, and I therefore conclude that it would be disproportionate and not in accordance with the overriding objective.

In MM v SSWP (ESA) [2018] UKUT 446 (AAC), the FtT had attached little weight to the GP’s report because there was little or no treatment to correspond with the GP’s diagnosis of the appellant’s conditions and symptoms. Upper Tribunal Judge Poynter made the following obiter comments:

“39 When a Tribunal concludes that a claimant cannot be accurately describing the conditions from which she suffers because, if she were, she would be receiving different treatment, its reasoning is often reducible to this: that the Tribunal’s medical member would not him- or herself treat a person with those conditions in that way…

…

45 There is therefore a real risk that drawing inferences about function from treatment will in some cases lead the Tribunal to conclude that claimant do not suffer from the loss of function they describe because they are not being correctly treated for it.”

This approach has since been confirmed by Upper Tribunal Judge Church in LB v SSWP (PIP) [2025] UKUT 326 (AAC). Judge Church found that there were several passages in the FtT’s statement of reasons that indicated that it had drawn inferences from the care received and not received. He said:

“20.

As Judge Poynter recognised in MM v SSWP, the drawing of inferences about the degree of a claimant’s symptoms from the level of treatment they have received, is fraught with danger. The treatment a claimant receives is not necessarily a reliable proxy for the degree of that claimant’s symptoms because there are several factors that could feed into a medical professional’s treatment decision…

21.

Care also needs to be taken if drawing inferences about the existence or otherwise of a claimant’s claimed symptoms, or the likely degree of any such symptoms, from the fact the appellant has received a particular treatment…

22.

None of these potential difficulties mean that a tribunal cannot draw inferences from evidence as to treatment a patient has received (or as to a lack of treatment) at all, but they mean that considerable care needs to be taken. However, if a tribunal is to draw such inferences, it would be wise to direct itself as to the risks associated with drawing such inferences, and to give a careful explanation of how it went about its decision making in this regard.”

In the present case the FtT’s observation at paragraph 27 was not directed to the lack of or type of treatment provided by the GP but about the claimant not having consulted her GP about the relevant conditions (although clearly the consequence of this was that she was not treated by the GP for them). I do not agree with the SSWP that the FtT had not taken a view of the significance of this fact. The FtT went on to contrast that fact with the fact that she had regularly attended ante natal appointments and consulted her GP about psoriasis. The only possible relevance of that comparison was that it founded an inference by the FtT that, if the relevant conditions had been as serious as claimed, the appellant would have sought medical help (as she had done in regard to psoriasis and her pregnancy).

While this may have been a fair inference to have made, as with treatment issues the tribunal should take care before drawing such an inference. There could be a number of explanations for the appellant not having consulted her GP, and those explanations may not have justified the inference drawn by the FtT. The appellant points to the fact that the period in question was during the covid pandemic. The SSWP points out that the period is January to December 2021 during which time people were consulting their GPs over the telephone and that the appellant did indeed consult with her GP about psoriasis during this period. The SSWP invites the Upper Tribunal to speculate: “While the Tribunal makes no comment on this, it may be that it had taken the view of the claimant being able to engage with her GP regarding those health conditions if they presented a significant issue impacting her daily living. If the Tribunal did take such a view, then it was entitled to do so as this was not the sole factor that resulted in its decision.”

I do not consider that it is appropriate to speculate. Had the FtT explored the matter with the appellant, she may have provided other explanations. For example, one can imagine that an acute psoriasis flare up may have prompted her to contact her GP whereas she may have felt that her ongoing conditions (ie those relevant to her PIP claim) did not necessitate her doing so. It is particularly relevant in this regard that, at page 243 of the bundle, the health care professional noted the appellant reporting that she had had physiotherapy in 2019 which had not helped and had increased pain, that she had been reviewed by a rheumatologist “a couple of years ago” and that she had spoken to her GP in November 2020 but was told to rest and she felt that her GP did not help. She had started CBT in 2020 which had stopped due to covid. She said that she was reviewed by her GP twice per year but she felt it did not help. These matters do not appear to have been explored by the FtT. While, as Judge Poynter said in MM, there may not be any point in a tribunal asking an appellant to explain treatment decisions of the doctor, that does not mean they should not ask the appellant to explain why she had not consulted the GP.

Moreover, paragraph 27 must be read along with paragraph 30, where the FtT went on to say that it had had regard to the “the level of input and the prescribed medication”. This statement attracts all the concerns identified by Judges Poynter and Church. Even if, by “level of input”, the FtT was referring to the lack of action by the appellant, the reliance on “prescribed medication” is problematic. There is no indication that the FtT was alive to the potential pitfalls of relying on such matters. Moreover, the FtT did not provide an adequate (or indeed any) explanation for the inferences drawn from the prescribed medication.

I take into account that these findings at paragraphs 27 and 30 form part of a longer and detailed decision. However, the FtT’s conclusions at paragraphs 31 and 32 (rejecting the appellant’s evidence and accepting that of the healthcare professional, are expressed as bald statements without further explanation. In the absence of any other explanation, it is probable that those conclusions turned on what the FtT said at paragraph 30 which itself picked up on its observations at paragraph 27. That rejection of the appellant’s claimed limitations then underpinned all the findings that follow.

The failure to explore the relevant matters with the appellant, thus depriving her of the opportunity to provide an explanation, along with the FtT’s failure to take the required care in regard to inferences, amount to errors of law.

I therefore allow the appeal and remit the case to be decided afresh by another FtT in accordance with the directions above.