AD v The Secretary of State for Work and Pensions

In this appeal AD acts through her mother, and Appointee, KD. The Department for Work and Pensions (“DWP”) administers social security benefit on behalf of the Secretary of State for Work and Pensions. KD made an initial claim for Disability Living Allowance (“DLA”) on 11 January 2023. On 04 May 2023, a DWP decision maker decided AD was not entitled to that benefit.

On 30 May 2023, KD lodged an appeal for AD with the First-tier Tribunal. On 22 November 2023, a First-tier Tribunal (“FTT”) heard AD’s appeal, but refused it and confirmed DWP’s decision.

In a decision dated 06 May 2025, I admitted the application made on behalf of AD, which had been made late. I also granted AD permission to appeal. I decided it was arguable the FTT had made one or more of the following errors of law.

Adequacy of factual findings and reasons about how AD’s conditions affected her at the relevant dates: It appeared the FTT had focused its Statement of Reasons more on what it decided was not affecting AD in January 2023 and May 2023 and not on how her medical condition did affect her (and what she could and could not do). The FTT had also not set out clearly when it decided AD’s medical condition had deteriorated.

The audio recording of the hearing on 22 November 2023 confirmed that KD said, several times, that AD’s condition had remained the same since January 2023 but that her treatment for it had changed. The FTT had not explained how it evaluated this evidence or what findings it made overall about AD’s deterioration.

Addressing the medical evidence adequately: at paragraph 34 of its Statement of Reasons, the FTT placed particular reliance on medical letters dated 02 June 2023 and 20 September 2023. The FTT wrote at paragraph 35 of its Statement of Reasons that the September 2023 consultant’s letter was the first mention of AD experiencing laboured breathing that KD had described in the appeal. However, the FTT did not explain what it made of the September 2023 letter describing AD’s condition deteriorating in January 2023.

Nor had the FTT explained what it made of the medical letter dated 25 April 2023, which described AD as being mildly noisy with her breathing, and KD providing a video showing mild increased breathing at night. AD’s consultant had decided to bring forward a surgery for AD on an emergency basis. He also wrote that he had submitted an application to the CDEG Committee asking for an urgent review to request permission to give AD Gardasil at 0, 2 and 6 months. The FTT’s Statement of Reasons refers to AD’s laboured breathing first being mentioned in September 2023, and that permission to give her Gardasil was given after DWP’s decision in May 2023. It appeared the FTT had not addressed the medical evidence in the April 2023 letter dealing with these matters.

I also observed the FTT had not explained what it made of the endoscopic photographs of AD’s airways pre- and post-surgeries. One set of photographs (08 February 2023) appeared to show a substantial difference in the width of AD’s airways. The FTT had medical expertise available to it to advise about matters such as this, but the written reasons had not explained what the FTT made of that evidence.

Addressing adequately the evidence about mobility: the FTT’s Statement of Reasons stated that KD had written in the DLA1 form that no issues were raised with mobility. This reflected her answers to questions 43 and 44 on that form. However, KD wrote in response to question 53 that AD got out of breath, broadly consistent with what she described in the SSCS1 appeal form to the FTT.

The Statement of Reasons referred to the fact KD described AD’s breathing being affected in the SSCS1 form but did not explain what it made of this evidence. Nor did it address the specific examples of problems AD experienced walking that KD provided in the SSCS1 form on 30 May 2023. It was unclear whether the FTT considered that the SSCS1 form represented a change in AD’s circumstances or represented evidence of what was happening for her at the date of DWP’s decision less than a month earlier (on 04 May 2023).

Mrs A. Watts is the Secretary of State’s representative in these proceedings. She supports the appeal in a helpful written submission dated 23 June 2025. Mrs Watts invites the Upper Tribunal to set aside the FTT’s decision dated 22 November 2023 for containing material errors of law, for the reasons set out below.

Failing to address adequately the evidence in the appeal: Mrs Watts submits that the FTT made a factual error about when AD’s condition deteriorated. The FTT stated in paragraph 5 of its Decision Notice and paragraph 20 of its Statement of Reasons that AD’s condition had deteriorated after DWP’s decision in May 2023. Mrs Watts submits there was extensive evidence before the FTT that showed AD’s condition deteriorated in January 2023 (around the date of claim). For example:

Mrs Watts submits that the FTT made an error of law by failing to properly take into account the evidence about the date at which AD’s condition deteriorated. She also submits that it was a material error, given the FTT’s assessment that AD’s deterioration occurred after May 2023 formed a large part of its conclusion that AD was not entitled to DLA at the date of DWP’s entitlement decision in May 2023.

Failing to take adequate account of the medical evidence: Mrs Watts submits that the FTT stated incorrectly that the first mention of AD’s laboured breathing was in the September 2023 letter. The FTT stated in the same paragraph (35) of its Statement of Reasons: “The Tribunal concluded that having regard to the nature of the condition and the treatment being given, such breathing would, if present in May 2023, unlikely be overlooked.”. Mrs Watts submits that this appears erroneous, given the April 2023 letter from the same consultant described AD having “noisy breathing” and decided that planned surgery to widen her airways should be brought forward.

Mrs Watts submits that the FTT made a material error of law by failing to engage fully with the evidence in the consultant’s April 2023 letter, or to explain its reasoning about it. In the absence of an explanation from the FTT about what it made of the April 2023 letter, it is difficult for KD to know how the FTT reached its conclusion in paragraph 35 of its Statement of Reasons (quoted at paragraph 14 above) and therefore why AD was not entitled to DLA.

Addressing the evidence about mobility adequately: Mrs Watts submits that it was incumbent on the FTT to consider the evidence of AD’s breathlessness within the appeal, given KD had said in the DLA1 form that AD experienced problems with breathing and breathlessness, and given the examples of AD’s difficulty mobilising that KD set out in the SSCS1 appeal form. Mrs Watts submits it is difficult from reading the Statement of Reasons to know how the FTT reconciled the evidence about AD’s breathlessness with its conclusion that she was not eligible for an award of the DLA mobility component at any rate.

Mrs Watts advises that since the date of the FTT’s decision, AD has been awarded:

Having seen Mrs Watts’ submissions supporting the appeal, KD has, understandably, not made further representations.

Neither party requested an oral hearing of the appeal. I took these preferences into account. I considered the appeal file. I decided the interests of justice did not require an oral hearing. The parties agree the FTT made material errors of law. It was proportionate to determine the appeal on the papers.

At the permission stage, I only needed to be persuaded that it was arguable with a realistic (as opposed to fanciful) prospect of success that the FTT had made an error of law in a way that was material.

At this substantive stage, I need to be satisfied on the balance of probabilities that the FTT did make an error or errors of law that were material.

I am satisfied, on the balance of probabilities, that the FTT made material errors of law in relation to the appeal grounds addressed by Mrs Watts at paragraphs 12 to 16 above and dealt with in more detail by her submission dated 12 June 2025.

Having decided the FTT’s decision involved material errors of law, it is appropriate to exercise my discretion to set aside the Tribunal’s decision dated 22 November 2023 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act provides that I must either remit the case to the First-tier Tribunal with directions for their reconsideration or remake the decision.

Neither party has asked me to remake the FTT’s decision. In any event, it is necessary for further facts to be found and it is clear that there is a need for careful assessment of the medical evidence in this appeal. The First-tier Tribunal is best placed to evaluate the evidence, including using its medical and disability expertise, and to make appropriate findings of fact.

I therefore remit AD’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about whether AD should be entitled to DLA.

Although I have set aside the FTT’s decision dated 22 November 2023, I am not making any findings, or expressing any view, about whether AD should be entitled to DLA. The next tribunal will need to hear evidence, make its own findings of fact, and provide its reasoning for the decision it reaches.