Appeal No. UA-2025-000366-PIP
Between:
CW
Appellant
- v -
The Secretary of State for Work and Pensions
Respondent
Before: Deputy Upper Tribunal Judge Hocking
Decided on consideration of the papers
Representation:
Appellant: Welfare rights service City of Wolverhampton council
Respondent: Mr Binks
On appeal from
Tribunal: Social entitlement chamber
Tribunal Case No: SC053/23/00729
Tribunal Venue: Wolverhampton
Decision Date: 29/2/24
DECISION
The decision of the Upper Tribunal is to allow the appeal
DIRECTIONS
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.
REASONS FOR DECISION
Decision on the papers
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.
Factual background
The appellant made a claim for PIP on 03.01.2023.. They underwent a face-to-face consultation, on 23.02.2023. The appellant scored 0 points for the daily living descriptors and 0 points for the mobility descriptors. A decision letter dated 03.03.2023 was issued to the appellant. The appellant requested a mandatory reconsideration of this decision, however the decision remained unchanged. The appellant lodged an appeal dated 07.03.2023 against the decision.
The FtT hearing was held on 29.02.2024,. A decision was made following an oral hearing. The appellant was awarded daily living activity 5b and mobility activity 12b, and so insufficient points were awarded to meet the threshold to be awarded PIP in either components. On 28.03/2025 the appellant appealed to the Upper Tribunal. On 19.05.2025 UTJ Butler gave permission to appeal.
Grounds of appeal
UTJ Butler gave permission to appeal on the following grounds:
That excessive weight was placed on the appellant’s comment that she had been “a little better” since a change in inhalers and that what that meant in terms of function was not properly explored
That changes in circumstances post dating the respondent’s decision were taken into account (namely a change of home in October 2023).
That a diagnosis of CODP and “very high symptoms” was not addressed
Similarly that medical evidence relating to back injury and knee injury was not addressed
That findings as to times and distances of walking were not adequate.
The respondent’s reply
As regards inhalers and changes in circumstances the respondent says;
the FtT appear to use the appellants move of house to support their award of PIP Mobility activity 2, justifying this further by the appellants use of inhalers. Given that this this period was 6 months following the date of decision, it remains unclear whether the FtT did adequately consider the limitations of the appellant at the time of decision. Given that the FtT was not allowed to take into account circumstances not obtaining at the date of DWP’s decision and in having regard to the period noted, the FtT appear to have erred under section 12(8)(b) of the Social Security Act 1998,
As regards COPD and back and knee injuries they say
while the FtT have the right to use any medical evidence they deem necessary to make their decision. It is unclear on what weighting the FtT have given to medical evidence. Upon listening to the oral hearing recording, the FtT panel member did discuss evidence with the appellant, linking this to the SOR at paragraph 8,
The SOR at paragraph 9 and 12, mention COPD, once as the conditions stated at the PIP medical assessment and an absence from work due to COPD. UT Judge Butler has kindly referred to medical evidence which highlight the level of diagnosis of COPD at Addition A, page 14 of FtT bundle as it fails, however, to address and explain what the FTT made of the fact that on 13 March 2023.
In additional after listening to the audio recording of the FtT hearing the diagnosis of COPD, investigations, level of breathlessness and restriction were discussed at length. The FtT have not considered or addressed this oral evidence in the SOR, it could be said that the FtT have dismissed or overlooked these as to a material fact. The FtT have limited themselves by not building on the evidence provided, including the adequacy of findings on oral evidence provided which seems to be consistent with supplied medical evidence. The FtT have remained silent on why they have omitted the oral evidence in their decision-making process. It is disparaging when one compares the SOR to the audio recording of the FtT where they discussed the appellants COPD and restrictions in great detail, however the FtT reporting’s in the SOR are inconsistent and are limited in their description of reasons.
Considering the occupational health report (Addition A, pages 7 to 8 FtT Bundle) and UT Judges Butlers helpful comments on this of which I agree, the FtT have limited themselves in the use of what is reported. While they have used some parts of the evidence that match the outcome given, they have omitted various key evidence which in turn has failed to consider medical details from the report which are essential when viewing the appellants restriction when undertaking the PIP activities.
As to finding relating to walking they say:
regarding the appellants ability to walk, listening to the audio recording of the FtT hearing, the appellants ability to mobilise was discussed at length, such as discussing how they would walk to the local pharmacy, around a supermarket or even local shops.
Paragraph 20 of the SOR states, “The view of the minority member of the Tribunal, was that a typical walking pace is about 70 metres per minute which is just under 3 miles per hour. She was walking for 1½ minutes and a person
without difficulties would have walked about 100 metres. If the Appellant was walking at about half pace she would have walked in the order of 50 metres.”
As helpfully noted by UT Judge Butler in their PTA in relation to Mobility activity 2 “the SOR does not describe the walking [ability of the appellant] were carrying out, and the types of distances [the appellant] were able to cover” I agree with the UT judges statement, upon on listening to the FtT hearing there was significant discussion around walking distances, and the FtT had used a mapping service to judge on distance, this seems to be omitted from the findings, which would have been key to the FtT decision making process.
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 appellants and the medical evidence which demonstrate the nature of her health conditions. 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.
Decision
I have little to add to the submissions of the respondent set out above. Although FtT reasons do not need to be set out at excessive length (and I have the SPT’s guidance on adequacy of reasons dated 4 June 2024 well in mind) the discussion of the medical evidence really is not adequate to understand what the FtT made of the impact of the COPD in particular. On the face of it some of the medical evidence would have seemed to support a significantly higher level of impairment than was awarded, particularly around mobility. Some of the oral evidence is to similar effect. There is no reason why that evidence must have carried the day but I cannot see the necessary holistic evaluation of all of the evidence that would explain why it did not.
If the “a little better” comment had stood alone as a ground of appeal I might well not have allowed the appeal, taking the view that the weight to put on that evidence was a matter for the FtT and that one should not be minutely critical of the text of an SoR. However as it sits within SoR that do not grapple as fully as they should with the totality of the evidence either written or oral, the complaint that in highlighting the concession that she had been a little better at the end of the required period the FtT gave that statement excessive weight has more force. It is not so much the weight given to the statement as the lack of weight given to other seemingly just as relevant material that causes concern.
The related point that the change in home circumstances post dated the award decision and so should not have been factored into the FtT’s reasoning is well made.
As to the findings as to walking, the findings of the minority member do highlight the gaps in reasoning of the majority decision. On the face of it the minority reasoning has force and reflects implicitly the requirements of regulation 4 of the social Security (personal independence payments) regulations 2013. The majority disagree because of a statement that the appellant had been a little better before October 2023. That would have needed to have been explored more fully and specifically for the reader to understand why it negated the minority viewpoint. The statement that she had been a little better is not obviously a strong one, or a clear one. Had the tribunal described specific activities or abilities at specific times (if she was undertaking known journeys, say) the reasoning could have been followed, but as it is it is not sufficient. I would prefer to see that as inadequate reasoning rather than excessive weight put on the statement but the result is the same.
Remit or Remake
The appellant invites me to remake the decision, if I feel there is sufficient information to do so. She explains that she would find a further tribunal hearing distressing, particularly in light of a recent bereavement.. I am sorry to hear about that and I do understand that tribunal proceedings can be stressful. Unfortunately though I do not feel able to remake the decision myself.
I cannot remake the decision on the basis of the findings of fact made by the FtT, because I have found above that those findings are not adequate. While I could in principle remake the decision on the basis of findings that I would make myself, I do not feel that the material before me allows me to do that without an oral hearing, which is what the appellant had hoped to avoid. And if there is to be an oral hearing it is better that it is conducted by the FtT, which has the benefit of specialist members and (if need be) a well trodden path of appeal to the Upper Tribunal. The Upper Tribunal typically lacks the same experience and expertise and offers a potentially more difficult route of appeal only to the Court of Appeal.
For those reasons I will remit the decision, confident that the FtT will do what is needed to put the appellant at her ease.
Conclusion
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.
Stephen Hocking
Deputy Judge of the Upper Tribunal
Authorised by the Judge for issue on 16 December 2025