JH v Secretary of State for Work and Pensions

The case must be heard entirely afresh by a wholly differently constituted First-tier Tribunal (“FtT”).

The file must be referred to a salaried judge of the FtT for case management directions regarding listing and any other matter on which directions may be considered necessary.

The Appellant appeals with permission given by Upper Tribunal Judge Smith. The judge considered the Grounds that had been put forward and listened to the recording of the hearing. She identified that the principal Ground for giving permission, out of those put forward by the Appellant’s representative, was that he was not asked sufficient information about his condition. Certain of the other Grounds were not ruled out, essentially on the basis that they might overlap with the Ground on which permission to appeal was given.

This case now concerns a “closed” period, beginning with 22 June 2023 when the Appellant made the claim which is the subject of this case and ending on 25 March 2025 when the Appellant made a further claim.

This case has now been referred to me for decision.

The FtT awarded 7 points for the Daily Living descriptors and 4 points in respect of the Mobility descriptors.

The FtT recorded that the healthcare professional (“HCP”) had “summarised that the Appellant, who conducted the medical assessment with his grandmother, was mentally and cognitively intact. He was reported to be talkative, but tense. His concentration and cognition were good.”

The quotation from the FtT’s Reasons in the previous paragraph was a very selective (and in part inaccurate) extract from the HCP’s evidence. As the Respondent’s representative notes (among other things) the HCP recorded:

“Condition : Depression/Anxiety

Diagnosed: in 2016

Current Input or Treatment: Medication and under GP care….

Symptoms: Gran reports he is on a downward spiral as he feels his diabetes spoils his life and this [affects] his mood and causes low mood, low motivation, anxiety, wants to stay in a dark place in his house, turns his phone off and his gran reports she can’t get in touch with him.

Suicide: On and off thoughts, more when he is alone – GP is aware.

Self-harm: Tried to overdose once earlier this year and his gran confirms this.”

The relevant medication was Duloxetine, an anti-depressant. The Appellant told the HCP that it was better at first but thought it might be losing its effect over time. As regards variability, so far as depression was concerned, “all days were bad days.”

The HCP further noted that he “answered all question with the support of his gran. But would often go off topic and had to be supported by his gran to get him back on track” and “Some difficulty coping at interview. Seemed tense… Spoke rapidly. Spoke at normal volume…Needed prompting to participate. Adequate general memory. Poor concentration.”

The evidence was not all one way. The FtT noted that the Appellant gave oral evidence that he was not depressed, just fed up with his situation, but also that his mental health stopped his day-to-day activities on 2 to 3 days of the week. It further noted that he had no treatment for mental health apart from medication and no care plan.

The Respondent supports the appeal on the grounds that the FtT failed to find adequate facts and provide adequate reasons for its Decision.

I agree, for the reasons below. My reasons overlap with those on which Judge Smith gave permission. It is frequently the case that errors in administrative law can be categorised in more than one way.

Specifically, as regards concentration, the HCP does not appear to have reported that it was “good” as stated in the FtT’s Reasons; rather, the opposite – see [8] above. That, and the failure to note the rest of the HCP’s evidence about concentration, suggests either that insufficient regard was had to the totality of the evidence or, if the FtT had considered it, but reached a contrary conclusion, have failed to explain the reasons for that conclusion.

As regards the Appellant’s mental health, his own evidence as set out in [10] above was somewhat self-contradictory. His grandmother had provided evidence to the HCP as set out in [7] above, to which the FtT did not refer at all. There had been a suggestion to the HCP both from the Appellant (concerned about the possible deterioration in the effectiveness of his medication) and his grandmother, reporting his then recent symptoms, of a deterioration in his mental health. None of this is addressed in the FtT’s Reasons and the reader is left in the dark whether it was considered or, if it was, what the FtT made of it.

To give adequate reasons to deal with the evidence cited would indeed have required further questions to be asked and addressed in the Reasons, thus I am also in agreement with the Appellant’s representative and with Judge Smith giving permission.

The decision of the FtT is accordingly in error of law and is set aside. I am not in a position to substitute a decision, as further findings of fact will need to be made. Those will best be made by the FtT which includes a Medically Qualified Member and a Disability Qualified Member. My decision carries no implication for the outcome of the rehearing by the FtT, which is entirely a matter for the tribunal which will hear the case.