Appeal No. UA-2025-000664-PIP
Between:
C.T.M.
Appellant
by
M.M.
Appointee
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Wikeley
Decided on consideration of the papers
Representation:
Appellant: Appointee in person
Respondent: Ms U. Ali, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-Tier Tribunal (Social Security and Child Support)
Tribunal Case No: SC053/24/00310
Digital Case No: 1706283685965136
Tribunal Venue: Nuneaton
Hearing Date: 1 November 2024
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with this decision and the following directions.
DIRECTIONS
This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.
The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 1 November 2024.
The Appellant is reminded that the tribunal can only deal with the appeal, including his health and other circumstances, as they were at the date of the decision by the Secretary of State under appeal (namely 27 July 2023).
If the Appellant has any further written evidence to put before the tribunal and, in particular, further medical evidence, this should be sent to the HMCTS regional tribunal office within one month of the issue of this decision. Any such further evidence should relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).
The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.
These Directions may be supplemented by later directions by a Tribunal Legal Officer, Tribunal Registrar or First-tier Tribunal Judge.
REASONS FOR DECISION
Introduction
The Appellant’s appeal to the Upper Tribunal succeeds. There will need to be a completely fresh hearing of the original Personal Independence Payment (PIP) appeal before a new First-tier Tribunal (FTT).
The Upper Tribunal’s decision in summary and what happens next
I allow the Appellant’s appeal to the Upper Tribunal, which has the support of the Secretary of State’s representative. The decision of the First-tier Tribunal involves a legal error. For that reason, I set aside the Tribunal’s decision.
The Appellant’s case now needs to be reheard by a new and different First-tier Tribunal. I cannot predict what will be the outcome of the re-hearing. So, the new tribunal may reach the same, or a different, decision to that of the previous Tribunal. It all depends on the findings of fact that the new Tribunal makes.
The factual background
In summary, the Secretary of State’s decision-maker initially made an award of the enhanced rate of the daily living component of PIP for the period from 2 March 2021 to 20 December 2023, having scored the Appellant at 13 daily living points. There was no award made of the mobility component. However, on 27 July 2023 another decision-maker made a supersession decision, in the light of a new HCP report, awarding the Appellant 0 points for both daily living and mobility. The Appellant’s award of PIP therefore ceased with effect from 27 July 2023. The Appellant appealed to the FTT. The FTT, following a hearing ‘on the papers’, confirmed the DWP supersession decision under appeal.
The grounds of appeal
The Appellant’s mother (and appointee) applied for permission to appeal on his behalf. In short, she argued that the HCP had “twisted and lied” in her report, resulting in an unfair decision. I gave the Appellant permission to appeal to the Upper Tribunal, observing as follows:
The Appellant’s grounds of appeal as set out on Form UT1 seem really to be seeking to re-argue the factual merits of the case, in which case the appeal cannot succeed. However, I think it is right to give permission to appeal. I do so for two main reasons – although there may on closer scrutiny be other difficulties with the FTT’s decision.
The first reason is because of paragraph 1 of the FTT’s statement of reasons. This appears to be the sort of “protective essay” about the test for adequacy of reasons that was critiqued and criticised by Upper Tribunal Judge Poynter in CH v Secretary of State for Work and Pensions (PIP) [2020] UKUT 19 (AAC). However, I recognise that the inclusion of such a “protective essay” does not automatically render a decision as materially erroneous in law.
The second reason is that this was a case where the FTT felt it could proceed on the papers. This was despite the fact that the previous award of the PIP daily living component was based on a different HCP report which painted a rather different picture of the Applicant’s functioning. Given the nature of autism and the Applicant’s health conditions, and given the considerable disparity between the two HCP reports, should the FTT have considered adjourning for an oral hearing of the appeal?
Ms Ali, the Secretary of State’s representative in these Upper Tribunal proceedings, supports the appeal on the second ground. She argues that the FTT erred in law in deciding to proceed with the hearing on the papers without considering whether to adjourn for an oral hearing. She refers to case law which shows that “the FTT must acknowledge explicitly that it has considered both whether the parties have consented to a decision being made without a hearing and that it can fairly decide the appeal without holding one, and to explain why” (paragraph 10). She points out that consideration of rule 27 of the FTT procedural rules is a three-stage process, as set out in the case of MH v Pembrokeshire CC [2010] UKUT 28 (AAC).
Ms Ali sums up her analysis as follows (SOR = statement of reasons, DN = Decision Notice):
In paragraph 9 (iii) of the SOR the FTT state ‘As a result there was no oral evidence before the Tribunal which was unfortunate, because the more information available the greater the likelihood that the statement would be as accurate as possible. All that the Tribunal could rely on was the tribunal bundle, which included conflicting evidence’. It is clear that the FTT were conflicted in making their decision due to not hearing oral evidence from the appellant. I respectfully submit that there is insufficient evidence in the DN and SOR to show that the FTT considered the third stage whether to adjourn for an oral hearing, as to allow the appellant to provide evidence that would have confirmed the doubts the FTT had on the evidence before them. Having the appellant present at the hearing may have had a material difference to the outcome of the appeal.
Overall, the FTT were required to bear in mind throughout the hearing, whether or not an adjournment was necessary in order for the FTT to fulfil its investigative and inquisitorial role. There is no explanation given as to why the FTT found it appropriate to decide the issue on the papers, when questions around evidence were raised. There is also no explanation as to why the FTT found it fair and just to proceed, as per rule 2, the overriding objective, and rule 27(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. As held in paragraph 14 of CE/841/2010:
“A failure to explain expressly (or impliedly) why discretion was exercised in a particular way may, therefore, involve an error of law. This would leave the tribunal’s reasons open to attack for inadequacy. A bald statement that ‘the tribunal have considered the overriding objective in deciding to proceed on the papers’ is unlikely to be enough if there were clear and obvious factors which pointed the other way. The tribunal would then need to do more to show how it balanced the factors in deciding to go ahead.”
For completeness, I should add that the Appellant has no further observations on the substance of the appeal.
Analysis: a summary
I agree with the analysis of the Secretary of State’s representative in her written submission supporting the appeal to the Upper Tribunal on the second ground of appeal identified in the grant of permission to appeal.
I am accordingly satisfied that the First-tier Tribunal erred in law for that reason. I therefore allow the Appellant’s appeal to the Upper Tribunal and set aside (or cancel) the Tribunal’s decision.
I therefore also remit (or send back) the original appeal for re-hearing to a new tribunal, which must make a fresh decision.
What happens next: the new First-tier Tribunal
There will therefore need to be a fresh hearing of the appeal before a new First-tier Tribunal. Although I am setting aside the previous Tribunal’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to PIP and, if so, which component(s) and at what rate(s). That is a matter for the good judgement of the new Tribunal. That new Tribunal must review all the relevant evidence and make its own findings of fact.
In doing so, however, unfortunately the new Tribunal will have to focus on the claimant’s circumstances as they were as long ago as in July 2023, and not the position as at the date of the new hearing, which will obviously and regrettably be more than two years later. This is because the new Tribunal must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998). The decision by the Secretary of State, which was appealed to the FTT, was taken on 27 July 2023.
Conclusion
I therefore conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The case must be remitted for re-hearing by a new tribunal subject to the directions set out above (section 12(2)(b)(i)). My decision is also as set out above.
Nicholas Wikeley
Judge of the Upper Tribunal
Authorised by the Judge for issue on 30 October 2025