DF v Secretary of State for Work and Pensions

This case is remitted to the First-tier Tribunal for re-determination.

The tribunal that re-determines this appeal, against the decision of the Secretary of State dated 22 July 2023, must not include any member of the panel whose decision is set aside in the present Upper Tribunal proceedings;

If the Appellant wishes to put any further written evidence or argument before the First-tier Tribunal, this must be received by the First-tier Tribunal’s office within 28 days of the date on which these directions are issued;

The Appellant must inform the First-tier Tribunal in writing, within 28 days of the date on which these directions are issued, whether he intends to attend the rehearing of his appeal;

Directions 3 and 4 may be supplemented and/or varied by later directions by a Tribunal Judge in the First-tier Tribunal (Social Entitlement Chamber).

The Appellant applied for permission to appeal (“the application”) against a decision of the First-tier Tribunal (“FtT”) sitting in the Barnsley Law Courts on 18 October 2023, in respect of his claim for Employment and Support Allowance (“ESA”). On this date, the FtT allowed the Appellant’s appeal, and he was awarded ESA with limited capability for work. He sought permission to appeal on the basis that the FtT had erred in law by failing to find that he had limited capability for work related activity.

On 19 June 2025, I granted permission to appeal on three grounds. The Respondent made a written submission, dated 17 July 2025, which indicates support for the appeal on the third ground (only) and consents to a decision without reasons, as provided by Rule 40(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008, if I am to accept the submission in full. The Respondent also consents to a decision without reasons. Neither party requests an oral hearing of this appeal. In light of the views of the parties, I make this decision on the papers before me.

I accept the submission of the Respondent in its entirety. Having found as a matter of fact that the Appellant experienced anxiety, particularly in social situations, I find that the FtT failed to make sufficient findings of fact in relation to the effects of that anxiety and the extent to which these effects precluded him from engaging with other people, both familiar and unfamiliar. Consequently, the FtT’s conclusions in respect of activity 16 of Schedule 2 and activity 13 of Schedule 3 to the Employment and Support Allowance Regulations 2013 are in error of law. The errors are material as further findings may have impacted upon the Appellant’s award of ESA.

As requested by the Respondent and considering the further findings of fact required in this matter, I remit this appeal to be re-determined by a freshly constituted tribunal. I need not consider the other grounds of appeal on which permission was granted as this ground alone is sufficient for the decision to be set aside and the case to be remitted. Any other matters will be subsumed into the rehearing.