WH v Secretary of State for Work and Pensions (PIP)

The appeal relates to the personal independence payment (‘PIP’), in particular whether the appellant is entitled to the mobility component of PIP at the higher rate.

The appellant is a married army veteran aged 54 who is in receipt of a war pension. He suffered from fibromyalgia, post traumatic stress disorder, neurovascular syndrome, spondylitis, bursitis, pain in all toes, sleep disorder and restless leg syndrome.

The appellant had claimed PIP on 26 March 2016 and had been awarded the mobility component of PIP at the enhanced rate and the daily living component at the standard rate from 27 July 2016.

The award of PIP was reviewed and on 25 April 2023 a decision-maker decided that the appellant was entitled to an award of PIP with the mobility component at the standard rate and no daily living component. The appellant appealed against this decision broadly on the grounds that, in applying the PIP tests, the decision-maker had underestimated the effect of his disabling conditions.

On 15 August 2023 the First-tier Tribunal (‘FtT) dismissed the appellant’s appeal and confirmed the decision of 25 April 2023. The appellant had not requested an oral hearing of his appeal and the FtT came to its decision on the papers before it.

The appellant appeals against the FtT’s decision with the permission of a Judge of the Upper Tribunal and requests an oral hearing of his appeal. The grounds are that the FtT’s decision did not reflect the effect and extent of his health difficulties, bearing in mind that he had been awarded a war pension and universal credit by reason of his disability.

An appeal to a Judge of the Upper Tribunal will be successful only if the decision of the tribunal below is erroneous in point of law. There will be an error of law if the tribunal did not give adequate reasons for its decision.

The Secretary of State supports the appeal on the basis that the FtT gave insufficient reasons why it decided the matter in the appellant’s absence as required by regulation 27(1)(b) Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.

Rule 27(1) Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 is in the following terms:

In DT v. SSWP (UC) [2019] UKUT 268 (AAC) the Upper Tribunal said, in relation to rule 27(1)(b):

Although the Decision Notice at paragraph 11 refers to the FtT having considered the requirements of rule 27(1)(b) and in paragraph 6 of the Statement of Reasons for Decision the FtT records that the appellant had requested that his appeal be dealt with on the papers with no oral hearing there is no record of the reasons why the FtT decided to go ahead without a hearing. For this reason the FtT’s decision is wrong in law.

Upper Tribunal Judge Church granted permission to appeal on the grounds that, although the rules for eligibility for a war pension were different from the eligibility rules for PIP, the appellant’s disclosure in his form SSCS1 (which was before the FtT) that he was ‘87% disabled on my war pension due to all my conditions’ meant that it was arguable that the FtT should have requested more information about that award before making its decision or at least explained why it did not think it necessary to do so.

I agree with Upper Tribunal Judge Church. There is nothing in either the Decision Notice or the Statement of Reasons for Decision to show that the FtT considered the weight (if any) that should be attached to the appellant’s being in receipt of a war pension nor does it appear to have considered whether it should have requested further information about the basis of that award. Although, as Upper Tribunal Judge Church points out, the rules are different for an award on a war pension, the FtT should have investigated this aspect of the matter before dismissing the appeal. For this reason the FtT’s decision is wrong in law.

There is no need for me to hold an oral hearing of the appellant’s appeal to the Upper Tribunal as I am satisfied that the decision of the FtT was wrong in law and neither party is arguing to the contrary. My decision and directions are as set out above.