Appeal No. UA-2024-001660-PIP
Between:
SS
Appellant
- v -
SECRETARY OF STATE FOR WORK AND PENSIONS
Respondent
Before: Upper Tribunal Judge Stout
Decided on consideration of the papers
Representation:
Appellant: Tribune Legal Practice
Respondent: Miss J Blatchford (DMA Leeds)
On appeal from:
Tribunal: First-Tier Tribunal (Social Entitlement Chamber)
Tribunal Case No: 1664-4463-4921-6283
Tribunal Venue: Truro
Decision Date: 7 May 2024
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal was made in error of law. Under section 12(2)(a) and (b)(i) 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 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 previously.
The appellant is reminded that the new First-tier Tribunal can only consider the appeal by reference to their health and other circumstances as they were at the date of the original decision by the Secretary of State under appeal (namely 10 May 2022).
If the appellant has any further written evidence to put before the First-tier Tribunal relating to her health and other circumstances at that date, including any further medical evidence, this should be sent to the relevant HMCTS regional tribunal office within one month of the issue of this decision.
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 the First-tier Tribunal.
REASONS FOR DECISION
Introduction
The appellant appeals against the First-tier Tribunal’s decision of 7 May 2024 refusing the appellant’s appeal against the decision of the Secretary of State of 10 May 2022 that the appellant was not entitled to Personal Independence Payment (PIP) under Part 4 of the Welfare Reform Act 2012 (WRA 2012) and The Social Security (Personal Independence Payment) Regulations 2013 (SI 2013/377) (the PIP Regulations).
The First-tier Tribunal’s Statement of Reasons (SoR) was issued on 11 July 2024 and permission to appeal was refused by the First-tier Tribunal in a decision issued on 4 November 2024. The appellant filed the notice of appeal to the Upper Tribunal on 18 November 2024 (in time).
In a decision issued to the parties on 2 January 2025, I granted the appellant permission to appeal. The Secretary of State in response to the appeal indicates the appeal is supported and invites the Upper Tribunal to allow the appeal and remit it to a new Tribunal for re-hearing. The appellant is content with that course, and both parties are content that I should make a decision on the papers. I am also satisfied that this appropriate.
Background and the First-tier Tribunal’s decision
This case was previously the subject of a successful appeal to the Upper Tribunal (UA-2023-000740-PIP). Judge Butler decided that the First-tier Tribunal had erred in law on that first occasion by, among other things, failing adequately to consider the evidence as to the appellant’s levels of pain when carrying out the relevant activities and to apply the Upper Tribunal decision in PS v SSWP [2016] UKUT 0326 in that regard. The case was remitted to the First-tier Tribunal for re-hearing before a new panel.
The new panel found that the appellant had a number of health conditions/disabilities, including long Covid, asthma, insomnia, hypermobility, dyslexia, depression and fibromyalgia. The panel noted that the appellant was until July 2022 was employed as a production operative in a factory and worked 30 hours per week over four days, involving walking the factory floor, lifting heavy items and manual assembly while seated and climbing high ladders. She walked 3000 steps per day, which the Tribunal stated was “no more than about 3 miles”, wearing protective clothing including stell top-capped shoes. The Tribunal also noted that between August 2022 and early 2023 the appellant worked in a diner, a store and then a pub, in the latter working at least 40 hours per week doing around 15,000 steps per day.
The First-tier Tribunal awarded the appellant 2 points on activities of daily living (8b - reading) and 4 points on mobility activities (2b - moving around). However, this was insufficient to entitle her to either component of PIP so the decision of the Secretary of State was affirmed.
The grounds of appeal
The appellant, through her representatives, advances five grounds of appeal:-
Ground (a) is that the First-tier Tribunal misdirected itself in law by failing to apply regulation 4(2A) of PIP Regulations and PS v SSWP (PIP) [2016] UKUT 326 (AAC) and failing to consider when daily living and mobility activities were conducted with stoicism, under duress, pain or discomfort.
Ground (b) is that the First-tier Tribunal misdirected itself in law by failing properly to apply regulation 7 and TR v SSWP (PIP) [2015] UKUT 626 (AAC),[2016] AACR 23 (PIP).
Ground (c) is that the Tribunal failed to take into account a relevant matter by giving too much focus on the appellant’s ability in the work place when it should have been considering what she could do at home.
Ground (d) is that the Tribunal made findings of fact not supported by the evidence in that it “made an inference that the appellant could walk 3000 steps and 15000 steps, allegedly from the appellant’s testimony at the oral hearing. Yet the appellant has provided witness statements from witnesses who described the appellant’s struggles in the workplace, and how the appellant tried to mask these difficulties”.
Ground (e) is that the First-tier Tribunal failed properly to exercise its inquisitorial jurisdiction to make findings about the extent to which her mother assists her at home and the extent to which this is because the appellant suffers post exertional malaise/fatigue rather than through “choice”.
Ground (f) was that the disability member of the panel pursued an unfair line of questioning at the hearing.
In granting permission to appeal, I made the following observations about the grounds advanced:
I agree that [grounds (a) to (e)] are, taken together, arguable errors of law in the decision. In particular, it is concerning that, despite the basis on which the appeal was remitted, this Tribunal has not made any express reference to the case law and had not specifically addressed regulation 7 or TR at all in considering whether the appellant is able to carry out the various activities at a time when they can reasonably be expect to be carried out and as often as they can reasonably be expected to be carried out.
It is also particularly arguable that the Tribunal has failed properly to take into account the evidence of the appellant and witnesses (see especially F7-F9) as to the extent that she struggles at work. I agree with the appellant that on the face of the decision it appears that the Tribunal was under the impression that the appellant was able to carry out demanding work every day without difficulty. However, the Tribunal could not reasonably have reached that conclusion without considering and giving reasons for rejecting the evidence of the appellant and her witnesses in that regard.
It is also particularly arguable that the Tribunal has failed to make adequate findings of fact, or to give adequate reasons for concluding that the appellant ought reasonably to be able to undertake activities of daily living in the evenings and that she is not doing so out of ‘choice’. Following the guidance in TR, the Tribunal arguably needs to consider whether the appellant is acting reasonably in working, or seeking to work, as she does and, if so, whether she is able, having been to work during the day, to carry out the activities of daily living that it is reasonably necessary for a working person to carry out in the evening. To the extent that the Tribunal rejected the appellant’s evidence as to post-exertional malaise, it needed to give adequate reasons for doing so, which it arguably has not done.
Given my views on the merits of Grounds (a)-(e), I do not need to consider Ground (f), but I do not formally limit the grant of permission.
Why I am allowing this appeal
In my judgment, the First-tier Tribunal has materially erred in law in its approach to the appellant’s case. The error(s) arise compendiously from the grounds of appeal, which (like the Secretary of State), I take together.
Regulation 4(2A) of the PIP Regulations provides that a claimant is to be assessed as satisfying a particular descriptor in relation to each of the mobility and daily living activities in Schedule 1 only if the claimant can carry out the activity safely, to an acceptable standard, repeatedly and within a reasonable time period. There are then specific definitions in regulation 4(4) for the terms “safely”, “repeatedly”, and “reasonable time period” (but no definition of “to an acceptable standard”):
‘safely’ means in a manner unlikely to cause harm to C or to
another person, either during or after completion of the activity;
‘repeatedly’ means as often as the activity being assessed is
reasonably required to be completed; and
‘reasonable time period’ means no more than twice as long as
the maximum period that a person without a physical or mental
condition which limits that person’s ability to carry out the
activity in question would normally take to complete that
activity.
Regulation 7 deals with an aspect of variability and lays down a general rule that a claimant will satisfy a point scoring descriptor if his inability to perform the relevant task in question exists for more than 50% of the days of the assessment period.
In PS v SSWP [2016] UKUT 0326 (AAC), Judge Markus KC approved and followed the decision of Judge Parker in CPIP/2377/2015 to the effect that levels of pain and discomfort must be taken into account in deciding whether a claimant can carry out an activity “to an acceptable standard”. Those decisions acknowledged that even a claimant who “forces himself to walk quickly and repeatedly” (so that he is carrying out the activity “repeatedly” and “within a reasonable time period” for the purposes of regulation 4(2A)) may still not be carrying out the activity “to an acceptable standard” if he is ‘forcing’ himself to do so “through stoicism, despite a very high level of difficulty caused by matters such as pain, breathlessness, nausea or cramp”.
In TR v SSWP (PIP) [2015] UKUT 0626 (AAC) Judge Hemingway considered the question of how regulation 7 is to be applied where a claimant’s ability fluctuates not only day to day, but during the course of a single day. He held (at [32]-[34]):
…for a descriptor to apply, on a given day, then the inability to perform the task or function must be of some significance, that is to say something which is more than trifling or, put another way, something which has some tangible impact upon a claimant’s activity and functioning during a day but not more than that. So, by way of illustration, to use the example given in the PIP Assessment Guide, if a person were to take his painkilling medication at the start of the day and it was to take effect quickly, so that his normal daily routine would not be inhibited in any way, then the relevant descriptors, in this context perhaps those relating to functions such as dressing, washing and toileting, would not be satisfied such that no points would be scored. If, however, the medication did not start to work for a period such as to delay his going about his daily business then it would be satisfied. Such a claimant, having taken his medication, could not be expected to await embarking upon his washing, dressing and toileting for a significant period for his medication to take effect. This, again, would seem to be in accordance with the overall legislative intention and seems to me to be consistent with the Government’s response.
It may be, though, that with respect to at least some of the descriptors there will be a little more to consider. With respect to matters such as washing, dressing and toileting these are functions which, in general, will obviously need to be performed at some point during each 24 hour period. The position with respect to venturing out-of-doors, for example, might be somewhat different. A person might, for example, simply have a lifestyle as a matter of choice not linked to disability which does not involve venturing out-of-doors during periods of dusk or darkness at all. So, in such a case, there may have to be a factual enquiry as to whether it is the disabilities or something else which is preventing such an activity. That is probably why Ms Pepper suggests, in this case, that there will need to be findings about the journeys the appellant embarks upon to and from work. However, it seems to me that detailed inquiries of that nature would be rare. Many people may tend to venture out-of-doors during the hours of daylight more than during the hours of darkness. Nevertheless, there are many reasons why a person might want to venture out after dark perhaps, dependent upon taste, to attend night school classes, or to visit the theatre, restaurants or perhaps even public houses. These activities might not be pursued every day and might indeed be pursued only rarely but if a person is effectively debarred from following the route of an unfamiliar journey or a familiar one without another person, an assistance dog or an orientation aid, which is in part
what this appellant is contending, during the hours of dusk or darkness, then that person would not have to show, for the descriptor to be satisfied, that they would wish to undertake such a journey every day or anything like that but would only have to show that the particular disability which impacts upon them is sufficient to mean that that option is not, without the necessary assistance, available to them such that their lifestyle is restricted to more than a trivial extent.
The key to all of this is the definition of repeatedly. In the examples above, it cannot properly be said that a claimant is able to wash, dress and attend to his or her toileting as often as the relevant activities are reasonably required to be completed if he or she is obliged to wait for a disruptive period of time until painkillers take effect. It cannot properly be said that a claimant is able to follow the route of a journey repeatedly if he or she cannot do so for a part of each day such that the claimant is obliged to live a restricted lifestyle.
In AE v SSWP [2024] UKUT 381 (AAC), I applied Judge Hemingway’s guidance in TR to a case involving a claimant with Chronic Fatigue Syndrome (CFS) who was in employment, and whose evidence was that she was too tired on days that she worked to undertake a number of the activities of daily living, including cooking simple meals in the evenings. I held as follows:
It follows from Judge Hemingway’s guidance in TR that in order to find that an activity 1 descriptor is satisfied on the majority of days in a particular period, the Tribunal needs to be satisfied that on the majority of days the appellant is able to prepare and cook a simple meal for herself at a time of day when it is reasonable for her to prepare a fresh cooked meal and after she has spent her day doing activities that it is reasonable for her to have undertaken. Although what is reasonable may vary from case to case, in the present case it could hardly be suggested that it was not reasonable for the appellant to work and, if it was reasonable for her to work, then the only reasonable time to expect her to cook a meal from fresh ingredients was in the evening. The Tribunal in this case proceeded on that basis, but what it lost sight of, in my judgment, was that the appellant’s ability to cook in the evening needed to be judged by reference to how tired she was after work. Given that the appellant’s evidence is that her CFS means that after work she is for a majority of days each week too tired in the evening to prepare a meal from fresh ingredients, it would only be if it was rational to reject that evidence as untrue that the Tribunal could find that the appellant did not require assistance to cook.
In this case, however, the Tribunal reasoned from the appellant’s functioning at work that she could prepare a meal in the evening. That reasoning simply does not address the appellant’s case that work makes her so tired that she is not able to function normally in the evening. In the context of this case, that reasoning is perverse, and it betrays the Tribunal’s failure properly to direct itself by reference to the correct legal principles.
In this case, in addition to the evidence from the appellant herself, the Tribunal had before it witness statements from her mother, and two work colleagues as to the difficulties the appellant experiences coping both at home and at work, including pain, fatigue and variability in her functional ability from day to day.
In scrutinising the judgment of a First-tier Tribunal, the Upper Tribunal is required to read the judgment fairly and as a whole, remembering that the First-tier Tribunal is not required to express every step of its reasoning or to refer to all the evidence, but only to set out sufficient reasons to enable the parties to see why they have lost or won and that no error of law has been made: cf DPP Law Ltd v Greenberg [2021] EWCA Civ 672 at [57] (a case dealing with the employment context, but equally applicable here). That case also makes the point (at [58]) that where the First-tier Tribunal has correctly stated the law, the Upper Tribunal should be slow to conclude that it has misapplied it.
In this case, the First-tier Tribunal referred at [25] of the SoR to the need to consider regulation 4(2A) of the PIP Regulations, and whether the appellant could undertake the activities safely, to an acceptable standard, repeatedly and within a reasonable time. However, the First-tier Tribunal did not refer to regulation 7, or to the case of PS or TR or any summary of the relevant principles from those cases. At [31]-[33] the First-tier Tribunal detailed the jobs that the appellant has undertaken, without even mentioning the evidence of her work colleagues (or the appellant) as to the difficulties that the appellant had undertaking that work.
When dealing with daily living activity 1 (preparing food), the First-tier Tribunal accepted that as a matter of fact the claimant did not cook on the majority of days, but concluded that this “was a choice” because “she had a number of physically demanding jobs”. The Tribunal thus reasoned directly from the fact that the claimant was able to work that she could also prepare a simple meal at a reasonable time of the day. This is the same error as the First-tier Tribunal committed in AE. The Tribunal has failed to ask itself (and/or to give adequate reasons for concluding) whether it is reasonable for the claimant to work and, if so, whether she is as a matter of fact able, on a majority of days in the week, to cook herself a simple meal from fresh ingredients at a reasonable time of the day, safely, to an acceptable standard (taking into account pain and fatigue) and within a reasonable time. The Tribunal has also failed to take into account (and/or to give adequate reasons in respect of) the evidence of the appellant, her mother and work colleagues as to her levels of pain and fatigue and its relevance to this daily living activity.
The same errors have also affected the Tribunal’s conclusion in relation to daily living activity 4 (washing and bathing), where the Tribunal has also reasoned from what it perceived as her ability to work that she ought to have been able on the majority of days to wash without her mother’s assistance. The Tribunal has also not explained why it has rejected her case that she requires an aid for washing and bathing, given her evidence that she cannot stand to shower and needs a grab bar to get in and out of the bath.
It may be that these errors have also affected other aspects of the Tribunal’s decision as the Secretary of State suggests, although I am not convinced. In particular, it seems to me that, so far as mobility activity 2 is concerned (moving around), the Tribunal has at [56] properly taken account of the appellant’s evidence of pain while mobilising in awarding her 4 points on the basis that, despite engaging in work that involved her being on her feet for considerable periods each day, it accepted that she could only mobilise 50-200 metres safely, to an acceptable standard within a reasonable period of time. In this respect, the First-tier Tribunal essentially accepted the appellant’s case as it was set out in her notice of appeal (p 5).
However, it is not necessary to identify any additional errors in the First-tier Tribunal’s decision. If the appellant does require assistance to prepare a simple meal on the majority of days, that would score 4 points, and if she requires assistance or an aid to wash, that would score 2 points. Together with the 2 points she scored for reading, that would give her sufficient for an award of the daily living component of PIP at the standard rate. It will be for the Tribunal at the remitted hearing, however, to decide whether or not, when the evidence in relation to all the daily living and mobility activities is properly assessed in accordance with the legal principles I have set out above, the appellant scores sufficient points for an award of PIP or not.
Holly Stout
Judge of the Upper Tribunal
Authorised by the Judge for issue on 24 April 2025