Appeal No. UA-2024-001266-PIP
Between:
J.H.
Appellant
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Wikeley
Decided on consideration of the papers
Representation:
Appellant: In person
Respondent: Mr B Wadham, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-Tier Tribunal (Social Security and Child Support)
Tribunal Case No: SC068/23/01985
Digital Case No: 1692620550567206
Tribunal Venue: Liverpool
Hearing Date: 13 February 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 13 February 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 4 May 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 will have to 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 and 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
The full history of the Appellant’s PIP claims is set out in the Secretary of State’s written submission to the Upper Tribunal. In the decision under appeal, the FTT confirmed the DWP’s decision to make an award of the standard rate of the PIP daily living component (10 points) for the period from 4 May 2023 to 3 May 2027 but no award in respect of mobility (0 points).
The grounds of appeal
The Appellant’s grounds of appeal focussed on daily living activity 9 (engaging with others). I gave the Appellant permission to appeal, observing as follows:
The Appellant’s grounds of appeal are arguable. In practice the outcome of the appeal turned on whether the Appellant qualified for PIP daily living descriptor 9(b) (needs prompting to engage with others) or 9(c) (needs social support to engage). It may be that the Appellant is really seeking to re-argue the factual merits of the case. I also recognise that issues of credibility are questions of fact for the First-tier Tribunal to determine. Be all that as it may, it may be arguable that the FTT here failed to find sufficient facts or give adequate reasons for its decision and so possibly erred in law.
However, Mr B Wadham, who is the Secretary of State’s representative in these proceedings, supports the appeal. He sums up his analysis as follows (SOR = Statement of Reasons):
After reviewing the totality of the evidence and the SOR it would appear the Tribunal have not adequately explained how they reached their decision that daily living descriptor 9b is satisfied rather than descriptor 9c. Paragraphs 14 to 23 of the SOR show the Tribunal’s consideration of their decision regarding daily living activity 9, and concluded that the claimant did not require social support to engage with other people. The Tribunal sets out in paragraph 14 of the SOR that the claimant told the Tribunal they required social support in order to engage with other people, and the Tribunal stated that social support is defined as “support from a person trained or experienced in assisting people to engage in social situations”. The Tribunal did not mention this further until they concluded that the claimant did not require social support in paragraph 23 of the SOR.
There are several references in the SOR to the claimant’s friend providing them with support due to their mental health condition. In paragraph 15 of the SOR it was recorded that the claimant would go to the supermarket with their friend at 2 a.m. because they did not like crowds. At paragraph 19 of the SOR it is stated that the claimant would attend the Probation Service office with their friend. There was also mention of an incident involving the Police, and a subsequent court hearing in paragraph 18. These examples largely relate to mobility activity 1, however, arguably scenarios such as these would likely also involve some form of face to face engagement. There is no indication in the SOR that this was considered, nor does there appear to be any consideration of what help, if any, is being provided by the claimant’s friend during any potential interactions.
The claimant has been consistent in their reporting of receiving help from their friend. This position has been maintained by the claimant throughout the claim process, subsequent reviews, and appeal, although they have not previously provided much detail on the type of support provided by their friend. The claimant stated in their review questionnaire (AR1) that they do not mix with other people unless their friend is with them due to social anxiety [page 150 of the Tribunal appeal bundle], and reiterated this in their appeal grounds [page 1, Addition A of the Tribunal appeal bundle]. In this case, the claimant did specifically claim they required social support, and this was acknowledged by the Tribunal in paragraph 13. The Tribunal had accepted that the claimant required prompting for daily living activity 9 however, that alone should not have restricted the Tribunal from considering whether the claimant was being provided with social support from his friend, and if this was reasonably required.
The Supreme Court judgement SSWP v MM [2019] UKSC 34 (MM) considers the distinction between prompting and social support, and concluded that there can be an overlap between these when the prompting is delivered by a person who meets the definition of a giver of social support, which is to say they are trained or experienced in assisting people to engage in social situations, as outlined in Schedule 1, Part 1 of The Social Security (Personal Independence Payment) Regulations 2013. However, it continues that it is not enough for the claimant to just be receiving help from a person who meets the definition of a giver of social support. The claimant must only be able to engage if they have help from persons trained or experienced in assisting people to engage in social situations. If the help could be provided by somebody else who does not meet the definition of a giver of social support, then daily living descriptor 9c would not apply, and 9b would be appropriate. It is also noted that the support given does not need to be contemporaneous.
The claimant’s grounds for appeal to the UT expands on the evidence they have provided previously. In their grounds, the claimant has stated that their friend has relevant training, and has provided support for them for 18 years [page 34 of the UT appeal bundle]. As previously highlighted in paragraph 4.3 of this submission, there were opportunities for the Tribunal to consider how the claimant engages with people, and what support they are given. The claimant stated on multiple occasions that they have one friend who gives them social support. I also note that the claimant has had therapy sessions, including an online cognitive behavioural therapy (CBT) course where the claimant learned techniques to help them deal with their social anxiety and panic disorders [pages 32 - 33 of the UT appeal bundle]. The CBT course was mentioned in paragraph 14 of the SOR, but what this entailed does not appear to have been treated as significant, as the claimant indicated that the course had not been particularly helpful, which may have been a misinterpretation of the claimant’s oral evidence. Taking MM into account, it is somewhat surprising that the Tribunal did not seek to establish the impact of the counselling the claimant was receiving, and whether their friends had the training or experiencing to be considered a person who can provide social support. This omission calls in to doubt the Tribunal’s conclusion regarding daily living activity 9.
Having reviewed the SOR in its entirety, it is arguable that the Tribunal have erred in law. The fact the claimant needs prompting to engage with other people was accepted by the Tribunal, and the claimant specifically raised in their appeal that they were claiming for social support. In not establishing whether the prompting was being provided by somebody trained or experienced in assisting people to engage in social situations, and whether the claimant would still be able to engage with other people if somebody without training or experience were to give that support, the Tribunal have not adequately gathered the facts of the case. There is also the issue surrounding the therapy the claimant received, and what help this may provide. It is more likely than not that if the Tribunal had investigated further, additional information could have come to light, allowing a more reasoned conclusion on whether daily living descriptor 9b was still appropriate, or whether descriptor 9c should have been awarded, as was the claimant’s assertion. However, from the SOR, it seems that the claimant’s credibility was a significant concern for the Tribunal, which may have affected their evidence gathering. From the evidence available, and the Tribunal’s reasons in the SOR, it is not clear how the Tribunal have reached their decision. I therefore respectfully submit that the Tribunal has not adequately explained their reasons for confirming the SofS award of daily living descriptor 9b, and why descriptor 9c did not apply. This could be considered a material matter, as an increase to daily living descriptor 9c could satisfy the minimum threshold for an award of the mobility component.
I assume the reference to ‘mobility component’ in the final sentence of the passage above was meant to be a reference to the ‘enhanced rate’ (of the daily living component). I should also add that the Appellant has made no further observations on the substance of the appeal by way of reply.
Analysis: a summary
I agree with the analysis of the Secretary of State’s representative in his written submission supporting the appeal to the Upper Tribunal and as summarised above.
I am accordingly satisfied that the First-tier Tribunal erred in law for those reasons. I therefore allow the Appellant’s appeal to the Upper Tribunal and set aside (or cancel) the Tribunal’s decision. I therefore 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 May 2023, and not the position as at the date of the new hearing, which will obviously 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 4 May 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 28 November 2025