NJ v The Secretary of State for Work and Pensions (PIP)

This case is remitted to the First-tier Tribunal (“FtT”) for reconsideration at an oral hearing.

It must be heard by an entirely fresh panel.

The FtT must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the FtT’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. While the FtT will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.

The new FtT is not bound by the decision of the previous FtT. Depending on the findings of fact it makes, the new FtT may reach the same or a different conclusion to the previous FtT. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the FtT to which this case is remitted.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the FtT.

Neither party requests an oral hearing. I am satisfied that I can deal with the case fairly on the papers, and that it is in the interests of justice that I do so.

The respondent’s submissions were received late and they ask for an extension of time up to the date of receipt. As they support the appeal and the appellant has no concerns I grant that extension.

The appellant was diagnosed with ADHD in November 2020. She made a claim for PIP on 2 July 2021 and, following a telephone assessment on 16 November 2021 and by way of a decision letter dated 7 December 2021, was awarded no points for any descriptors. That decision was upheld on mandatory reconsideration and following the appeal to the FtT.

The appellant appealed to the Upper Tribunal and on 14 March 2024 Upper Tribunal Judge Brewer gave permission to appeal

Giving permission, Judge Brewer said this:

Judge Brewer highlighted a lack of clarity over what was said about the effect of medication, when medication may have been stopped, and a lack of analysis of the evidence of impact on education, employment, friendships and money management.

The respondent says:

They identify the same concerns as Judge Brewer, namely the treatment of the evidence around medication, and the overreliance on the appellant’s education and work history to the possible exclusion of other evidence suggesting impaired functionality.

The appeal must be allowed because it is unclear that the tribunal have assessed all of the evidence adequately. This may be a question of a lack of reasons or it may be that the substantive analysis was not sufficiently rigorous.

So far as the substantive analysis is concerned, all of the relevant evidence that bears on each issue (so, each claim to be impaired in respect of a particular activity) must be weighed and then assessed as a whole. In this case there appears to be evidence pointing to impairment and other evidence that might suggest no relevant impairment. All of that must be held in the mind at once and a conclusion reached. It is perhaps understandable, when the FtT then seeks to explain that conclusion in an SoR created after the event, if it highlights the factors that supported rather than that tended to contradict its finding. The danger with that is that if countervailing factors are not mentioned it is not possible to be certain they were considered at all, or if considered what was made of them. The reader cannot be sure the necessary holistic analysis took place.

I would add here an additional point not highlighted in the grounds of appeal. It seems that the FtT did not accept the appellant’s oral evidence (although that is not clearly spelled out). That is a matter for them, as is all assessment of all formed of the evidence before them. However it would be necessary as a matter of fairness to put at least the key reasons for this to her and to see what she says in reply. For example the FtT say “Despite having the condition since childhood, the appellant was able to obtain a first class undergraduate degree and a Masters degree. This requires considerable levels of concentration and motivation.” That is a relevant observation. But it would be an error of law to base a finding that the appellant’s evidence as to a lack of concentration and motivation was inaccurate because it was seemingly inconsistent with her educational history without putting the point to her in a hearing. She may have an explanation, or she may want to argue the point is not as relevant as the FtT might have thought. It may be that that was done, but if it was that is not recorded in the SoR.

Moving on to reasons, I have well in mind the Senior President of Tribunals practice direction and in particular these passages:

In this case the issue is that it is not possible to see how the evidence for and against impairment was weighed. A lengthy discussion is not needed, but an indication of the main evidence on each point, what was made of it, (being careful to avoid linear reasoning) and the conclusion stemming from what was made of the evidence is needed.

Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I therefore set the FtT decision aside and remit the case to be reconsidered by a freshly constituted panel. I stress that this appeal having succeeded carries no implication for whether the FtT will or will not reach a decision that is more favourable to the appellant. That will be a matter for it and all outcomes are possible.