GT v The Secretary of State for Work and Pensions

GT made a claim for personal independence payment (PIP) on 28 June 2022. The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, asked GT to take part in a telephone medical assessment on 18 October 2022. Having received advice from that assessment, on 03 November 2022 DWP decided to award GT descriptor 7.b (2 points) for daily living activities. As the threshold for an award of either component of PIP is 8 points, DWP refused GT’s claim.

GT appealed to the First-tier Tribunal on 20 May 2023. Her appeal was decided following hearing at the Romford venue on 23 April 2024. GT attended in person with a friend for support. The First-tier Tribunal (“FTT”) awarded GT descriptor 4.b (2 points) and 7.b (4 points). The FTT maintained the decision to award GT no points for mobility activities. As a result, GT scored 6 points for daily living activities and 0 points for mobility activities. The FTT decided GT was not entitled to PIP and refused her appeal.

On 28 August 2024, GT applied to the Upper Tribunal for permission to appeal against the FTT’s decision. In a decision dated 20 December 2024, I granted GT permission to appeal against the FTT’s decision on the basis it was arguable the FTT had made one or more of the following errors of law:

Mrs Hawley is the Secretary of State’s representative in these proceedings. She supports the appeal to the Upper Tribunal in a helpful written submission dated 24 February 2025. Mrs Hawley invites the Upper Tribunal to set aside the FTT’s decision dated 23 April 2024 for containing material errors of law, for the reasons set out below.

Adequacy of FTT’s reasoning: Mrs Hawley submits that while the FTT set out its findings of fact and conclusions at paragraph 6 to 20 of its Statement of Reasons, these appear simply to repeat the evidence set out in the PA4 medical report dated 18 October 2022 or what GT had said. The FTT did not make actual findings in relation to GT’s reported difficulties when undertaking the claimed PIP daily living and mobility activities. Mrs Hawley submits the FTT failed to use its inquisitorial function to make adequate findings about whether GT experienced difficulties undertaking the PIP activities, including applying the test under rule 4(2A) of the 2013 regulations.

Mrs Hawley also argues that the FTT’s Statement of Reasons does not appear to explain the decision the FTT made. The Statement of Reasons stated DWP awarded GT 2 points for daily living, and that the FTT awarded a further 4 points under the Communicating activity. This did not reflect the factual background - that DWP had already awarded 2 points for that activity. Nor did it clearly explain the FTT’s decision, which increased the points awarded for the Communicating activity (by 2), and awarded new points elsewhere for the activity of Washing and bathing. Paragraph 21 of the Statement of Reasons largely restated the conclusions the FTT reached, not the reasoning behind it.

Mrs Hawley submits the FTT has also not explained why it decided to award GT descriptor 4.b (2 points) for Washing and bathing. She characterises the detail of the explanation for awarding descriptor 7.c (4 points) as scant and somewhat confusing. She argues that overall, the reader is left in the dark overall as to the FTT’s fact finding and reasons for its decision.

Mrs Hawley submits the FTT did not make clear findings of fact about the activity of Engaging with other people face to face or provide reasoning about why GT did not score any points for that activity. GT had described difficulties with this activity in her SSCS1 appeal form, but the FTT had not engaged with them. Mrs Hawley observes that the FTT wrote that GT can talk to health professionals and colleagues, clients and managers. However, it did not comment on GT’s work pattern, which was hybrid, and involved her only going to her workplace once or twice a month. GT therefore would not be engaging with other people face to face through that work for the majority of the required period. Nor did the FTT make findings about, or comment upon, GT’s evidence that she would become anxious at work because she had to disclose her hearing impairment.

Mrs Hawley submits that although the FTT is entitled to give whatever weight to the evidence it chooses, including resolving conflicts in evidence, it must, in the first instance, explore and consider this in a holistic manner and provide sufficient reasons about it. Mrs Hawley argues that the Statement of Reasons contains a distinct lack of reference to, and analysis of, the evidence GT gave about the impact and effects of her hearing loss, anxiety and depression, on her ability to carry out the PIP activities.

Mrs Hawley does not support the appeal on the issue of whether GT could carry out PIP activities “safely”, as required by regulation 4(2A) of the 2013 regulations. Mrs Hawley submits that while the FTT has not adequately explained why it awarded GT descriptor 4.b (2 points) for Washing and bathing, one can reasonably assume this reflects Upper Tribunal case law relating to GT’s hearing impairment affecting her ability to carry out that activity safely (KT and SH v SSWP (PIP) [2020] UKUT 252 (AAC)).

Mrs Hawley submits the FTT did not make an error of law by concluding GT did not reasonably require an aid when cooking, on the basis she would be sufficiently close to the food being prepared to monitor it and make sure it did not burn. Mrs Hawley submits that the risk to GT’s safety in terms of hearing a smoke alarm is reduced significantly due to the natural supervision occurring during the cooking process to make sure the food is cooked and does not burn.

Having received Mrs Hawley’s written submissions, GT indicated she does not wish to make any further representations.

Neither party requested an oral hearing of the appeal. I took these preferences into account. I considered the appeal file. I decided the interests of justice did not require an oral hearing. The parties agree the FTT made were material errors of law. It was proportionate to determine the appeal on the papers.

At the permission stage, I only needed to be persuaded that it was arguable with a realistic (as opposed to fanciful) prospect of success that the FTT had made an error of law in a way that was material.

At this substantive stage, I need to be satisfied on the balance of probabilities that the FTT did make an error or errors of law that were material.

I am satisfied, on the balance of probabilities, that the FTT made material errors of law in relation to the appeal grounds addressed by Mrs Hawley at paragraphs 5 to 9 above, dealt with in more detail by her submission dated 24 February 2025.

Regarding the FTT’s assessment of safely, I have taken Mrs Hawley’s submissions into account. Having considered them carefully, I do not agree with Mrs Hawley’s submission that the FTT did not make an error of law on this issue. I have decided that it did and that it was material.

The nature of GT’s hearing impairment, confirmed by the medical evidence, together with her evidence that she could not always hear alarms, meant the FTT needed to explore that issue as part of determining whether she could perform the various PIP activities safely.

The FTT has not articulated the test it needed to apply, and it has not made the necessary factual findings to be able to support its conclusions that GT could perform the PIP activities safely. Such factual findings include, for example, the level of GT’s hearing, what this was like when wearing her soft band cochlear implant, whether there were circumstances in which she could not use that implant (and if so, when), her ability to hear alarms on the majority of days in the required period for PIP, and whether there had been moments of potential harm that had arisen as a result of her hearing impairment (and if so, what happened or might have happened). Such factual findings will shape the application of the test in RJ, GMcL and CS to the individual PIP activities.

Without the benefit of the necessary factual findings for GT’s circumstances, it cannot be said that there was no real possibility of harm occurring if GT carried out specific PIP activities. Mrs Hawley’s analysis about preparing food assumes the fire in question occurs in the room where food is prepared. It might, however, not be in the kitchen and might occur elsewhere in the home. The circumstances in KT & SH acknowledged the appellants would be in a bathroom with the door closed, and the fire might occur elsewhere. One cannot properly determine whether GT could perform the PIP activities safely without providing the essential factual findings and reasoning to explain the conclusion reached.

Given the FTT failed to address these matters in its decision, I am satisfied that it made an error of law on this ground. I am also satisfied it is material, because GT only needed to score 2 more points for PIP daily living activities to meet the threshold for an award. The error of law is therefore capable of making a difference to the outcome of her appeal.

Having decided the FTT’s decision involved material errors of law, it is appropriate to exercise my discretion to set aside the Tribunal’s decision dated 23 April 2024 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act provides that I must either remit the case to the First-tier Tribunal with directions for their reconsideration or remake the decision.

Neither party invited me to remake the FTT’s decision. In any event, it is necessary for facts to be found. The First-tier Tribunal is best placed to evaluate the evidence, including using its medical and disability expertise, and to make appropriate findings of fact.

I therefore remit GT’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about whether she should be entitled to PIP at the date of DWP’s decision of 03 November 2022.

Although I have set aside the FTT’s decision dated 23 April 2024, I am not making any findings, or expressing any view, about whether GT should be entitled to PIP. The next tribunal will need to hear evidence, make its own findings of fact and provide its reasoning for the decision it reaches.