HN v Secretary of State for Work and Pensions

The Appellant HN (through her mother and appointee AN) has appealed against the decision of the First-tier Tribunal (“the F-tT”). In a decision dated 12 April 2022, the Secretary of State for Work and Pensions (“the SSWP”) decided that she was not entitled to either component of an award of Disability Living Allowance (“DLA”). The Ft-T sitting in Rochdale on 21 February 2024 allowed the appeal, determining that while the Appellant was not entitled to the mobility component of DLA, she was entitled to the lowest rate of the care component of DLA from 19 January 2022 until 23 May 2025.

She was given permission to appeal this decision by Upper Tribunal Judge Smith on 17 February 2025.

By detailed submissions filed on 7 April 2025, the Secretary of State’s representative has supported the appeal, saying that there was an error of law in the tribunal’s decision and inviting the Upper Tribunal to send the case back to the tribunal for rehearing. The Appellant agrees and has not made any further representations on the legal issues in the appeal in reply.

In those circumstances, although the Appellant has not consented to a decision without reasons, I can state my reasons for allowing the appeal quite shortly. It is not necessary to set out the history of the case or to analyse the evidence and arguments in detail.

Neither party has asked for an oral hearing and I am satisfied that I can dispose of this appeal fairly on the papers.

Why I have set the First-tier Tribunal’s decision aside

I have set the tribunal’s decision aside, because I agree with the Upper Tribunal Judge who granted permission, and with the Secretary of State’s representative, that the First-tier Tribunal failed to make sufficient findings of fact and to consider (or to show by their reasoning that it had considered) all the relevant evidence before it.

When she gave permission to appeal, Upper Tribunal Judge Smith wrote that it was arguable that the F-tT “materially erred in law in its handling of its consideration of both the mobility and care components of DLA in this appeal.”

She continued:

“In the first instance, it is arguable that the FtT made insufficient findings of fact in relation to the Appellant’s disabilities/medical conditions, the needs arising from those conditions (if any) and whether any such needs are substantially in excess of the normal requirements of a child of a similar age who does not have medical conditions. In the absence of such findings, it is arguably difficult to fully comprehend the conclusions reached by the FtT and to be assured that it was entitled to reach the conclusions that it did.

In relation to the mobility component, I find it arguable with a realistic prospect of success, that the FtT made insufficient findings of fact in order to properly consider the test to determine whether the Appellant was “virtually unable to walk”. In particular, this relates to findings on the distance, speed, length of time and/or manner of walking, coupled with any degree of discomfort. Consequently, it could be argued that the FtT misdirected itself in reaching the conclusion that the Appellant did not meet the test for eligibility to the mobility component of DLA.

In relation to the care component, it is arguable that the FtT made insufficient factual findings about the Appellant’s speech and language delay and/or learning difficulties such that there was limited consideration of what (if any) attention was required by the Appellant in this regard throughout the day. Had it done so, this may have made a difference to the outcome decision in respect of the care component of DLA.”

As explained, the SSWP’s representative has now filed submissions agreeing with each of these points and accepting that they are not merely ‘arguable’ but did amount to errors of law.

In particular it is said:

I agree. Overall, there is a failure to make sufficient findings of fact or to set out reasoning in sufficient detail to allow the parties, including the Appellant, to understand whether the issues arising under the descriptors were fully considered, why her case was not accepted or what the F-tT made of the evidence relied upon.

As a result of this error of law, the decision will be set aside and remitted to the First-tier Tribunal for a fresh hearing.

What will happen at the rehearing

For the benefit of the Appellant, this is the effect of the decision in KK to which I have referred in my directions.

The tribunal must follow the directions I have given.

The rehearing will not be limited to the grounds on which I have set aside the tribunal’s decision. The tribunal will consider all aspects of the case, both fact and law, entirely afresh.

Nor will the tribunal be limited to the evidence and submissions that were before the tribunal at the previous hearing. It will decide the case on the basis of the relevant evidence and submissions made at the rehearing.

The tribunal must come to its own conclusions on the issues of both fact and law that it considers. Nothing in my decision or in my reasons for it is an indication of the likely outcome of the rehearing. Nor will the tribunal be bound by any conclusions of fact or law reached by the tribunal in the decision that I have set aside.