SM v The Secretary of State for Work and Pensions

SM made a claim for personal independence payment (“PIP”) on 19 July 2023. The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, asked SM to take part in a medical assessment by telephone on 04 October 2023. Having received advice from that assessment, on 15 October 2023, DWP decided that SM scored no points for either the PIP daily living or mobility activities. DWP therefore refused SM’s claim for PIP.

On 03 December 2023, SM appealed to the First-tier Tribunal. On 08 November 2024, a First-tier Tribunal (“FTT”) heard SM’s appeal by video at Fox Court, London. The FTT decided SM scored 10 points for the PIP daily living activities (descriptors 1.b, 3.b, 4.b, 5.b, and 6.b) but did not score any points for the PIP mobility activities. The FTT therefore allowed SM’s appeal to the extent that it awarded her the standard rate of the PIP daily living component from 19 July 2023 to 18 July 2023.

On 28 January 2025, the Upper Tribunal received an application from SM for permission to appeal against the FTT’s decision. In a decision darted 11 March 2025, I granted SM permission to appeal 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 has provided a helpful written submission dated 16 June 2025. I am grateful to Mrs Hawley for listening to the audio recording of the hearing on 08 November 2024. I note there were some difficulties in obtaining an accessible copy of that recording, and that this caused a delay in Mrs Hawley being able to provide written submissions.

Mrs Hawley supports the appeal and invites the Upper Tribunal to set aside the FTT’s decision dated 08 November 2024 for containing material errors of law, for the reasons set out below.

Evaluating the evidence about SM’s medical conditions adequately: Mrs Hawley observes from the hearing recording for 08 November 2024 that SM told the FTT the matters set out at paragraph 3(a) above. Mrs Hawley submits it is notable that when reaching its conclusions about SM’s mental health difficulties, the FTT does not appear to have addressed or commented on her oral evidence about her four-weekly online talking therapy sessions. Mrs Hawley submits this evidence is at odd with the FTT’s conclusion that SM had not discussed mental health difficulties with her GP. Mrs Hawley submits the FTT has made a material error of law by not adequately addressing the effects of SM’s mental health difficulties.

Failing to make adequate factual findings or provide adequate reasoning about SM engaging with other people face to face: Mrs Hawley quotes what the FTT wrote in paragraph 27 of its Statement of Reasons about SM not raising difficulties with relationships in her claim form or during the PA4 medical assessment and concluded no difficulties with this activity could be identified at the date of DWP’s decision. Mrs Hawley also quotes what the FTT wrote at paragraph 28, which linked socialising difficulties to experiencing pain but concluded that SM did not require prompting or social support to manage that activity.

Mrs Hawley submits that in reaching these conclusions, the FTT appears to have made limited findings about SM’s difficulties with the activity of engaging with other people face to face. She submits the FTT appears to have concluded SM’s difficulties arose after DWP’s decision and that any difficulties do not require prompting or social support. Mrs Hawley submits that given the evidence SM gave at the hearing (highlighted at paragraph 3(b) above), it is unclear how the FTT reached that conclusion. Mrs Hawley submits that given this evidence, it is unclear from the Statement of Reasons whether the FTT considered SM’s difficulties adequately, including whether within the meaning and application of regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 (“the 2013 regulations”). Regulation 4(2A) introduces requirements, including that a PIP activity can be undertaken “repeatedly” and “to an acceptable standard”. Mrs Hawley submits the FTT failed to make adequate factual findings or provide adequate reasoning about this activity and therefore made a material error of law.

Failing to make adequate factual findings or provide adequate reasoning about SM planning and following a journey: Mrs Hawley quotes from paragraph 31 of the Statement of Reasons, where the FTT wrote:

“31.

In her oral evidence, [SM] informed the Tribunal of a series of four or five incidents on public transport where she felt overwhelmed and dizzy. However, the Tribunal found that these incidents did not arise from an enduring mental health condition. Although the Tribunal accepted that [SM] experienced some anxiety, the evidence did not suggest she experienced overwhelming psychological distress as a result. It follows that [SM] did not need prompting to undertake a journey to avoid overwhelming psychological distress; nor [did] was she unable to undertake any journey due to overwhelming psychological distress. Similarly, [SM] did not have a cognitive impairment that would affect her ability to follow the route of a familiar or an unfamiliar journey. While she preferred to have another person with her outdoors, this was not to manage overwhelming psychological distress. It follows that the Tribunal found that [SM] could plan and follow the route of a journey unaided. 0 points were awarded for this activity.”

Mrs Hawley submit that these findings appear to be narrow and contradictory. The FTT noted that SM experienced four or five incidents on public transport where she felt overwhelmed and dizzy but concluded these did not arise from her mental health difficulties and she did not experience overwhelming psychological distress. Mrs Hawley submits the FTT’s findings appear to contradict its acceptance that SM experienced anxiety undertaking journeys, had talking therapy every four weeks for her anxiety, as well as failing to explain what it made of SM’s oral evidence that she was always experienced on journeys and if the tube trains were busy she would either get off them or wait for the next one to arrive, and she would reschedule an appointment to avoid attending it alone.

Mrs Hawley submits the FTT should have used its inquisitorial duty to establish the effects of SM’s anxiety on her to evaluate whether she experienced overwhelming psychological distress. She argues this is particularly relevant given SM told the FTT there had been journeys she could not complete (relevant to whether any distress was overwhelming). Mrs Hawley submits the FTT has made an error of law in failing to provide sufficient factual findings to support and explain its decision that SM did not experience overwhelming psychological distress when following the route of a journey. Mrs Hawley argues further findings are needed about the impact of this activity on SM, including by considering regulation 4(2A) of the 2013 regulations.

Failing to make adequate factual findings or provide adequate reasoning about SM moving around: Mrs Hawley refers to paragraph 32 of the FTT’s Statement of Reasons, which stated:

“32.

The Tribunal accepted [SM’s] oral evidence that she could walk to and from a crossroads near to her home, which was a distance of approximately 184 metres each way. This was consistent with the information recorded by the findings and HCP who recorded that [SM] said she could walk for five to ten minutes before she needed to rest. The Tribunal accepted that [SM] may walk more slowly than an average pace, but the evidence did not suggest her pace would be more than twice as long as the maximum period that a person without a physical condition that limited their ability to move around.”

Mrs Hawley observes the hearing recording confirms the FTT did not ask SM how long it would take her to walk the 184-metre distance to the crossroads, or whether she would need a break during the journey, or before walking back. She submits it is therefore unclear how the FTT reached the conclusion that SM could walk more than 200 metres repeatedly and within a reasonable time period, in accordance with regulation 4(2A) of the 2013 regulations. Mrs Hawley argues the FTT failed to make adequate factual findings to support and explain its decision that SM did not score any of the point scoring descriptors for the activity of moving around.

Mrs Hawley observes that the FTT is entitled to give weighting to whatever evidence it chooses. She submits, however, that an FTT must explore and consider conflicting evidence in a holistic manner and provide sufficient reasons for why it prefers some evidence over other evidence. Mrs Hawley submits that in relation to all four appeal grounds, the FTT has failed to do so.

SM has provided a reply to Mrs Hawley’s submissions. She thanks Mrs Hawley for the clear points she has made (and which reflect what she said at the hearing). SM observes that in terms of her antidepressant medication, she takes propranolol and sertraline. SM explains she is unclear about a reference Mrs Hawley has made to supersession but explains her mental health difficulties have worsened since the hearing on 08 November 2024. SM also explains that she has asked the Upper Tribunal office several times what she needed to do to respond but did not receive a response. She sought advice elsewhere and submitted her form.

On behalf of the Upper Tribunal office, I apologise to SM that she did not receive a response to her queries. SM may also find it helpful to note that “supersession” means where DWP changes an earlier benefit decision. Mrs Hawley was explaining that DWP has not received any request from SM to take into account, through a supersession decision, changes in her condition since 08 November 2024. The FTT cannot consider any changes in SM’s condition after DWP made its decision on 15 October 2023.

Neither party asked for a hearing. SM said she would attend one if required. I took the parties’ preferences into account. Having looked at the matter for myself, I decided an oral hearing is not required. The parties agree the FTT made material errors of law in its decision. 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 6 to 14 above, dealt with in more detail by her submission dated 16 June 2025.

I have decided the FTT’s decision involved material errors of law. I have decided to use my discretion to set aside the FTT’s decision dated 08 November 2024. I do so, using the legal power in section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Section 12 of the 2007 Act requires me either to remit (send back) the case to the First-tier Tribunal to decide afresh, or to decide the case myself.

Neither party asked me to decide the case myself. In any event, more facts need to be found The First-tier Tribunal is best placed to evaluate the evidence, using its medical and disability expertise, and to make appropriate findings of fact.

I therefore remit MS’ appeal to be reheard before a new First-tier Tribunal. It will make a fresh decision about whether SM should be entitled to PIP at the date of DWP’s decision on 15 October 2023.

Although I have set aside the FTT’s decision dated 08 November 2024, I am not making any findings, or expressing any view, about whether SM 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.