Appeal No. UA-2025-000987-PIP
Between:
I.W.
Appellant
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Wikeley
Decided on consideration of the papers
Representation:
Appellant: Mr J Cunningham, Durham Welfare Rights
Respondent: Mrs H Hawley, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-Tier Tribunal (Social Security and Child Support)
Tribunal Case No: SC236/24/00069
Digital Case No: 1702458306697326
Tribunal Venue: Sunderland
Hearing Date: 21 March 2025
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 21 March 2025.
The Appellant is reminded that the tribunal can only deal with the appeal, including her health and other circumstances, as they were at the date of the decision by the Secretary of State under appeal (namely 2 October 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 factual background is set out in the helpful written submission by the Secretary of State’s representative in these proceedings. In summary, the DWP decision-maker considered the Appellant scored 8 points for daily living descriptors 1(b), 4(b), 5(b), 6(b) and 4 points for mobility descriptor 2(b). As such, there was no change to the Appellant’s existing PIP award of the standard rate of the daily living component. The Appellant appealed to the FTT. The FTT, following a conventional face to face hearing, confirmed the DWP decision under appeal. The FTT accordingly confirmed an award of the standard rate of the PIP daily living component (8 points) for the period from 02/10/2023 to 20/09/2026.
The grounds of appeal
The Appellant’s grounds of appeal related to the FTT’s findings and reasons in respect of daily living activities 2 and 9.
I gave the Appellant permission to appeal, observing as follows:
The Appellant’s two grounds of appeal are well defined and arguable. The fact that permission to appeal has been granted should not be taken as any indication of the likelihood on closer scrutiny of the appeal succeeding. For example, if the ground relating to Activity 9 proves to be successful but not the ground relating to Activity 2, then the outcome of the appeal would have been the same.
The Secretary of State’s representative in these proceedings, Mrs Helen Hawley, supports the appeal. She sums up her analysis as follows:
It is my submission that the FtT have erred in law in both their fact finding and duty to provide adequate reasons for their decision. The conclusions from the FtT on how they assessed the claimant’s functional abilities appears limited in their reasoning. It seems that what the FtT has provided with regards the claimant’s difficulties with daily living activities 2 and 9 at paragraph 24 of the statement of reasons (SOR), appears to be no more than a rehearsal of part of the evidence and a conclusion without an adequate explanation.
She submits as follows as regards the ground of appeal relating to daily living activity 2:
The claimant has provided some evidence regarding the difficulties she has with cutting up food see pp.101, 123, and 191. It is also notable that the medical evidence within the appeal bundle appears supportive of the claimant’s assertions concerning the joint pain in her hands and the swelling of her fingers due OA, which I note has been observed by the GP see Addition E p.1 and Addition H pp. 2, 13, 15, 17-19, 39-40, 58-59 and 62-65. However, the FtT did not make any findings as to whether the claimant experienced any pain when gripping or placing weight on her walking stick when sitting down or getting up from being seated or when walking.
Moreover, it is unclear upon reading of the SOR whether the FtT attempted use their inquisitorial function to ask the claimant questions to clarify the difficulties she experiences when using cutlery to cut her food due to hand pain and swelling in her fingers, to establish whether she was able undertake daily living activity 2 in accordance with the provisions of Regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 (the PIP Regs 2013).
She also comments as follows on activity 9:
The FtT in reaching their conclusions regarding daily living activity 9 seemingly relying upon the claimant’s ability to engage with family members and friends, the HP who conducted the face to face assessment on 21/09/2023, and the FtT panel members, without giving consideration to and making findings of fact as to whether the claimant is able to engage with other people face to face more generally and not just with those that she knows well as per the guidance provided in UT decisions in CPIP/3343/2015 and CPIP/2523/2016 … or people where there is a particular impetus (or requirement) to do so as per GG v SSWP (PIP) [2016] UKUT 0194 (AAC).
Moreover, it is unclear upon reading the SOR whether the FtT considered guidance in the Supreme Court decision in SSWP v MM [2019] UKSC 34, which acknowledges that there is an overlap between “social support” and “prompting” when a claimant receives prompting (i.e., reminding, encouraging, or explaining by another person) from a person who meets the definition of a social supporter.
In view of the above, it appears the FtT have not provided sufficient findings of facts and reasons within the SOR with regards to daily living activity 9 in order to establish whether the claimant requires “prompting” or ”social support” to engage with other people face to face, nor have they considered this in accordance with the provisions of regulation 4(2A) of the PIP Regs 2013. I therefore respectfully submit that further fact finding is required regarding the claimant’s difficulties when engaging with other people face to face.
I should add that the Appellant’s representative has made further observations on the substance of the appeal by way of reply. In summary, they reiterate the submissions they made previously with regard to the use of dentures. However, I agree that this issue is not determinative of the appeal so need not be explored further.
Analysis: a summary
I agree with the analysis of the Secretary of State’s representative in her 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 October 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 2 October 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 7 November 2025