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

SC made a claim for personal independence payment (PIP) on 09 February 2024. The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, asked SC to take part in a telephone medical assessment on 10 April 2024. Having received advice from that assessment, on 22 April 2024, DWP decided SC scored descriptor 4.b (2 points) for PIP daily living activities but did not score any points for PIP mobility activities. As the threshold for an award of either component is 8 points, DWP refused SC’s PIP claim.

SC appealed to the First-tier Tribunal on 26 July 2024. On 28 October 2024, her appeal was decided at Blackpool on the basis of the written evidence in the appeal bundle. The First-tier Tribunal (“FTT”) maintained DWP’s decision to award SC descriptor 4.b (2 points) for PIP daily living activities and not to award her any points for any of the other PIP activities. The FTT therefore confirmed DWP’s decision and refused SC’s appeal.

On 26 February 2025, SC applied to the Upper Tribunal for permission to appeal against the FTT’s decision. In a decision dated 07 April 2025, I granted SC 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:

S. Rauf is the Secretary of State’s representative in these proceedings, and I refer to them as “the SSWP’s representative”. They support the appeal to the Upper Tribunal in a helpful written submission dated 28 May 2025. The SSWP’s representative invites the Upper Tribunal to set aside the FTT’s decision dated 28 October 2024 for containing material errors of law, for the reasons set out below.

Adequacy of reasons for determining SC’s appeal on the papers: the SSWP’s representative submits that the FTT’s Statement of Reasons sets out that the FTT considered whether each party objected to the appeal being determined without a hearing (which satisfied rule 27(1)(a) of the Tribunal Procedure (First-tier Tribunal) Rules 2008. The SSWP’s representative submits, however, that the FTT failed to look at the part of the test in rule 27(1)(b), as understood in the context of rule 2 of those rules.

The SSWP’s representative refers to the Upper Tribunal decisions in DT v SSWP (UC) [2019] UKUT 268 (AAC) and in MM v SSWP (ESA) [2011] UKUT 334 (AAC). The SSWP’s representative submits that taking these into account, the FTT failed to explain adequately why it decided rule 27(1)(b) was satisfied, and it is unclear whether the FTT even considered that rule when choosing to decide the matter without a hearing. The SSWP’s representative submits this was a material error of law.

Adequacy of reasoning to explain why the FTT relied on the healthcare professional’s assessment of SC on 10 April 2024: the SSWP’s representative submits that at paragraph 35 of its Statement of Reasons, the FTT relied heavily on the evidence in the PA4 assessment report by the healthcare professional who assessed SC by telephone on 10 April 2024. The SSWP’s representative observes that the FTT stated it had exercised caution when considering SC’s PIP2 questionnaire as it was completed by an inexperienced claimant.

The SSWP’s representative submits that there were uncertainties surrounding SC’s condition, which were not adequately resolved in the Statement of Reasons. This reflects the matters I mentioned when granting permission to appeal, namely what the FTT stated at paragraph 35(ii) and 35(iv) of the Statement of Reasons about what SC could do and how bad her pain was by reference to taking paracetamol. The SSWP’s representative argues that the FTT would have benefited from adjourning the hearing to allow SC to attend and give oral evidence or provide further written evidence. They submit it is unclear from the Statement of Reasons whether the FTT considered whether to take any of those steps. Implicitly, this also means the FTT failed to explain why it decided not to do so. The SSWP’s representative submits the FTT failed in its inquisitorial duty by failing to gather more evidence on the uncertainties highlighted in paragraph 35 of its Statement of Reasons.

Adequately assessing the effects of SC’s medical conditions on her: the SSWP’s representative has summarised SC’s evidence about her osteoarthritis in her knee and plantar fasciitis, it affected her walking, and standing, and she described it varying during certain times of day. The SSWP’s representative explains that the FTT acknowledged SC had been receiving steroid injections but did not explain how this had been evaluated (paragraph 5 of Statement of Reasons). The SSWP’s representative argues that given what SC had described in her PIP2 questionnaire and later representations, the injections did not represent a new development, but a continuation of ongoing management of severe knee pain. The SSWP’s representative argues the FTT did not meaningfully consider the significance of those injections as a part of a longstanding treatment plan for chronic pain. The SSWP’s representative quotes the letter from SC’s GP dated 07 June 2024, which confirmed she was under specialist teams for her knee pain, and that SC struggled every day with her knees and described standing, sitting, getting in and out of a bath as well as stairs causing her problems (Addition E, page 2 of the FTT bundle).

The SSWP’s representative argues that without evaluating the side effects of SC’s injections, the FTT could not adequately determine the nature and extent of SC’s medical impairments or how they affected her functional ability. They also argue that the fact SC was receiving steroid injections contradicts the FTT’s assumption that the limited use of paracetamol demonstrated low functional impact of SC’s knee condition. Instead, the steroid injections demonstrate SC’s conditions were serious and required clinical intervention.

The SSWP’s representative also submits that the FTT noted SC’s evidence that she experienced stiffness in the morning and pain at night but did not consider how this affected her ability to carry out PIP activities at those times. The SSWP’s representative described evidence in the bundle that SC had occasional difficulties getting on and off the toilet because of pain and held onto the bath when her knees felt a bit stiffer (page 13 of FTT bundle). However, the FTT gave this little or no weight, instead relying on SC’s limited use of paracetamol to find she would not reasonably require an aid to manage toilet needs on the majority of days in the required period for PIP.

The SSWP’s representative submits that in making such a finding, the FTT failed to properly consider whether SC could carry out that activity as required in regulation 4(2A) of the Social Security (Personal Independence Payment) regulations 2013, which requires them to be performed safely, to an acceptable standard, repeatedly and within a reasonable time period. The SSWP’s representative submits the FTT also failed to consider the principle established in TR v SSWP [2015] UKUT 626 (AAC). In that case, the Upper Tribunal explained that it was sufficient for identifying an inability to perform a PIP task or function to identify that a claimant was unable to perform the relevant task at some point in a day, for a time period which was more than trifling and which had some degree of impact on her.

The SSWP’s representative argues that in failing to explore the frequency and duration of SC’s difficulties with stiffness in the morning and pain at night, the FTT did not make adequate factual findings or provide adequate reasoning to support its decision on specific activities (such as managing toilet needs).

SC provided representations, received on 05 June 2025. SC states it is clear that there has been an error of law in both fact finding and evidence that should have been used to support her claim. SC sets out details of further investigations and treatment she is receiving for both her knee and her plantar fasciitis. SC submits there have been several failings throughout the process in making factual findings and analysing relevant evidence. She argues that this is unacceptable and is causing her to struggle in her daily life due to the physical and mental impact.

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 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 the SSWP’s representative at paragraphs 5 to 13 above, dealt with in more detail by their submission dated 28 May 2025.

In terms of the matters SC has raised, they do not identify additional material errors of law by the FTT, but they provide important context for how material errors of law can affect an individual party to an appeal.

SC is encouraged to take part in the oral hearing of her appeal before a new FTT. This will give her the opportunity to explain how her conditions were affecting her leading up to, and around the date of, DWP’s entitlement decision dated 22 April 2024. Legally, the FTT cannot consider any changes in SC’s conditions or how they affect her, after the date that DWP made its entitlement decision. The FTT will find it helpful to hear directly from SC about how her conditions were affecting her up to, and around that time.

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 28 October 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 SC’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about whether SC should be entitled to PIP at the date of DWP’s decision on 22 April 2024.

Although I have set aside the FTT’s decision dated 28 October 2024, I am not making any findings, or expressing any view, about whether SC 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.