VG v Secretary of State for Work and Pensions

The case is remitted to the First-tier Tribunal for reconsideration.

The new tribunal should not involve any of the panel members previously involved in considering this appeal on 15 November 2023.

The new tribunal must not take account of circumstances that were not obtaining at the time the (then) Secretary of State made a decision on 25 August 2023 that the Appellant was not entitled to PIP: see section 12(8)(b) of the Social Security Act 1998 and R(IB) 2/04 at [188]. Later evidence is admissible, provided it relates to the circumstances at the time of the decision: see R(DLA) 2 and 3/01.

If the parties have any further written evidence to put before the tribunal, this should be sent to the relevant HMCTS regional tribunal office within one month of the issue of this decision.

The tribunal hearing the remitted appeal is not bound in any way by the decision of the previous First-tier Tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome from the previous tribunal.

A copy of this decision shall be added to the bundle to be placed before the First-tier Tribunal hearing the remitted appeal.

This appeal relates to the Respondent’s decision made on 25 August 2023 that the Appellant was not entitled to any Personal Independence Payment from 11 May 2022 (the “SoS Decision”). The Appellant appealed the SoS Decision to the First-tier Tribunal.

On 15 November 2023 a three-member panel of the First-tier Tribunal convened to hear the Appellant’s appeal against the SoS Decision (the “FtT”). Following the hearing the FtT decided to confirm the SoS Decision (the “FtT Decision”).

The Appellant sought permission to appeal to the Upper Tribunal from the First-tier Tribunal but her application was refused. She then exercised her right to appeal to the Upper Tribunal for permission to appeal.

The matter came before me and I granted permission to appeal because I was persuaded that it was at least arguable that the FtT had erred materially in law. I invited the Respondent to make a submission on the appeal.

Mr Razzaq, on behalf of the Respondent, conceded that the FtT Decision involved errors of law. He agreed that the Appellant had identified a number of mistakes of fact which he said case doubt on how carefully the FtT had considered the Appellant’s arguments and evidence. He indicated his support for the appeal and invited me to set the FtT Decision aside and remit the matter to the First-tier Tribunal for re-hearing.

At the permission stage I was satisfied that it was arguable with a realistic prospect of success that the FtT had made a material error of law. At this stage, in order to allow the appeal, I must be satisfied on the balance of probabilities that the FtT did err in law in a way which was material.

The statement of reasons produced on 10 January 2024 to explain the FtT Decision includes statements which are plainly wrong. For example, in paragraph 1 it states the claimant’s age as “24 years of age”, when the Appellant was born in 1976. In paragraph 2 of the statement of reasons the healthcare professional who conducted the Appellant’s face to face assessment is named as “Mr James Terry”, while the document at page 24 of the First-tier Tribunal bundle indicates that the healthcare professional was called “Miss Caroline Long”. These errors call into question whether the reasons given relate to the Appellant’s appeal or that of another claimant.

I am satisfied that the FtT Decision is materially in error of law and the interests of justice demand that it be set aside.

It is appropriate to exercise my discretion to set aside the FtT Decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 and to remit the matter to the First-tier Tribunal so that it can determine the appeal afresh.