MI v The Secretary of State for Work and Pensions (DLA)

In this appeal MI acts through his mother, and representative, LO. The Department for Work and Pensions (“DWP”) administers social security benefit on behalf of the Secretary of State for Work and Pensions. DWP had previously decided that MI was entitled to Disability Living Allowance (“DLA”), namely the middle rate of the care component, from 16 February 2021 to 19 October 2022.

MI reached the age of five in 2022, which meant he was eligible, in principle, to claim the lower rate of the mobility component of DLA. On 31 March 2023, DWP decided to supersede (which means, change) MI’s DLA award to award him the lower rate of the DLA mobility component from 20 October 2022 (the date on which LO was treated as applying for the supersession). DWP decided, however, to maintain MI’s award of the middle rate of the DLA care component, based on his need for attention in connection with his bodily functions during the day.

LO disagreed with DWP’s decision that MI remained entitled to the middle rate care component of DLA. On 23 June 2023, LO lodged an appeal with the First-tier Tribunal on behalf of MI. On 22 May 2024, a First-tier Tribunal (“FTT”) heard that appeal. Having done so, the FTT refused the appeal and confirmed DWP’s decision.

In a decision dated 16 October 2024, a salaried First-tier Tribunal Judge gave LO permission to appeal against the FT’s decision dated 22 May 2024.

The salaried First-tier Tribunal Judge decided it was arguable the FTT had made one or more of the following errors of law:

Mrs A. Watts is the Secretary of State’s representative in these proceedings. She supports the appeal in a helpful written submission dated 26 March 2025. Mrs Watts invites the Upper Tribunal to set aside the FTT’s decision dated 22 May 2024 for containing material errors of law, for the reasons set out below.

Failure to explain adequately the law it was applying when determining MI’s appeal: Mrs Watts submits that the FTT’s Statement of Reasons made no explicit reference to section 72 of the Social Security and Contributions Act 1992 (“the 1992 Act”), nor did it acknowledge, more generally, the tests set out in section 72.

Section 72(1)(c) of the 1992 Act provides:

“72.

The care component.

(1)

Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which— …

… (c) he is so severely disabled physically or mentally that, at night,—

(i)

he requires from another person prolonged or repeated attention in connection with his bodily functions; or

(ii)

in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.”

Mrs Watts submits that the FTT set out its findings on MI’s night-time needs at paragraph 8 of its Statement of Reasons and set out its overall conclusion at paragraph 10. Mrs Watts argues that the wording in paragraphs 8 and 10 of the Statement of Reasons does not sufficiently explain how the FTT assessed that MI did satisfy the legislative test for an award of the highest rate of the DLA care component.

Mrs Watts submits that given the FTT did not refer to what is tested by section 72 of the 1992 Act, it is difficult for LO, as MI’s Appointee, to know whether the FTT applied the correct legal tests when assessing MI’s nighttime needs. Mrs Watts submits this is particularly important given the FTT assessed that LO: “…found the statutory concept of night needs difficult to understand” (paragraph 6 of Statement of Reasons). Mrs Watts argues that since the FTT had made this finding, it needed to provide a clear and thorough explanation of how it assessed MI’s nighttime needs in relation to the tests set out in section 72 – namely so that LO could understand it. Mrs Watts submits that the FTT’s failure to do so is a material error of law.

Failing to make adequate factual findings and / or provide adequate reasoning about what was the normal “nighttime” period for LO’s household: Mrs Watts observes that the FTT wrote the following about the “nighttime” in LO’s and MI’s household:

“8.

We found that at the date of decision, [LO] was the last person to go to bed at about 12 midnight and she would be the first person to get up at about 4 am to start the day.”

Mrs Watts submits that the FTT appeared to take the period between 12 am and 4 am as the normal nighttime in the household but failed to make any further findings of fact about whether this would be LO’s normal nighttime routine, or she had adjusted it because of MI’s care needs. Mrs Watts observes that the evidence on which the FTT made its findings suggested this was not a typical nighttime period for most households and suggested LO was coinciding the time she went to be and rose to start her day, with the times MI was awake at night.

Mrs Watts submits it was incumbent on the FTT to make additional findings of fact about whether the period from 12 am to 4 am would be the household’s “normal” nighttime. She argues this is required in accordance with the case law in R(A) 1/78 and CDLA/997/2003, as explained in LB v SSWP [2018] UKUT 445.

Mrs Watts argues this was a material error of law, because had the FTT made enquiries about whether 12 am to 4 am was the normal nighttime period, it might have concluded that it was not normal and was adjusted to reflect when MI was awake. Had the FTT come to this conclusion, it could conceivably come to a different decision regarding whether MI was entitled to the highest rate of the DLA care component.

Mrs Watts also refers to evidence in the FTT bundle suggesting MI was waking in the night. For example, the DLA1 form dated September 2022 referred to MI’s mum or dad taking turns to sleep in his room due to self-harm or MI wondering about, and him waking up 3 or 4 times a night and his nappy having to be managed too (page 92 of FTT bundle). Mrs Watts additionally refers to the consultant paediatrician letter at Addition A, page 1 of the FTT bundle, which described MI experiencing significant sleep disturbances.

Mrs Watts points out that while the letter is not dated, the paediatrician referred to MI being five years and 10 months old, which would date the letter in October 2022 (the date from which DWP superseded the previous DLA award). Mrs Watts submits that both documents were relevant to MI’s appeal, but the FTT made no reference to it, and did not appear to have assessed it when concluding MI did not require nighttime care.

Mrs Watts argues that given this, it is difficult to know how the FTT reconciled the notion that MI’s nappy had to be managed in the night, and he was a very unsettled sleeper who experienced significant sleep disturbances, with its conclusion that MI did not require nighttime care. Mrs Watts submits that this failure by the FTT to engage with the evidence before it, and to include it in its assessment that a normal nighttime in LO and MI’s household was from 12 am to 4 am, is a material error of law.

Having seen Mrs Watts’ submissions, MI’s representatives agree that the FTT’s decision involved an error of law. They invite the Upper Tribunal to either remit MI’s appeal to a new FTT or decide the appeal itself. MI’s representatives ask that if the appeal is remitted, it is listed for a remote hearing, or in the nearest tribunal to where MI and LO live (Fox Court or Hatton Cross).

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 Mrs Watts at paragraphs 7 to 17 above, dealt with in more detail by her submission dated 26 March 2025.

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 22 May 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.

I have decided not to remake the FTT’s decision. 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 MI’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about the level of MI’s entitlement to DLA.

Although I have set aside the FTT’s decision dated 22 May 2024, I am not making any findings, or expressing any view, about the level of MI’s entitlement to DLA. The next tribunal will need to hear evidence, make its own findings of fact, and provide its reasoning for the decision it reaches.