Appeal No. UA-2024-000976-PIP
Between:
AG
Appellant
- v -
The Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Butler
Decided on consideration of the papers
Representation:
Appellant: Ms L. Jenkins
Respondent: E. Sakpa, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-tier Tribunal (Social Entitlement Chamber)
Tribunal Case No: SC285/23/02599
Tribunal Venue: Birmingham
Decision Date: 02 February 2024
DECISION
As the decision of the First-tier Tribunal involved the making of an error of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the First-tier Tribunal for rehearing by a fresh tribunal.
DIRECTIONS
The case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.
The new tribunal should not involve any of the panel members previously involved in considering this appeal on 02 February 2024.
When deciding this appeal, the First-tier Tribunal must apply the following case law, which is binding on it: DO v SSWP (PIP) [2021]UKUT 161and SC v SSWP (PIP) [2019] UKUT 165 (AAC)
The new Tribunal must not take account of circumstances that did not apply at the time of the Secretary of State’s decision dated 02 March 2023. Later evidence can be considered as long as it relates to the circumstances at the time of that decision: see R(DLA) 2/01 and R(DLA) 3/01.
Within one month of the date this decision is issued, DWP is to send the First-tier Tribunal a submission confirming which mobility activity descriptors it decided should apply to AG in its letter dated 14 August 2023.
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 six weeks 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.
Copies of this decision, the permission to appeal decision, and the submissions on behalf of the Secretary of State (dated 22 April 2025) shall be added to the bundle to be placed before the First-tier Tribunal hearing the remitted appeal.
These Directions may be supplemented by later directions by a tribunal judge, registrar, or case worker, in the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
Factual background
AG claimed personal independence payment (“PIP”) unsuccessfully in November 2017. He appealed to a First-tier Tribunal in July 2018 and was awarded 10 points for daily living activities and 10 points for mobility activities. The Tribunal awarded AG the standard rate of the daily living component and the standard rate of the mobility component of PIP, from 07 November 2017 to 05 May 2021.
The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, started a planned review of AG’s PIP award in 2020. A planned review means DWP was looking at whether the award remained the correct amount and rate of PIP. AG took part in a telephone medical assessment on 20 April 2020. On 05 May 2020, having received advice from that assessment, DWP superseded (which means, changed) AG’s PIP award by reducing his daily living points to 2, and changing his mobility points to none. AG appealed this decision to a First-tier Tribunal in July 2020.
On 17 August 2020, DWP notified AG and the Tribunal that the appeal had been lapsed because it had awarded AG 10 points for daily living activities and 10 points for mobility activities. DWP can lapse an appeal where it changes the decision it has made, and the new decision leaves a claimant better off than before. The effect of DWP’s changed decision was that it decided AG was still entitled to the standard rate of the daily living component and the standard rate of the mobility component of PIP, and that his entitlement continued from 05 May 2020 to a new date of 04 May 2022.
In 2021, DWP started another planned review of AG’s PIP award. He took part in a telephone medical assessment on 25 January 2023. Having received advice from that assessment, on 02 March 2023, DWP decided to supersede (change) AG’s award, giving him 10 points for daily living activities (as before) but reducing his points for the mobility activities to 4. The effect of this was that from 02 March 2023, DWP kept AG’s award of the daily living component at the standard rate but took away his award of the mobility component.
On 23 June 2023, AG appealed to a First-tier Tribunal. On 14 August 2023, DWP decided to change its decision, and awarded AG 10 points for daily living activities (as before) and to increase his points for mobility activities back to 10 points. This meant DWP restored AG’s mobility component with effect from 02 March 2023. DWP decided to lapse AG’s appeal because it had changed its decision for one that left AG better off.
On 07 September 2023, DWP contacted AG about the change to his award. AG explained he wanted his appeal to continue because he felt his conditions had got worse and that he needed the increased rate of PIP and would not accept the standard rate for the mobility component.
On 02 February 2024, a First-tier Tribunal (“FTT”) heard AG’s appeal at a hearing centre in Birmingham. AG was at the hearing and a Presenting Officer was also present to represent DWP. The FTT decided AG scored 8 points for daily living activities and 4 points for mobility activities. The FTT therefore refused AG’s appeal.
Permission to appeal
On 02 July 2024, AG applied to the Upper Tribunal for permission to appeal against the FTT’s decision. He said he wanted a hearing of his application. It was listed for a hearing on 14 March 2025 before me.
Having been sent the papers for the application, I was able to listen to an audio recording of the FTT hearing. As a result of listening to that and considering the papers, on 09 March 2025, I granted AG 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:
Addressing adequately how AG’s medical conditions affected him: AG had informed DWP he had a learning disability or learning difficulties. AG told the FTT about this during the hearing, including that he went to a special school as a child and was diagnosed with dyslexia as an adult in 2004. AG said he was given a green overlay to see the shape of things on paper but cannot read joined up writing. AG also said he had restricted vision in his right eye (which medical evidence suggests is amblyopia). The FTT had acknowledged AG had learning difficulties but not explained what it decided they were or how they affected him. Assessing them would be potentially relevant to several PIP activities;
AG also told the FTT that he was diagnosed with anxiety and depression in 2020. The FTT did not ask him questions about this during the hearing but drew conclusions about how those conditions affected him The FTT also wrote that AG told it eczema was one of his restricting conditions, but the hearing recording did not disclose this (the FTT may have misheard what AG said);
Addressing the PIP activities adequately: it was not clear the FTT asked enough questions, and about the right things, to be able to decide whether AG could carry out the PIP activities. For example:
Preparing food: it was not clear the FTT had considered whether AG could do this safely, given he described experiencing numbness, locked hands and fingers and joint pain from his hypocalcaemia. The FTT decided this did not create a risk because the length of time if happened for was 10 to 15 seconds or maybe a minute. However, it should have explored whether AG would know his symptoms were coming on, and whether, if they did, he might have an accident (and what would happen if so);
Washing and bathing: the FTT asked AG about using a walk-in shower but not whether he could get in or out of an unadapted bath;
Dressing and undressing: AG told the FTT he could not put on socks and take them off. The FTT appeared to accept he had this difficulty (paragraph 47 of Statement of Reasons). However, it did not address that difficulty when considering if AG could dress or undress, even though dressing with socks is part of the test;
Engaging with other people: AG told the FTT about one friend, and a neighbour he spoke to. He said he did not speak to other parents at his children’s school and he found it stressful talking to customers at the NEC. Many of the examples of engagement the FTT used in the Statement of Reasons were brief transactional ones and might not have reflected the test correctly; and
Planning and following a journey: it was not clear the FTT asked AG adequate questions about this or taken adequate account of what he said. AG told the FTT about his wife planning new routes he did not know. He described taking taxis to unfamiliar places as he did not know the route. He described falling asleep on familiar routes due to sleep apnoea and his children having to wake him up. AG also described having to sit next to the bus driver so they could tell him when to get off. He described an incident falling asleep on a bus, ending up in Coventry, having to take a bus back to Birmingham and this requiring someone to tell him a route and the driver having to prompt him to get off at the right stop;
Dealing adequately with DWP’s decision to supersede (change) AG’s PIP award: the FTT did not mention that DWP changed AG’s existing Pip award or why DWP was entitled to do that legally or factually. This arguably failed to address the requirements in SC v SSWP (PIP) [2019] UKUT 165 (AAC); and
Dealing properly with DWP’s offer to give AG the standard rate of the PIP mobility component: DWP had offered AG this on 14 August 2023 (page 29 of appeal bundle). Although DWP offered it if AG did not continue his appeal, the Upper Tribunal decided in DO v SSWP (PIP) [2021] UKUT 161 (“DO”) that the FTT should treat points DWP had offered as something it no longer disagreed with a claimant being awarded. This meant the FTT should have taken the standard rate of the mobility component DWP offered AG as its starting point, rather than treat entitlement to that rate of the component. The FTT did not ask the DWP Presenting Officer about that at the hearing and they did not put forward any suggestion by DWP those points remained disputed.
The Secretary of State’s submissions
E. Sakpa is the Secretary of State’s representative in these proceedings, and I refer to them as “the SSWP’s representative” in this Decision. They support the appeal in a detailed and helpful written submission dated 22 April 2025. The SSWP’s representative invites the Upper Tribunal to set aside the FTT’s decision dated 02 February 2024 for containing material errors of law, for the reasons set out below.
Failing to make adequate findings of fact and / or provide adequate reasons for its decision: the SSWP’s representative argues the FTT failed to make adequate findings of fact about AG’s medical conditions and how they affected him. This includes failing to explain how AG’s learning disability or learning difficulty, and anxiety and depression, affected him. The SSWP’s representative explains these were all relevant to AG’s appeal to the FTT, because they might affect how he could carry out the PIP activities.
The SSWP’s representative also argues that the FTT did not properly analyse the evidence it had before it or obtain further information from AG at the hearing, to clarify inconsistencies, and to enable it to decide AG’s appeal. The SSWP’s representative argues that as a result, the FTT did not correctly apply regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 (“the PIP regulations 2013”).
The test in regulation 4(2A) requires looking at whether a claimant can carry out PIP activities safely, to an acceptable standard, repeatedly and within a reasonable time period. The SSWP’s representative argues that the FTT did not properly engage with the evidence in the appeal bundle or what AG told it at the hearing, to be able to apply regulation 4(2A) of the PIP regulations 2013 correctly. The SSWP’s representative relies on the specific examples I have set out at paragraph 9(c) above. They argue that the way the FTT dealt with those particular activities shows it did not make adequate findings of fact or explain its decision sufficiently well, to support its conclusions.
Dealing properly with DWP’s offer to give AG the mobility component at the standard rate: the SSWP’s representative agrees with what I have written in paragraph 9(e) above, where I explain the FTT should have applied the case of DO when deciding AG’s appeal. The SSWP’s representative explains that if the FTT had done that correctly, it would have treated the “offer” by DWP to give AG the mobility component at the standard rate, as a decision by DWP that AG was entitled to have the PIP mobility component at the standard rate (at least). What remained in dispute between DWP and AG was whether he should have the higher enhanced rate of that component.
The SSWP’s representative argues the FTT does not appear to have considered the decision in DO, and the implications for what it had to decide.
Ms Jenkins is AG’s friend and is his representative before the Upper Tribunal. She wrote to the Upper Tribunal on 15 June 2025 saying the following:
“[AG’s] health continues to deteriorate. Some days worse than others, I would propose new examinations and assessments to be arranged and carried out in order to witness and document new medical diagnosis to be taken into consideration before any final conclusions are made regarding this current case. [AG] was once again admitted to hospital (06/06/25) via urgent recommendation of his GP. Due to the lengthy process of this appeals mater, I feel any past medical PIP claims would not be a true reflection of [AG’s] current abilities both physically and mentally at this present home. have, understandably, not provided further submissions about this appeal.”
Why there was no oral hearing of this appeal
None of the parties asked for a hearing. I took that into account. Having looked at the matter for myself, I decided an oral hearing is not required. The parties agree the FTT made material legal mistakes (formally described as errors of law). It was proportionate to determine the appeal on the papers.
My decision
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 11 to 15 above, dealt with in more detail by their submission dated 22 April 2025.
I would add the following observation. The FTT awarded AG 8 points for daily living activities although DWP had awarded him 10 points. See page E of the Response to the Appeal. See also the mandatory reconsideration letter dated 05 April 2023 at page 211 of the appeal bundle, which sets out the breakdown of those 10 points. It is unclear whether the FTT appreciated it was giving AG fewer points than DWP had given him. The Statement of Reasons does not address this, including in relation to the relevant activity (Dressing and undressing).
I recognise the letter from DWP dated 14 August 2023 (page 29 of appeal bundle) did not explain what the standard rate of the mobility component involved (for example, how many points, and for which mobility activities). The FTT therefore could not have known this information from the papers. It did, however, have a Presenting Officer available at the hearing to confirm the position. The hearing recording confirms the FTT Judge said at the outset of the hearing that they would ask the Presenting Officer about the offer made on 14 August 2023. The recording confirms this issue was not in fact, addressed during the hearing.
Can the Upper Tribunal or the First-tier Tribunal direct DWP to obtain updated PIP medical assessments on AG to deal with his deterioration?
The simple answer is No. The law says the First-tier Tribunal can only look at how AG’s medical conditions affected him at the date of DWP’s decision changing his award on 02 March 2023. The Tribunal cannot look at how AG is now, if this is different to how he was in March 2023.
As I explained in my Decision dated 09 March 2025, if AG feels his medical conditions have got worse, he needs to go back to DWP to ask it to look again at his PIP entitlement. Given what Ms Jenkins wrote on 13 June 2025, it is clear she thinks AG’s conditions have got worse since then and she wants that to be looked at. Only DWP can take that step and any worsening in AG’s conditions can only be taken into account from the date when DWP starts considering it.
The Upper Tribunal cannot advise a party about what steps they should take. AG and Ms Jenkins are encouraged to speak to a welfare rights organisation like Citizens Advice or Central England Law Centre about what they should do in relation to the fact AG’s conditions have got worse. They can show a copy of this Decision to the welfare rights organisation, if this would help.
Conclusion, including disposal
Having decided the FTT’s decision involved material errors of law, I have decided to use my discretion to set aside the Tribunal’s decision dated 02 February 2024. I do this under an Act of Parliament (section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007). That Act requires me to decide either to remit (send back) the case to the First-tier Tribunal to decide afresh, or to decide the case myself.
None of the parties asked me to decide the case myself. Furthermore, this is a case where more facts need to be found, and the Tribunal needs to think about all the medical evidence. 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 (send back) AG’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about what entitlement AG had to PIP at the date of DWP’s decision on 02 March 2023.
Although I have set aside the FTT’s decision dated 02 February 2024, I am not making any findings, or expressing any view, about what entitlement AG should have had to PIP on 02 March 2023. The next tribunal will need to hear evidence, make its own findings of fact, and provide its reasoning for the decision it reaches.
Judith Butler
Upper Tribunal Judge
Authorised by the Judge for issue: 10 October 2025