Appeal No. UA-2024-001754-PIP
Between:
TD
Appellant
- v -
The Secretary of State for Work and Pensions
Respondent
Before: Deputy Upper Tribunal Judge Hocking
Decided on consideration of the papers
Representation:
Appellant: Mr Kelly
Respondent: Eyituoyo Sakpa, DWP
On appeal from
Tribunal: Social entitlement chamber
Tribunal Case No: SC324/22/00608
Tribunal Venue: King’s Lynn
Decision Date: 9 April 2024
DECISION
The decision of the Upper Tribunal is to allow the appeal
DIRECTIONS
This case is remitted to the First-tier Tribunal (“FtT”) for reconsideration at an oral hearing.
It must be heard by an entirely fresh panel.
The FtT must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the FtT’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. While the FtT will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.
The new FtT is not bound by the decision of the previous FtT. Depending on the findings of fact it makes, the new FtT may reach the same or a different conclusion to the previous FtT. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the FtT to which this case is remitted.
These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the FtT.
REASONS FOR DECISION
Decision on the papers
Neither party requests an oral hearing. I am satisfied that I can deal with the case fairly on the papers, and that it is in the interests of justice that I do so.
Factual background and the ground of appeal
On 4 January 2022 the appellant submitted a claim for a personal independence payment or PIP. On 3 May 2022 the Secretary of state’s decision maker awarded him no points for either component of PIP, a decision upheld on mandatory reconsideration on 22 June 2022.
On 9 July 2022 the appellant appealed to the First-tier Tribunal. At a hearing held on 9 April 2024 the FtT rejected that appeal. It gave written reasons for doing so on 31 August 2024.
The appellant sought permission to appeal from the FtT, which was refused on 25 November 2024. He renewed his application to appeal to the Upper Tribunal on 10 December 2024, requesting an oral hearing of his application.
Grounds of appeal
After an oral hearing on 18 February 2025 I gave permission to appeal. I said this:
The essence of the appeal is that the FtT made findings that are at odds with the evidence. Casting the appellant’s grounds into legal terminology, it seems to be that he is saying that certain material findings:
Are factually inaccurate as can be established by the evidence before the FtT, or
Fail adequately to discuss and weigh competing strands of evidence, and/or to give sufficient reasons for the conclusions reached
I will grant permission to appeal generally, and in so doing I highlight a further issue which should be considered by the parties and in due course the Upper Tribunal, namely whether the FtT failed to case manage the case and/or the hearing such that the appellant did not have a fair hearing, bearing in mind in particular the evidence that he may have learning difficulties.
On the question of the FtT’s case management I added:
The parties and Upper Tribunal should also consider the fairness of the FtT proceedings. In refusing permission to appeal the FtT said “It would be hardly surprising that if faced with such a large volume of documents that a Tribunal might miss certain pieces of evidence.” It is clear that the volume of papers the FtT were presented with was close to if not actually unworkable. However it was open to the FtT to use its case management powers to address that situation. As the hearing before me demonstrated, the appellant (or rather Mr Kelly on his behalf) is capable of at least trying to see the wood for the trees, when directed to do so. If the volume of papers was so large that it could not effectively be engaged with then notwithstanding the very wide discretion given to case management decisions it was arguably incumbent on the FtT to give directions, adjourning if necessary
It may be necessary also to consider the conduct of the hearing. Whether or not the appellant has special educational needs (and of course having special educational needs is not synonymous with having an EHCP) there appears to be evidence that could on one view suggest that he may have had difficulty engaging with FtT proceedings, especially given the volume of material. That would particularly engage the FtT’s inquisitorial function. I note, for example, that in the passage quoted above the FtT appear to disbelieve the lack of medical records from the appellant. I can understand why that seemed unusual. However Mr Kelly had at least a partial answer to the lack of records in front of me. Whether or not I found that potentially convincing is not the point, the issue to explore is whether these and similar issues (for example the perceived inconsistency with social work records) have been adequately explored. It is arguable that they have not.
The respondent’s reply
The respondent supports the appeal. On the conduct of the FtT hearing, she says:
the FtT have an overriding objective under rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 to ensure that the case was dealt with fairly and justly. Although the Appellant did not have an EHCP due to the conditions the Appellant raised in their claim to PIP, the FtT should have used their inquisitorial function to determine whether the Appellant may have difficulty engaging in the hearing and providing evidence relevant to the case. There is no indication in the SOR that the FtT had explored any difficulties experienced by the Appellant, despite it being clear that there were numerous circumstances that prevented the Appellant from providing a complete medical history. If the FtT had explored this, they may have come to the conclusion that the Appellant required specific directions to ensure they provided the evidence required for their conditions. This could have allowed the Appellant to gather the medical records that were missing, if it is still possible, or made further fact finding into the claimants condition
She agreed that there was a failure adequately to discuss and weigh competing strands of evidence and draws attention to this passage from MB v Secretary of State for Work and Pensions: [2024] UKUT 271 (AAC),
“It is incumbent upon the FTT to consider all the evidence … Of further significance is the FTT’s failure to adequately explain why it preferred the evidence of the Musculoskeletal report dated November 2022 to that of the claimant’s GP and the Radiologist. This is in error of law. Where, as here, there is a conflict in the evidence the FTT must state which evidence it prefers and why … In this regard, in terms of weight to be accorded to specific pieces of evidence, while this is a matter for the primary fact-finding Tribunal, it could be argued the claimant’s GP may have been the health professional who knew the claimant and her condition(s) best. Again, I am not aware of the FTT’s view on this as it is not articulated in it’s written reasons. In my judgment therefore, the FTT was in error of law on a tripartite basis firstly, in failing in its inquisitorial duty to explore the evidence and find the relevant facts, secondly, to resolve the clear conflict in the medical evidence and thirdly, to provide adequate reasons for its decision.”
She added:
the FtT ought to have evaluated the Appellant’s medical history alongside his oral evidence in reaching it’s decision. It is as though the FtT in this case cherry picked evidence within the appeal bundle and ran with it, instead of actually evaluating the entire body of evidence. While the FtT stated that “there is no evidence within the 3128 pages of evidence in the bundle which support any diagnoses of autism, ADHD, dyslexia, anxiety or heart problems” [Paragraph 12, SOR], at Addition C, pages 43 – 44 of the FtT Bundle, the Appellant’s scores were well below the average range during several assessments. It is pertinent to state that the FtT never made reference to these assessments and the outcome. The FtT did not also make enquiries about the support the Appellant claimed to have received from his partner and her mother. The oversight of the FtT in these instances indeed raises concerns as to whether material evidence was taken into account, and/or adequate finding of facts were made.
Decision
The appeal must be allowed and the matter remitted for a fresh hearing.
I have some sympathy with the FtT in this case. I can well understand that, confronted with the mass of material before them, they would have felt their task was nearly impossible. This was undoubtedly a difficult case to try.
Be that as it may as the respondent rightly observes, trying cases fairly, whether they are difficult or not, is the task of the FtT. I am confident that did not happen here. I would not go quite so far as the respondent in saying that there is a suspicion of cherry picking. That implies a hostility to the appellant which goes too far. I see no reason to think the FtT were not even handed. But there is certainly a suspicion (and more than a suspicion, a finding) that, because of the mass of material before it, the FtT was not properly across all of the evidence and did not adequately analyse it. This is a difficult case evidentially for the reasons I gave when giving permission to appeal, but it is all the more important to take an inquisitorial approach, to identify and evaluate all of the conflicting evidence on each point, and to reach a reasoned decision.
The fundamental practical error, which led to the legal errors I have identified, was in not actively case managing the case much more closely before the hearing. I can understand and indeed empathise with the exasperation that led the FtT judge refusing permission to say “It would be hardly surprising that if faced with such a large volume of documents that a Tribunal might miss certain pieces of evidence.” But it is precisely a task of the FtT to manage its cases so that it is not confronted with an unworkably large volume of material, much of which may well be irrelevant, but buried within which may be (and I find probably was) material that is relevant to its conclusions.
An adversarial court may be able to take the position that a claimant who submerges the court in documents so that his case cannot be understood must bear the consequences, but an inquisitorial tribunal cannot do so. It must assist the parties to see the wood for the trees. As Baroness Hale said in Kerr v Department for Social Development [2004] UKHL 23:
Ever since the decision of the Divisional Court in R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble [1958] 2 QB 228, it has been accepted that the process of benefits adjudication is inquisitorial rather than adversarial. …
What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information….
If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, "a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn.
Although case management will now be a matter for the FtT I would suggest it may wish to consider a proactive approach for the rehearing, identifying the issues in advance for the appellant and directing him as to what sort of evidence he should and should not provide, requiring page limits, reading lists, or finding some other ways to ensure that the most important material is highlighted.
I stress to the appellant that nothing in my decision should encourage him to believe that he can continue to flood the FtT with thousands of pages of material on the basis that something within it might be relevant He must do as the FtT will direct him, and co-operate with it. The FtT must act inquisitorially, but he does not have an unlimited demand on its time. There are the needs of other tribunal users to consider. As Baroness Hale says this is a co-operative process in which he has a part to play.
Conclusion
Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I therefore set the FtT decision aside and remit the case to be reconsidered by a freshly constituted panel.
Stephen Hocking
Deputy Judge of the Upper Tribunal
Authorised by the Judge for issue on 18 July 2025