Appeal No. UA-2024-001406-PIP
Between:
LL
Appellant
- v -
The Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Butler
Decided on consideration of the papers
Representation:
Appellant: Representing self
Respondent: Mrs H. Hawley, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-tier Tribunal (Social Entitlement Chamber)
Tribunal Case No: SC142/23/00002
Tribunal Venue: Ashford (decided on the papers)
Decision Date: 23 June 2023
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 23 June 2023.
The new Tribunal must not take account of circumstances that did not apply at the time of the Secretary of State’s decision dated 12 May 2022. 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.
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.
Copies of this decision, the permission to appeal decision, and the submissions on behalf of the Secretary of State (dated 12 February 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
LL made a claim for PIP on 02 February 2022. The Department for Work and Pensions (“DWP”) acting on behalf of the Secretary of State for Work and Pensions, asked her to take part in a medical assessment by telephone on 19 April 2022.
As a result of that assessment, on 12 May 2022, DWP decided to award LL no points for either the daily living activities or the mobility activities of PIP. As a result, DWP refused LL’s PIP claim.
LL appealed DWP’s decision. On 23 June 2023, a First-tier Tribunal (“FTT”) decided LL’s appeal on the basis of the written evidence. The FTT decided LL should be awarded descriptors 1.b (2 points), 3.b (1 point) and 4.b (2 points) for the PIP daily living activities (a total of 5 points). The FTT decided LL should also be awarded mobility descriptor 2.b (4 points). As the threshold for an award of either the daily living or mobility component of PIP is 8 points, the FTT decided LL was not entitled to an award. It refused LL’s appeal.
On 16 September 2024, LL applied to the Upper Tribunal for permission to appeal against the FTT’s decision.
Permission to appeal
In a decision dated 07 January 2025, I admitted LL’s application for permission to appeal (which the FTT had not admitted on grounds that it was made late).
I granted LL 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:
Explaining the decision to determine the appeal on the papers: the FTT recorded at paragraph 6 of its Statement of Reasons that LL asked for the appeal to be heard on the papers and that it considered rules 2 and 27 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 (“the FTT rules 2008”) and the interests of justice before proceeding. However, the FTT did not explain why it considered it could fairly and justly determine LL’s appeal on the basis of the papers;
Adequacy of factual findings and / or reasons for the FTT’s decision about daily living activities: the FTT set out findings of fact at paragraph 20 of its Statement of Reasons. Having done so, it was not clear that the FTT applied those findings of fact to relevant PIP activities such as managing toilet needs and dressing and undressing. The FTT arguably failed to make adequate findings of fact about those activities or to provide adequate reasons for its activities;
Applying binding case law about dressing and undressing: it was unclear whether the FTT had applied the Upper Tribunal decision in PE v SSWP (PIP) [2015] AACR 10. The Upper Tribunal explained a balance must be struck between considering reasonable alternatives for dressing and not defining away the effects of a person’s disability on them. It was unclear whether the FTT’s assessment LL could use a front-fastening bra and her use of different clothing to manage pain and stiffness, struck the balance in the necessary way. Alternatively, the FTT may have failed to provide adequate reasoning to explain this part of its decision; and
Adequacy of factual findings and reasoning for the FTT’s decision about mobility activity 1 (planning and following a journey): there was evidence in the PA4 report dated 19 April 2022 that travelling on public transport made LL feel anxious, sick, caused nausea, sweating and a pounding heart and LL last used public transport accompanied by her sister. The FTT found LL avoided public transport but did not address whether using it would or might cause her overwhelming psychological distress. It may not have carried out the holistic assessment of LL’s ability to undertake a familiar or unfamiliar journey including on foot and by public transport, as explained in JC v SSWP (PIP) [2019] UKUT 181 (AAC).
The Secretary of State’s submissions
Mrs Hawley is the Secretary of State’s representative in these proceedings. She supports the appeal to the Upper Tribunal in a helpful written submission dated 12 February 2025.
Mrs Hawley invites the Upper Tribunal to set aside the FTT’s decision dated 23 June 2023 for containing material errors of law, for the reasons set out below.
Explaining the decision to determine the appeal on the papers: Mrs Hawley submits that the FTT mentions rule 27 of the FTT Rules 2008 but does not appear to have applied the correct test, including considering rule 2(1) of those rules. Mrs Hawley submits the FT failed to explain why it considered it fair and just to proceed with a paper determination of the appeal.
Adequacy of factual findings and / or reasoning about daily living activities: Mrs Hawley submits that the FTT made findings that LL experienced ankle pain and balance difficulties and stiffness causing problems reaching to her mid-back and hair. Mrs Hawley submits that when the Statement of Reasons is read as a whole, it is unclear whether the FTT applied those factual findings to all the relevant daily living activities, such as managing toilet needs and dressing and undressing. Mrs Hawley submits the FTT has failed to use its inquisitorial function to make adequate findings about those activities and whether LL could carry them out within the meaning of regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013.
Adequacy of reasoning about how LL dressed and undressed: Mrs Hawley submits that at paragraph 20e of its Statement of Reasons, the FTT appeared to accept that LL had difficulties reaching behind her back to do up her bra due to pain and stiffness from her right shoulder subluxation and that LL could use a front fastening bra. The FTT presumably formed the opinion that a front fastening bra would overcome the functional difficulties LL experienced when dress and undressing this part of her body. Given this and given it accepted LL had a functional restriction due to her shoulder difficulties, the FTT had a duty to explain why it concluded LL did not reasonably require an aid to address and undress and why a front fastening bra did not constitute one.
Adequacy of factual findings and reasoning about mobility activity 1 (planning and following a journey): Mrs Hawley submits that having considered the evidence before it that LL experienced difficulties using public transport (PA4 report dated 19 April 2022, pages 26 to 47 of FTT bundle), the FTT found LL was able to plan and follow a route of a journey unaccompanied, and in accordance with regulation 4(2A). The FTT acknowledged LL avoided public transport and last used a bus with her sister. Mrs Hawley submits the FTT failed to analyse the evidence in the PA4 report, or address whether using public transport might cause LL to experience overwhelming psychological distress. This was particularly pertinent given the symptoms of anxiety recorded in the PA4 report.
Mrs Hawley submits it is unclear from reading the Statement of Reasons whether the FTT considered the case of JC. Furthermore, she submits the FTT failed to make adequate factual findings about the impact and severity of LL’s anxiety when using public transport and whether this amounted to overwhelming psychological distress.
Mrs Hawley submits that the errors of law she has addressed are material because if LL had scored 3 more points for daily living activities and / or 4 more points for mobility activities, she would have met the threshold for an award of PIP. She invites the Upper Tribunal to set aside the FTT’s decision and remit LL’s appeal to be decided by a differently constituted tribunal.
In light of the submissions provided by Mrs Hawley, LL has, unsurprisingly, confirmed she does not wish to make any further submissions.
Why there was no oral hearing of this appeal
Neither party requested an oral hearing of the appeal. I took these preferences into account and considered the appeal file. I decided the interests of justice did not require an oral hearing. The parties agree there were material errors of law by the FTT. I therefore determined the appeal on the papers. It was proportionate to do so.
There was a delay in LL’s appeal being referred back to me to decide. On behalf of the Upper Tribunal, I apologise to LL for this, and the inconvenience caused to her.
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 Mrs Hawley at paragraphs 9 to 13 above and dealt with in more detail by her submission dated 12 February 2025.
Conclusion, including disposal
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 23 June 2023 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 has asked me to remake the FTT’s decision. In any event, it is necessary for further 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 LL’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about whether she was entitled to PIP at the date of DWP’s decision on 12 May 2022.
Although I have set aside the FTT’s decision dated 23 June 2023, I am not making any findings, or expressing any view, about whether LL should be awarded PIP. The next tribunal will need to hear evidence and make its own findings of fact and provide its reasoning for the decision it reaches.
Judith Butler
Judge of the Upper Tribunal
Authorised by the Judge for issue: 03 September 2025