IN THE UPPER TRIBUNAL Appeal No. UA-2024-001382-PIP
(ADMINISTRATIVE APPEALS CHAMBER)
On Appeal from the First-tier Tribunal (Social Entitlement Chamber) SC263/23/00159
BETWEEN
Appellant GJA
and
Respondent THE SECRETARY OF STATE FOR WORK AND PENSIONS
BEFORE UPPER TRIBUNAL JUDGE WEST
Decided on consideration of the papers: 15 April 2025
DECISION
The decision of the First-tier Tribunal sitting at Preston dated 23 November 2023 under file reference SC263/23/00159 involves an error on a point of law. The appeal against that decision is allowed and the decision of the Tribunal is set aside.
The matter is remitted to a differently constituted tribunal for a complete rehearing.
The new tribunal must considerand make relevant findings as to whether or not the claimant satisfied the criteria to be awarded the daily living component and/or the mobility component of personal independence payment from and including 27 January 2023 to and including 28 May 2024. In so doing the new tribunal should in particular have regard to the claimant’s grounds of appeal dated 10 September 2024 and the submissions of the Secretary of State dated 23 January 2025.
This decision is made under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.
REASONS
This is an appeal, with my permission, against the decision of the First-tier Tribunal sitting at Preston on 23 November 2023.
I shall refer to the appellant hereafter as “the claimant”. The respondent is the Secretary of State for Work and Pensions. I shall refer to her hereafter as “the Secretary of State”. I shall refer to the tribunal which sat on 23 November 2023 as “the Tribunal” and the tribunal to which I am remitting the matter as “the new tribunal”.
The claimant appealed against the supersession decision of 27 January 2023 that he was entitled to 0 points for the daily living component and 0 points for the mobility component of personal independence payment. He was not therefore entitled to either component of personal independence payment from and including 27 January 2023. The decision was subsequently reconsidered, but not revised, on 5 August 2022. He had previously been entitled to the daily living component, but not the mobility component, at the standard rate from and including 22 February 2022 to and including 21 February 2028.
The matter came before the Tribunal on 23 November 2023 when the appellant did not appear, having asked for the matter to be decided on the papers and the Tribunal considered that it was fair to procced in his absence. The appeal was refused.
The Tribunal found that the appellant was entitled to 0 points for the daily living component and 0 points for the mobility component of personal independence payment. He was not therefore entitled to either component of personal independence payment from and including 27 January 2023.
On 13 December 2024 I acceded to the claimant’s application and granted him permission to appeal. It seemed to me that there was an arguable case that there was an error of law on the part of the Tribunal for the reasons set out in his grounds of appeal.
On 23 January 2025 the Secretary of State provided submissions and supported the appeal. The claimant had nothing to add on 5 February 2025.
The Secretary of State confirmed that the claimant had made a further claim for personal independence payment on 29 May 2024 and was awarded the daily living component, but not the mobility component, at the standard rate from and including 29 May 2024 to and including 10 March 2027. The claimant has applied for a mandatory reconsideration of that decision. This appeal therefore only concerns the closed period from and including 27 January 2023 to and including 29 May 2024.
Neither party has sought an oral hearing and I do not consider that it is necessary to hold one in order to resolve the matter. Both parties have also consented to a decision without reasons under rule 40(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
The Secretary of State submitted that
“4.2 The FtT noted at paragraphs 18 to 19 of the SOR the following:
“It seems that the appellant contacted the DWP on 24 October 2022, and that it was due to this that the appellant completed another form AR1 on 6 November 2022 (p.127). On that form, he listed his medical conditions as eye/vision problems – Chalziones – June 2022, Meibomeous gland dysfunction that he had had “a long time”, chronic spine problems/nerve problems, symptoms of cauda equina syndrome that he had had “a long time” and “mental health problems diagnosed in 2017”. He listed his prescribed medication as eye drops and regular Amitriptyline and Naproxen. He claimed that he needed an aid/assistance or prompting with all the Daily Living and Mobility activities and that, in relation to his physical health, he struggled to stand for long enough to prepare food and that he could walk less than 20 metres. In the request he made by telephone for the respondent to reconsider its decision, he, in effect, restated those claims.
In his written appeal to this tribunal (p.3), of 31 March 2023, the appellant said that his depression was “all consuming” and that, when added to his physical problems, he could not reliably carry out Daily Living activities 1, 3, 4, 6 and 9, and that he could not walk more than 50 metres without pain.”
It is my submission that the FtT has erred in law in both its fact finding and duty to provide adequate reasons for its decision. The conclusion from the FtT on how they assessed the claimant’s functional abilities when dealing with the daily living and mobility activities claimed for, appears limited in their reasoning. It seems that what the FtT has provided at paragraphs 28 to 30 of the SOR, appears to be no more than a rehearsal of evidence and a conclusion without an explanation.
In dealing with the claimant’s representative’s ground of appeal regarding the FtT’s fact finding relating to his mental health and whether there were any improvements. I note the FtT made the following findings of facts at paragraph’s 28 to 30 of the SOR:
“The tribunal found that there had been an improvement in the appellant’s mental health since he claimed and was awarded PIP in June/July 2018. The tribunal accepted the evidence in the letter of his care co-ordinator (p.4) that, in 2017, the appellant had an acute episode of psychosis due to “psychosocial stressors”, and that he had features of psychosis, anxiety and depression that were prompting suicidal ideation. In mid-2018 he was seeing his care coordinator once a week and he had high levels of anxiety, low mood, and self-neglect. The tribunal concluded that, based on the evidence and the content of the Form PIPs of June 2018 (p.5) the appellant needed to be prompted with many activities of Daily Living and with following journeys, and that the respondent’s decision of 27 July 2018 was correct.
The tribunal also found that by at least the date of the decision to which this appeal relates, and possibly by late 2019, the appellant was not experiencing psychosis. Although the GP Factual report (p.149), lists the appellant’s disabling conditions as non-organic psychosis, acute and transient psychotic disorders and depression, the extract from the GP records (p.148), refers to those conditions as being significant past problems rather than active ones, and records that they ended on 10 July 2020 and 5 December 2017, respectively. On the Form AR 1, the appellant completed on 16 November 2021 (p.100), the appellant only listed depression and anxiety as his mental health conditions. It is evident from the detailed medical records that the appellant has provided that, by 2021, he was no longer in regular contact with secondary mental health services and that he did not have a care co-ordinator. On the form AR1 that the appellant completed in November 2023, the appellant did not state that he was taking any medication for his mental health, and that also seems to be the position when he had the HCP assessment in January 2023.
The tribunal accepted that, earlier in 2022, the appellant had had some periods of low mood. It noted the entry in his GP records of 15 March 2022 (p.J17), that, at that time, he was “feeling low” but that he did not want to be referred to mental health services nor to take anti-depressants, and that in August 2022 his mood was also low and that he did not know many people in the new area where he was living (p.J12), but by December 2022, according to the GP records (p.J10), the appellant described his mental health as OK, although he complained about his life, and he was helping at a food bank, eating meals such as roast dinners and burgers when he was hungry and was wanting to “live life and be happy”.
The FtT concluded at paragraph 59 of the SOR that:
“In summary, the tribunal concluded that the appellant’s state of mental health had improved significantly in the last year or two, although he still had periods when his mood was low. Given this improvement in his mental health, it upheld the respondent’s decision to supersede the previous decision which awarded points largely in relation to the appellant’s need for prompting to attend to some of the Activities of Daily Living. It also accepted that he had a musculoskeletal condition which he may have had for, on his account “a long time”, but which was now causing him more difficulties. However, the tribunal concluded that the effect of that health condition on his ability to perform the various Daily Living and Mobility Activities was not such as to satisfy the criteria for the award of points for any of those. It is the effect of a health condition or conditions on that ability and not the existence of the condition(s) themselves that are relevant. We found that the cysts/lumps that he had on his eyelids at time had no effect on his functional abilities.”
Whilst it is correct that the claimant’s GP stated at pages Addition J10, J12 and J17 (repeated above) that the claimant described his mental health as OK, wanting to live life and reported low moods “feeling low” but did not want to be referred to mental health services. However, it is unclear whether the FtT considered all the evidence.
I note at pages 147 to 152 that the claimant’s GP provided evidence noting the following at page 149 under question 1. Disabling conditions: “1) Unspecified non organic psychosis 2) Acute and transient psychotic disorders 3) Depression”. At question 2 under History of conditions the following is provided: “Please see summary sheet for dates of diagnosis. Has been seen by GP 25/08/2022 with deteriorating depression, suicidal ideation was advised to return for review but not seen since. Previously under c/o various mental health teams”. At page 150 it is reported that: “low moods, suicidal ideation, altered sleep, self-harm – cutting arms…”. At page 151 it is reported that that it is difficult to say what treatment or prognosis is planned as the claimant is currently not engaging.
Additionally, at page 158 the HealthCare Professional (HCP) stated the following when recording the details regarding his mental health:
“He had support from Mind matters last year but he did not find this helpful and was discharged.
He will feel that he will feel that he is sad and will feel low in mood.
He feels that he will have difficulties due to life circumstances.
He will feel that he has difficulties with concentration.
He will have to really push himself to do things.
He will have issues relating to self harm and this is cutting himself and he last did this about 16 months ago.
He has ongoing suicidal thoughts but no plans in place. HIs GP is aware of this.
He last had support from his GP about 3 weeks ago for his mental health…”
In view of the above, it is my submission that the FtT have taken a somewhat narrow and contradictory view of the evidence from the claimant’s GP and HCP (repeated above), for example, the claimant’s GP had recorded at page 149 that the claimant’s current disabling conditions are ‘Unspecified non organic psychosis, Acute and transient psychotic disorders and Depression, with the deteriorating depression and suicidal ideation when he was seen in August 2022’. However, the FtT appear to dismiss this and note that at paragraph 29 of the SOR that these were not listed as active. If this was the case, then why would the GP report these as being disabling conditions? Additionally, what did the FtT make of both the GP and HCP noting that the claimant has suicidal ideation and self-harms?
Furthermore, as noted by the claimant’s GP (repeated above), I note that the claimant is not engaging with the services relating to his mental health, notwithstanding evidence at page Addition J12 that on the 25/08/2022 that the claimant did state he wanted to see Social Prescriber and was given information regarding minds matter and signposting to mental health services was made. It is also noteworthy that on the 22/12/2022 that upon a review with the GP that claimant stated that he didn’t want bloods or his blood pressure checking, doesn’t have mental health support in the community and was offered social prescriber but ‘feels it won’t help’. It is also reported that there is a task regarding social support and a review of mental health care plan. Also, at page Addition J8 there is an entry dated 29/03/2023 that states: “SMS text message sent to patient Dear [claimant], please find link to ****[mental] health crisis teams as discussed alternatively you can call 999…”. Could this be suggestive of the claimant being unable to engage with the services? However, the FtT do not explore this further.
Upon ones reading of the SOR, it appears that the FtT have failed to use their inquisitorial function, specifically given that the claimant has limited engagement with his GP and mental health services. Therefore, it is unclear whether the FtT did consider whether the difficulties the claimant has with engaging with services may be indicative of the claimant’s difficulties, in so far as he struggles to accept and engage with the services that are available to him. It does not appear unreasonable to suggest that the claimant’s mental health difficulties may be expressive reasons for the claimant not being able to attend follow up appointments or engage with mental health services. As such, it is difficult to reconcile the FtT’s reasoning that the claimant’s mental health is improving.
Furthermore, I respectfully agree with the claimant’s representative that the FtT appear to have assumed that the claimant’s mental health has improved to such a level that he no longer satisfies the descriptors claimed for and previously awarded. The evidence in the form of the claimants AR1 form, the HCP report and further medical evidence, does not appear to have been adequately considered. The FtT appear limited when making their findings of facts. Nor do they adequately explain what evidence was considered when looking at the specific daily living activities claimed for. In failing to do so, I submit that this is a further error in law.
Although the FtT is entitled to give weighting to whatever evidence that it chooses, where there is conflicting evidence, it must in the first instance explore and consider it in a holistic manner and provide sufficient reasons explaining why it preferred the evidence that it had. In this appeal the FtT does not appear to have done that. There appears to be a distinct lack of reference to the evidence provided by the claimant and the medical evidence which demonstrate the nature of his health conditions. Therefore, it could be said that had the FtT given appropriate consideration to all the evidence, including accurately identifying the effects of the claimant’s conditions, the FtT may have considered the claimant’s limitations.
In view of the above, Irespectfully submit that the inadequacy of reasons makes it difficult for a claimant to know whether a Tribunal applied the correct legal tests in assessing the evidence, making its findings of fact, and arriving at its decision.
If the UT Judge accepts my submission that the FtT has erred in law on points identified earlier in this submission, then I respectfully request that the appeal be remitted to a different first-tier tribunal for further fact finding.”
For the reasons identified by the Secretary of State, I am satisfied that there was the Tribunal made errors of law which were material to the decision and for that reason the decision of the Tribunal should be set aside.
In the circumstances I do not need to consider whether the Tribunal made any other errors of law.
I am satisfied that the resolution of any other grounds of appeal will fall to be subsumed at the hearing before the new tribunal.
I therefore allow the appeal and set aside the decision of the Tribunal. I remit the matter to a new tribunal which should conduct a complete rehearing of the matter.
I must stress that the fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication as to the outcome of the rehearing by the new tribunal. It is quite possible that the new tribunal may end up effectively coming to the same decision as the previous Tribunal, namely that the claimant was not entitled to either component of personal independence payment from and including 27 January 2023 to and including 28 May 2024.
Alternatively, it is possible that the new tribunal might take a different view of the facts from that of the Tribunal and reach the conclusion that in fact the claimant was entitled to one or other or both components of personal independence payment from and including 27 January 2023 to and including 28 May 2024.
It is for the new tribunal itself to decide which of these alternative options open to it applies, depending on the view it takes of the facts and providing it makes proper findings of fact and gives adequate reasons. It would not be appropriate for me to express any opinion either way on the merits of the appeal.
The following directions apply to the hearing before the new tribunal:
The new tribunal should not involve any member who was a member of the Tribunal involved in the hearing of the appeal.
The new tribunal must considerand make relevant findings as to whether or not the claimant satisfied the criteria to be awarded the daily living component and/or the mobility component of personal independence payment from and including 27 January 2023 to and including 28 May 2024. In so doing the new tribunal should, in particular, have regard to the claimant’s grounds of appeal dated 10 September 2024 and the submissions of the Secretary of State dated 23 January 2025.
Mark West
Judge of the Upper Tribunal
Signed on the original on 15 April 2025