Appeal No. UA-2025-000479-PIP
Between:
A.S.
Appellant
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Wikeley
Decided on consideration of the papers
Representation:
Appellant: Mr J. Cunningham, Durham Welfare Rights
Respondent: Mrs H. Hawley, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-Tier Tribunal (Social Security and Child Support)
Tribunal Case No: SC236/23/00691
Digital Case No: 1691145702600375
Tribunal Venue: Sunderland
Hearing Date: 8 January 2025
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with this decision and the following directions.
DIRECTIONS
This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.
The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 8 January 2025.
The Appellant is reminded that the tribunal can only deal with the appeal, including her health and other circumstances, as they were at the date of the original decision by the Secretary of State under appeal (namely 29 May 2023).
If the Appellant has any further written evidence to put before the tribunal and, in particular, further medical evidence, this should be sent to the HMCTS regional tribunal office within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).
The new Tribunal hearing the remitted appeal will be dealing with the closed period from 13 January 2023 to 5 February 2025 (see paragraph 14 below).
The new First-tier Tribunal is not bound in any way either by the decision of the previous tribunal or the new award. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal or the new award.
These Directions may be supplemented by later directions by a Tribunal Legal Officer, Tribunal Registrar or First-tier Tribunal Judge.
REASONS FOR DECISION
Introduction
The Appellant’s appeal to the Upper Tribunal succeeds and so there will need to be a completely fresh hearing of the original Personal Independence Payment (PIP) appeal before a new First-tier Tribunal (FTT).
The Upper Tribunal’s decision in summary and what happens next
I allow the Appellant’s appeal to the Upper Tribunal. The decision of the First-tier Tribunal involves a legal error. For that reason, I set aside the Tribunal’s decision.
The Appellant’s case now needs to be reheard by a new and different First-tier Tribunal. I cannot predict what will be the outcome of the re-hearing. So, the new tribunal may reach the same, or a different, decision to that of the previous Tribunal. It all depends on the findings of fact that the new Tribunal makes. The fact that an enhanced rate award of both PIP components has been made by the DWP for a subsequent period is no guarantee that the remitted appeal covering an earlier period will succeed.
The factual background
On 29 May 2023 a DWP decision-maker scored the claimant at 0 points for both the daily living and mobility descriptors of PIP, and as such the claimant was not entitled to an award of PIP from the date of claim, being 13 January 2023. The FTT, upon hearing the appeal (on 08 January 2025), refused the claimant’s appeal and confirmed the Secretary of State’s decision dated 29 May 2023, albeit that the FTT scored the Appellant at 4 points for daily living descriptor 9(c) (and 0 points for the mobility descriptors of PIP). However, the points scored by the claimant were still not sufficient for her to be awarded PIP.
The grounds of appeal
The Appellant’s grounds of appeal to the Upper Tribunal were detailed as follows:
The Tribunal’s finding, at paragraph 35b, that ‘She could easily plan journeys including bus or train journeys for quieter times’ is wrong in law.
I pray in aid the Upper Tribunal decision in TR v SSWP [2016] AACR 23, where it was decided that if a claimant could satisfy a descriptor where it only applied for part of a day.
If the appellant could not undertake a journey by public transport at rush hour in the morning and the evening, then, I submit, this would be a substantial part of the day when the appellant could not carry out the activity, and she is therefore to be treated as not being able to carry out the activity for the whole day.
Further, in stating at para 35a that "There is no requirement to mix or engage with others out of doors” the Tribunal did not take into account the appellant's reasonable fears that other people might attempt to engage in social contact with her.
This error had a material effect on the decision as to whether the appellant was entitled to the Mobility component of PIP.
I gave permission to appeal, commenting as follows:
The Appellant’s grounds of appeal are narrowly defined and arguable. There may, however, be some force in the FTT’s observation when refusing permission at first instance that the tribunal did not find the Appellant “could not travel at any time of day just that she could make reasonable adjustments which would enable her to travel more comfortably”. I note that the FTT found the Appellant’s evidence to be unreliable, but this finding as to credibility does not appear to impact on SoR para 35.
Mrs H Hawley, the Secretary of State’s representative in these proceedings, supports the appeal. She sums up her analysis as follows (SOR = Statement of Reasons):
It is my submission that the FtT has erred in law, in both their fact finding and duty to provide adequate reasons for their decision. The conclusions from the FtT on how they assessed the claimant’s functional abilities appears limited in their reasoning. It seems that what the FtT has provided within the SOR with regards the claimant’s difficulties with mobility activity 1 – (Planning and following journeys) at paragraphs 26-27 and 35 of the SOR, appears to be no more than a rehearsal of part of the evidence and a conclusion without an adequate explanation.
Having reviewed the evidence, Mrs Hawley continues her analysis as follows:
The FtT in reaching their conclusions … appear to have been somewhat limited in their findings regarding the claimant’s difficulties with mobility activity 1. The FtT seem to accept that the claimant has enduring mental health difficulties and whilst the FtT are correct in their observations at paragraph 35a of the SOR that there is no requirement for the claimant to “mix or engage with others” outdoors. It is my submission that the FtT appear to have conflated the criteria of daily living activity 9 – (Engaging with other people face to face) and the claimant’s difficulties engaging with others due to her social phobia with the criteria relating mobility activity 1 when reaching their conclusions.
Moreover, the conflating of daily living activity 9 with mobility activity 1 can be seen with the FtT’s findings at paragraph 35b of the SOR where the FtT observe that the claimant “…could easily plan journeys including bus or train journeys for quieter times.” This appears to demonstrate that the FtT is again combining the claimant’s difficulties with engaging with other people face to face, with her difficulties when following the route of a journey. The FtT appear to give the reader of the SOR the impression that the claimant could plan and undertake journeys using public transport at less busy and quieter times of the day, thereby reducing the chances of the claimant having contact with other people or crowds of people, which she tries to avoid. Additionally, the FtT has failed to explain why they believed that quieter times would allow the claimant to plan and follow a journey. Would the claimant’s difficulties be overcome in quieter times?
The FtT when considering whether the claimant satisfies any of the point scoring descriptors within mobility activity 1 should have used their inquisitorial duty to make findings as to whether the symptoms of the claimant’s mental health conditions, which I have detailed earlier in my submission at paragraphs 4.3 to 4.5 have a functional impact on her ability to follow the route of a journey unaccompanied and in accordance with the provisions of regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 (the PIP Regs 2013) and the guidance provided in the decision MH v SSWP [2016] UKUT 0531 (AAC), now a reported decision [2018] AACR 12 (“MH”).
Upon one’s reading of the SOR is it unclear whether the FtT has done that, and it is therefore my submission that the FtT have materially erred in law, as they have not provided sufficient findings and reasons within the SOR to support and explain their decision that the claimant did not satisfy any of the point scoring descriptors within mobility activity 1.
Although the FtT is entitled to give weighting to whatever evidence that they choose, where there is conflicting evidence they must in the first instance explore and consider it a holistic manner and provide sufficient reasons explaining why they preferred the evidence that they had. In this appeal the FtT does not appear to have done that. There seems to be a distinct lack of evaluation of impact of the co-morbidities of the claimant’s mental health difficulties on her ability to follow the route of a journey unaccompanied in accordance with the provisions detailed with regulation 4(2A) of the PIP Regs 2013 and the guidance provided in the MH decision. 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 her limitations. As such, I submit that the FtT have failed to give adequate reasons, as to why evidence in parts was not accepted when deciding what points should be awarded.
For completeness, I should add that the Appellant’s representative has no further substantive observations.
Analysis: a summary
I agree with the detailed analysis of the Secretary of State’s representative in her written submission on the appeal, as summarised above.
I am accordingly satisfied that the First-tier Tribunal erred in law for those reasons. I therefore allow the Appellant’s appeal to the Upper Tribunal, set aside (or cancel) the Tribunal’s decision and remit (or send back) the original appeal for re-hearing to a new tribunal, which must make a fresh decision.
What happens next: the new First-tier Tribunal
There will therefore need to be a fresh hearing of the appeal before a new First-tier Tribunal. Although I am setting aside the previous Tribunal’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to PIP for the period in issue (on which see further below) and, if so, which component(s) and at what rate(s). That is a matter for the good judgement of the new Tribunal. That new Tribunal must review all the relevant evidence and make its own findings of fact.
In doing so, however, unfortunately the new Tribunal will have to focus on the Appellant’s circumstances as they were as long ago as in May 2023, and not the position as at the date of the new hearing, which will obviously and regrettably be more than two years later. This is because the new Tribunal must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998). The original decision by the Secretary of State, which was appealed to the FTT, was taken on 29 May 2023.
The new Tribunal will also note it is now dealing with the case as covering a closed period. This is because the Appellant made a further (but this time successful) claim for PIP on 6 February 2025. On this occasion a DWP decision-maker awarded her the enhanced rate of both PIP components for the period from 6 February 2025 to 12 May 2029, having scored 15 points for daily living descriptors (1b, 4e, 5b, 6b, 9c, 10b) and 22 points for mobility activities (1d and 2e). As a result, the FTT hearing the remitted appeal will therefore only be dealing with the closed period of just over two years from 13 January 2023 to 5 February 2025.
The mere fact that an award of PIP has been made for a later period is no guarantee that the remitted appeal will be successful, not least as the evidence may well be different for the different periods in question.
Conclusion
I therefore conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The case must be remitted for re-hearing by a new tribunal subject to the directions set out above (section 12(2)(b)(i)). My decision is also as set out above.
Nicholas Wikeley
Judge of the Upper Tribunal
Authorised by the Judge for issue on 22 September 2025