Appeal No. UA-2025-001043-PIP
Between:
AF
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:
Respondent: Ms Hawley
On appeal from
Tribunal: Social entitlement chamber
Tribunal Case No: SC242/25/00529 / 1733397135693895
Tribunal Venue: Fox Court
Decision Date: 17 March 2025
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. The parties’ positions are clear and nothing raised by the appeal calls for an oral hearing, which would cause delay. 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
The appellant made a claim to PIP on 25 May 2024. She was assessed by a HCP on 9 August 2024 and on 16 Augus5t 2024 was awarded six points for daily living activities 1(b), 4(b), 6(b) and no points for mobility activities. Therefore she was not entitled to any payment of PIP.
That outcome weas unchanged on mandatory reconsideration on 19 November 2024.
The appellant appealed to the FtT. On 17 March 2025 the FtT awarded the appellant the same six points for daily living activities ( 1(b), 4(b), 6(b)) and four points for mobility activity 2b. the result remained that the appellant was not entitled to any payment in respect of either element of PIP.
Grounds of appeal
Giving permission to appeal UTJ Wright said this:
The grounds of appeal put forward by Ms AF can be summarised as: (i) the FTT failed to adequately consider the fluctuating nature of her conditions; (ii) it failed to apply regulation 4(2A) of the PIP Regs 2013; and (iii) the FTT did not engage adequately with the evidence, particularly her GP’s evidence.
The first two grounds of appeal would appear to run together. In her appeal to the FTT she said the following of relevance:
“I believe that the extent to which my condition affects me is being drastically overlooked as well as not being understood. The evidence I have given is to the extent of days where I feel more able and even then help is needed when walking and the inability to sleep due to pain has a drastic effect on my ability to complete day-to-day activities. Some activities such as simple housework, which can be completed in one day, are finished with immense pain, regular breaks and pauses, and the help of a family member…..At home, there is always assistance with meals, cleanliness and dressing and undressing and this assistance does make it's way in an outdoor setting too. The key thing to take into consideration is that there are more negative painful days with distress and assistance then there are able days, and even able days there is still supervision and help.”
(The underlining is mine and has been added for emphasis.)
The respondent’s reply
The respondent says this (edited slightly for length):
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 with regards the claimant’s difficulties with daily living activities 1 and 6, and mobility activity 2 at paragraphs 11-12 and 14 of the statement of reasons (SOR), appears to be no more than a rehearsal of part of the evidence and a conclusion without an adequate explanation …
With regards to daily living activity 1 – (Preparing food) the FtT on considering the evidence before them found at paragraph 11 of the SOR that the claimant would benefit from the use of aids when undertaking the activity…The FtT in reaching their conclusions … that the claimant would benefit from using an aid appear to be limited in their findings, leaving the reader in some doubt as to what aids may be of assistance to the claimant who has been diagnosed with a frozen left shoulder and inflammation of the shoulder and upper arm, which would allow her to undertake the preparation and cooking of a simple meal in accordance with the provisions of Regulation 4(2A) and 7 of the Social Security (Personal Independence Payment) Regulations 2013 (the PIP Regs 2013).
Additionally, I would note that the FtT did not establish which was the claimant’s dominant hand/arm and whether she would be able to make use of aids when preparing or cooking a simple meal. Was the FtT not obliged, as a minimum, to exercise their inquisitorial duty in order to provide an explanation, as to why in their opinion aids would be of assistance to the claimant in her particular circumstances? …
Similarly, with regards to daily living activity 6 – (Dressing and undressing) the FtT concluded at paragraph 12 of the SOR the that the claimant required aid to dress and undress in accordance with the provisions of Regulation 4(2A) of the PIP Regs 2013…The FtT’s findings …`1 appear to be somewhat narrow, again concentrating on the claimant’s use of aids to help her dress and undress in accordance with the provisions detailed within Regulation 4(2A) and 7 of the PIP Regs 2013. Equally, the issues I have detailed in my submission with regards to daily living activity 1 and the use of aids likewise applies to the claimant’s ability to use aids to dress and undress.
The FtT’s findings (repeated above) appear to be somewhat narrow, again concentrating on the claimant’s use of aids to help her dress and undress in accordance with the provisions detailed within Regulation 4(2A) and 7 of the PIP Regs 2013. Equally, the issues I have detailed in my submission with regards to daily living activity 1 and the use of aids likewise applies to the claimant’s ability to use aids to dress and undress.
…
Moving on to mobility activity 2 – (Moving around), the claimant suffers from lower back pain, bilaterial hip pain, and knee pain…The FtT on considering the evidence before them agreed with the scoring by Secretary of State of 4 points for mobility descriptor 2(b) – Can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided…The FtT’s findings (repeated above) appear to be limited, the claimant reports being in pain when mobilising and that help is needed even on her more able days. The claimant also reports on days when her pain levels are higher her mobility is further restricted, and she gives herself breaks when mobilising. The FtT do not seem to have engaged with the claimant’s evidence concerning the variability of her pain levels or that she takes breaks when mobilising. The FtT appear to simply concentrate of the claimant’s ability mobilise 100 metres. It is therefore unclear if the FtT have considered whether the claimant was walking in pain when covering the distance of 100 metres before having to take a break.
Moreover, it is unclear upon one’s reading of the SOR whether the FtT had due regard to the guidance provided in decision PS v SSWP [2016] UKUT 0326 (AAC) at paragraph 11, which states the following:
What the Appellant was saying in his written and oral evidence was that he suffered pain when he walked, that he would walk slowly for a short distance despite the pain but that it would get worse until the pain would stop him. It could not properly be assumed that, because the Appellant managed to keep going for a certain distance, any pain he experienced while he was walking was not relevant. If a claimant cannot carry out an activity at all, regulation 4(2A) does not come into play. Where a person is able to carry out an activity, pain is clearly a potentially relevant factor to the question whether he or she can do so to an acceptable standard.”
Furthermore, upon one’s reading of the FtT’s SOR although they note the claimant’s evidence that she takes breaks when mobilising on days when she experiences higher levels of pain, they do not make any findings as to how frequently these days occur. It is noteworthy, that the claimant reports [p.3] that “…there are more negative painful days with distress and assistance then there are able days, and even able days there is still supervision and help
Moreover, the FtT in the SOR at paragraph 11 of the SOR with regards to daily living activity 1 (Preparing food) accepted that the claimant has difficulties with standing due to pain and in their opinion this “…justified a finding of descriptor 1b on the basis that she would need a stool in order to prepare food safely, reliably, and in a reasonable time frame.” In light of the FtT’s acceptance that the claimant has pain when standing, they should have exercised their inquisitorial duty to make findings concerning the breaks the claimant takes when mobilising, in order to determine whether on the majority of days she is able to mobilise repeatedly, reliably and to an acceptable standard as per Regulations 4(2A) and 7 of the PIP Regs 2013.
Although the FtT is entitled to give weighting to whatever evidence that they choose, where there is conflicting evidence it 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 do not appear to have done that. There seems to be a distinct lack of evaluation of the claimant’s evidence regarding the impact of the co-morbidities of her longstanding musculoskeletal problems and the pain she experiences when undertaking daily living activities 1 and 6, and mobility activity 2, and also of the evidence contained within the GP’s letter dated 07/01/2025
Decision
I have set the respondent’s comments out at length because they seem to me to be a good summary of the ways in which the FtT’s reasoning and engagement with the evidence fails short of the legally required standard.
As UTJ Wright highlighted when granting permission to appeal, a key issue in this case is the appellant’s evidence that the impact of her conditions fluctuates. This will require the FtT to consider the impact of her conditions on more and less able days, determine how many more and less able days there are, and apply regulation 7 of the Social Security (Personal Independence Payment) Regulations 2013 to derive the correct descriptor.
I am also concerned that Regulation 4(2A) has not been applied correctly (or, at any rate, that the reasoning around that regulation is not sufficient), in particular with reference to “to an acceptable standard” and the evidence that the appellant may be in pain while performing certain activities. Given that the appellant has a problem only with one arm I agree that it would have been better to have identified if that was her dominant arm, but in context I do not feel the failure to do so undermines the reasoning presented.
The respondent points out certain omissions or possible inconsistencies in the SoR some of which form a further basis on which the appeal must be allowed. I do not agree with the respondent that the SoR are in adequate in identifying the aids needed to prepare a simple meal; these are clearly a stool, and whatever aids would assist a person with reduced use of one arm. There is no need to spell out what they may be.
I am somewhat less clear what aids it is said that the appellant would use to dress and undress. Given the difficulties with one arm, which I can imagine would make dressing and undressing challenging in a way that it is not obvious tom me an aid would overcome, that lack of specificity does leave me unsure if this activity has properly been considered in light of the evidence and for that reason was a good ground of appeal.
The reasoning under mobility activity 2 is inadequate, because it fails to address how far the appellant can walk to an acceptable standard. She may be in unacceptable pain almost immediately but “push through” to manage a certain distance, she may be largely unaffected by pain, or somewhere in the middle. Her evidence and the other relevant evidence on this issue must be considered and a specific finding made.
Although I have referred to certain specific activities the entire claim should be reconsidered.
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. I stress that this appeal having succeeded carries no implication for whether the FtT will or will not reach a decision that is more favourable to the appellant. That is a matter for it.
The above decision has been made without obtaining, and therefore without sight of, any observations the appellant may have wished to make on the Secretary of State’s submission supporting her appeal to the Upper Tribunal. I took the view it was better to decide the appeal in the appellant’s favour now than to delay making the decision while waiting for her to make any observations in reply. To that extent, I vary the directions of 13 October 2025 on this appeal. If, however, the appellant would have wished by her observations in reply to disagree with her appeal to the Upper Tribunal being allowed in the above manner, she can apply to have this decision set aside. How she can do so will be explained in in the covering letter issued with this decision. Whether the decision will be set aside, if such an application is made, will depend on the grounds the appellant may advance disagreeing with her appeal having been decided without any observations in reply from her and what those observations would have stated disagreeing with the Secretary of State’s support for the appeal (if she would have wished to disagree with the Secretary of State’s submission of 27 November 2025)
Stephen Hocking
Deputy Judge of the Upper Tribunal
Authorised by the Judge for issue on 18 December 2025