BH v Secretary of State for Work and Pensions

The decision of the First-tier Tribunal sitting in Wolverhampton on 1 August 2024 under reference 1701-7648-0764-0256is set aside and I remit this matter to a differently constituted panel in the Social Entitlement Chamber of the First-tier Tribunal for reconsideration.

This matter shall be referred to a District Tribunal Judge for listing and case management directions.

Both the appellant and the respondent agree that the decision of the tribunal was made in error of law. Both parties have indicated that they are content for this matter to be dealt with without reasons and on the papers.

Having considered the papers and the submissions, I am satisfied that I can make a decision on this appeal without directly hearing further from the parties. It is fair and just to do so. The respective positions are clear. I am only deciding whether there has been an error of law in the first tribunal’s decision. As a result, and with the overriding objective in mind, I do not see any benefit to either party in arranging a further hearing before this Upper Tribunal.

To assist the First-tier Tribunal (‘FTT’) on remittal, I produce below the concerns ventilated by Upper Tribunal Judge Church in granting permission in this Personal Independence Payment (‘PIP’) appeal:

“Your representative…has raised a concern about the Tribunal’s decision-making in relation to the activity of preparing food (daily living activity 1). The Tribunal noted your evidence that you had spilled boiling water and switched on the wrong burner on the hob a couple of times, causing handles to melt, but it didn’t explain what it made of that evidence, and while it said that it didn’t find the threshold for an award of points under descriptor 1(e) to be reached, it didn’t explain how it concluded that you were able to carry out the activity “safely”.

I am concerned that the Tribunal may not have applied the right legal test in assessing safety, which requires the tribunal to consider whether there is “a real risk that cannot be ignored” of a risk eventuating, and considering not only the likelihood of harm, but also the potential consequences. I am concerned that if the Tribunal failed to apply the proper test for safety in respect of this activity it may have similarly applied the wrong tests in respect of the other activities it considered.

The Tribunal may also have misunderstood the proper test for an award of points under daily living activity 9(b).”

The Secretary of State supports this appeal. In sum, the Secretary of State submits in relation to activity 1, preparing food:

“The material aspect of the appeal was whether the Appellant’s evidence required the FtT to consider her functional impairment(s) were such that she could not carry out PIP activities safely to an acceptable standard, repeatedly and within a reasonable time period in accordance with Regulation 4(2A) of the Social Security (PIP) Regulations 2013. Whilst the FtT acknowledged the Appellants evidence that she had spilled boiling water, and switched on the wrong burner on the hob a couple of times, causing handles to melt, it failed to consider the element of safety in the Appellants ability to carry out DL1. Awarding points for needing “aids” to prepare food was not sufficient enough to address the possibility of similar accidents recuring...”

In relation to activity 9, the Secretary of State further submits:

“…the FtT failed to give weight to material evidence and has not provided adequate reasons for its decision in this regard. The FtT did not fully engage with the test for DL9. Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (“the 2013 regulations”) provides that:

“engage socially” means –

I adopt the reasoning set out by Judge Church in granting permission to appeal, together with the submissions advanced on behalf of the Secretary of State in support of that reasoning.

The identified omissions constitute an error of law and warrant the matter being remitted. In these circumstances, the appeal must be allowed. In particular, the FTT’s reasoning in respect of daily living activities 1 and 9 amounts to a material error of law, arising from its failure to engage with the claimant’s difficulties in performing these activities.

I note for the tribunal below that in HA v Secretary of State for Work and Pensions (PIP) [2018] UKUT 56 (AAC), Judge Rowley emphasised that, when considering descriptor DL9, the tribunal must examine the appellant’s ability to satisfy all three components of engaging socially.

“In my judgment it was incumbent on the tribunal to consider the claimant’s ability to satisfy the three components of the phrase “engage socially”, and to make adequate findings of fact as to the nature and quality of his interactions with other people (HJ v SSWP [2016] UKUT 0487 (AAC)). However, the tribunal simply listed those with whom it said the claimant could engage, without investigating or making findings in relation to what actually happened during his interactions with them. In the light of the evidence as to (for example) his selective mutism, his inability to make eye contact and read facial expressions, his inability to understand body language and his tendency to bite himself or lash out during communication, it did not necessarily follow that – without more - the claimant was able to “engage socially” even with those people listed by the tribunal, for the purposes of daily living activity 9, at least on over 50% of days (regulation 7).”

I agree with the submissions of both the appellant and the Secretary of State that the FTT appears to have placed disproportionate weight on the appellant’s ability to engage with a limited range of individuals in a specific context.

In AC v Secretary of State for Work and Pensions (PIP) [2021] UKUT 216 (AAC), the Upper Tribunal held that:

“The Tribunal found that the Appellant could engage face to face with unfamiliar people in the context of visits to the Warhammer shop and participation in Warhammer competitions, and it decided that “if the Appellant chose to do so he could socially engage with those he wished to mix with for example in competition or locally with his friends from school”, awarding no points accordingly. The Tribunal may have erred in finding that the ability to engage socially in such a specific context was sufficient for it to conclude that he was capable of performing the activity.”

Accordingly, I direct that the matter be remitted to a differently constituted tribunal for a full rehearing.

For the avoidance of doubt, the fact that the appeal has succeeded at this stage should not be regarded as any indication of the outcome before the First-tier Tribunal in due course.