DG v Secretary of State for Work and Pensions

The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

The reconsideration must be undertaken in accordance with KK v Secretary of State for Work and Pensions [2015] UKUT 417 (AAC).

The tribunal that re-determines the appeal must not include any member of the panel whose decision has been set aside by the Upper Tribunal.

If the Appellant wishes to put any further written evidence or written argument before the First-tier Tribunal, that evidence should be sent to the relevant HMCTS regional tribunal office within one month of this Decision being issued. If the Appellant cannot provide this material within that period, he should write to the Tribunal office within that period and let them know when it might be expected.

The Appellant should understand that the new Tribunal will be looking at his health problems and how they affected his daily activities at the time that the decision under appeal was made, i.e. 22 June 2023. Any further evidence, to be relevant, should shed light on the position at that time. 

These Directions may be supplemented or amended by later directions made by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

This is the Appellant’s appeal against the decision of the First-tier Tribunal (“the FTT”), dismissing his appeal against a decision of the Respondent, the Secretary of State for Work and Pensions, upon his entitlement to Personal Independence Payments (“PIP”). Permission to appeal to the Upper Tribunal was given by Upper Tribunal Judge Butler on 5 June 2025. The decision under appeal was dated 22 June 2023.

By submissions dated 20 August 2025, the Secretary of State’s representative has supported the appeal, agreeing that there are material errors of law in the FTT’s decision and inviting the Upper Tribunal to send the case back to the tribunal for rehearing. The Appellant has acknowledged these submissions but does not make any further substantive submissions. In those circumstances, all I need to do is to say relatively briefly why I have set aside the FTT’s decision and explain what is meant by a rehearing. It is not necessary to set out the history of the case or to analyse the evidence and arguments in detail.

Neither party has asked for an oral hearing, and I am satisfied that I can dispose of this matter fairly and justly on the papers. Not only is there agreement between the parties on the appropriate outcome, but the material issues have been fully articulated in the written arguments before me and the underlying papers.

Why I have set the First-tier Tribunal’s decision aside

Upper Tribunal Judge Butler gave detailed reasons for granting permission to appeal, noting that the following matters were arguably errors of law:

The Appellant consented to a hearing on the papers, and the FTT recorded that it had considered the requirements of rules 2 and 27 of the relevant rules and was satisfied it was “able to decide the case in this way.” However, UT Judge Butler stated that it was arguable that FTT did not address the second limb of the test in rule 27 and (specifically) why it considered it fair and just to proceed without a hearing. The Respondent has agreed that this was a material error of law.

It might be thought that the FTT’s statement that it was “able” to decide the matter on the papers is adequate, in those circumstances, and that to require more would be unnecessary or formulaic only. However, in MM v Secretary of State for Work and Pensions (ESA) [2011] UKUT 334 (AAC) the Upper Tribunal stated:

“12.

It might be objected that that is to require a tribunal to go through an empty technicality, in that the tribunal here plainly did consider that it was able to decide the claimant's appeal without a hearing and that it was fair and just to do so, because that is what it did. It could then be said that it would not have helped the claimant's understanding of matters in any way if the tribunal had simply recited in its statement of reasons what could be a meaningless mantra about rule 27(1) and about the overriding objective in rule 2. However, that would in my judgment be to overlook the force of the requirement in rule 27(1) that there is to be an oral hearing in all cases where the proceedings are disposed of unless both of conditions (a) and (b) are satisfied. It is not good enough for a tribunal in the statement of reasons simply to record that the claimant has opted to have his appeal dealt with without a hearing. It is necessary for the tribunal to acknowledge explicitly that it has considered both of the necessary conditions for excluding the duty under rule 27(1) to have a hearing and to give some reasons (which may, in appropriate circumstances, be very shortly expressed) for its conclusion.”

I therefore accept the Respondent’s concession that this was a material error of law.

Daily Living Activity 3c (‘Needs supervision, prompting or assistance to be able to manage therapy that takes no more than 3.5 hours a week’) was at issue. The FTT did not accept that the Appellant needed help (SOR para 24 – “We concluded that the Appellant can manage medication or therapy or monitor a health condition unaided”).

The submissions in support of the appeal to the FTT argued that “He needs help with hosiery. The appeal argues that it is easier to get help with his hosiery and less of a struggle. He argues that it will not take as long to complete the activity if he has assistance.” The use of compression stockings, prescribed by a health professional, was treated by the FTT as a ‘therapy’ consistently with CF v SSWP [2024] UKUT 244 (AAC) at paragraph 29 – 31.

The Respondent’s submissions to the Upper Tribunal rehearse the FTT’s conclusions, the evidence before the FTT, and then, agreeing with UT Judge Butler, continue:

“4.10

…. Therefore, given that the claimant has stated that he requires assistance with putting on his compression stocking from his parents on most days since the worsening of his condition, and the length of time required to put them was due to the pain upon touching his skin, it was incumbent upon the FtT to at the very least explain what they made of this evidence and consider how often the claimant’s leg was problematic, and what the effects of it are.

4.11

In view of this, it is unclear how the FtT reached the conclusion that the claimant is capable of putting on his compression stocking without the assistance of someone else within a reasonable time and therefore whether he is able to do so within the requirements of Regulation 4(2A) of The Social Security (Personal Independence Payment) Regulations 2013. As such, I respectfully submit that the FtT have provided inadequate reasons to explain their decision and further findings of facts are required in relation to daily living activity 3.”

I accept these submissions, given that although the Tribunal did make a number of detailed findings on the issue of the stockings, they are difficult to follow in their entirety. In particular, the finding that that “the difficulties were impacted by the sizing of his stockings, and that this element of difficulty was resolved before the end of the required period” is not easy to follow as the FTT appears to have found that the stockings were too large (rather than too small, see para 25.3 SOR where the evidence that the stockings “roll down” and had to be pulled up repeatedly was set out), so as UT Judge Butler stated: “… it is not immediately clear why the difficulties you had related to the size of the stocking rather than your stated sensitivity and pain when it touched your skin”. The issue of sensitivity was dealt with at paragraph 25.4.2 SOR, where the FTT stated:

“By its very nature putting on compression stockings is not a quick process and takes longer than, for example, putting on a normal pair of socks. Although the Tribunal accepted that intervention from another person may speed up the process, this would not alleviate the need to go slowly to avoid pain as described by the Appellant. There was no evidence to indicate that the Appellant would take more than twice as long when doing this himself.”

The FTT was necessarily dealing with the written evidence only (see Ground 1), which may have been limited; but it seems to me that it was nevertheless incumbent on the FTT to consider and address more explicitly the Appellant and his mother’s evidence that when the Appellant’s leg was “bad” he called for assistance, and – in that context - the potential role of support, assistance and encouragement (‘prompting’) in overcoming the effects of sensitivity and pain, and in therefore reducing the time needed to put on the stockings. In those circumstances I am prepared to accept that the findings of fact and reasoning were inadequate, as both parties submit.

What will happen at the rehearing

For the benefit of the Appellant, this is the effect of the decision in KK to which I have referred in my directions.

The rehearing will not be limited to the grounds on which I have set aside the tribunal’s decision. The tribunal will consider all aspects of the case, both fact and law, entirely afresh.

Nor will the tribunal be limited to the evidence and submissions that were before the tribunal at the previous hearing. It will decide the case on the basis of the relevant evidence and submissions made at the rehearing.

The tribunal must come to its own conclusions on the issues of both fact and law that it considers. Nothing in my decision or in my reasons for it is an indication of the likely outcome of the rehearing. Nor will the tribunal be bound by any conclusions of fact or law reached by the tribunal in the decision that I have set aside.

The Appellant should consider whether or not he is able to attend a resumed hearing (whether in person or remotely), as it is possible that further evidence could be relevant to the exploration of the issues in dispute.