Appeal No. UA-2024-001566-PIP
Between:
RM
Appellant
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Buckley
Decided on consideration of the papers
On appeal from:
Tribunal: First-tier Tribunal (Social Entitlement Chamber)
Tribunal Case No: SC242/22/002596
Digital Case No.: 1651-5751-8065-4502
Tribunal Venue: Fox Court, London
Decision Date: 15 September 2023
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) and b(i) 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 the following directions.
DIRECTIONS
This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.
The First-tier Tribunal hearing the remitted appeal shall not involve any members of the panel whose decision the Upper Tribunal has set aside.
If any party has any further evidence to put before the First-tier Tribunal this should be sent to the regional office of Her Majesty’s Courts and Tribunals Service within one month of the date on which this decision is issued. Any such further evidence must relate to the circumstances as they were at the date of the decision of the Secretary of State under appeal.
The panel hearing the remitted appeal is not bound in any way by the decision of the previous First-tier Tribunal. Depending on the findings of fact it makes the new panel may reach the same or a different outcome from the previous panel.
Copies of this decision and the submissions of the Secretary of State in the appeal to the Upper Tribunal shall be added to the bundle to be placed before the panel of the First-tier Tribunal hearing the remitted appeal.
These Directions may be supplemented by later directions by a Tribunal Caseworker, Tribunal Registrar or Judge in the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
Introduction
This appeal relates to a decision of the First-tier Tribunal dated 15 September 2023. In that decision the Tribunal confirmed the Secretary of State’s decision to award 8 points for the daily living component of personal independence payment (PIP) and 4 points for the mobility component.
Factual background
The Appellant suffers from anxiety, depression, musculoskeletal problems causing pain, breast pain and a number of other issues.
The Appellant made a claim for PIP on 27 July 2021. She submitted a PIP2 form on 8 September 2021. The Appellant had a telephone consultation with a Health Care Professional (HCP) on 13 December 2021.
The HCP recorded that her current medication included citalopram (40mg), Metronidazole (antibiotic), Zopiclone (7mg) (sleep), Co-codamol (30/500mg x 8 per day) (analgesia), Naproxen (250mg x 2) (analgesia), Ameprazole (20mg) (stomach protection) and Nytol (sleep).
A decision maker determined on 4 January 2022 that the Appellant should be awarded no points for the daily living activities and 4 points for mobility descriptor 1b (moving around). The Appellant was not entitled to either component of PIP.
On mandatory reconsideration the Appellant was awarded 2 points for preparing food, 2 points for washing and bathing, 2 points for managing toilet needs and 2 points for dressing and undressing. The Appellant was awarded 4 points for moving around. The Appellant was entitled to an award of PIP for the daily living component at the standard rate. She was not entitled to any award for the mobility component.
The Appellant appealed to the First-tier Tribunal.
The First-tier Tribunal in a decision dated 15 September 2023 confirmed the decision of the Secretary of State.
The Appellant applied for a statement of reasons, which was provided. The Appellant applied for permission to appeal to the Upper Tribunal.
The decision to give the Appellant permission to appeal
District Tribunal Judge Ly extended time to admit the application for permission to appeal.
District Tribunal Judge Ly refused permission to appealon 14 October 2024on the basis that First-tier Tribunal’s statement of reasons adequately deals with its findings of fact, the reasons for its decision and the law upon which it is based and that it was too late to rely on new evidence.
The Appellant renewed her application to the Upper Tribunal. Upper Tribunal Judge Citron gave permission to appeal on 27 November 2024 for the following reasons:
‘4. In my view the FTT decision arguably erred in making insufficiently detailed findings of fact about the state of [the Appellant’s] mental health in the relevant period and/or in not adequately explaining its finding that [the Appellant’s] mental health problems during that period were not severe.
As to what the relevant period was, I note the following:
given that [the Appellant] first claimed PIP on 27 July 2021, the required period under regulation 7 Social Security (PIP) Regulations 2013 in this case was 27 April 2021 to 27 April 2022; but
under s12(8)(a) Social Security Act 1998, the FTT decision could not take into account any circumstances not obtaining as at 4 January 2022, the DWP decision date.
My reasoning is as follows:
at [35], in the first two sentences, the FTT decision made findings that (i) [the Appellant] had mental health problems in the relevant period, but (ii) the problem was not severe;
the third (and final) sentence of [35] – which appears to be explaining the finding in the first two sentences – refers to (i) the lack of evidence of depression until after the DWP decision date and (ii) the fact that [the Appellant] was not prescribed SSRI (antidepressant) medication until 9 months after the DWP decision date – and at the time, her medical records refer to “very low” mood, rather than to “depression”;
the immediately preceding paragraph of the FTT decision, [34], refers to a Universal Credit medical report form of 14 May 2022 (and so after the DWP decision date) and to its stating that [the Appellant’s] mental health “has deteriorated in the last 12 months due to social issues”. The FTT decision observed that this provided “some evidence that [the Appellant] had developing mental health problems during the period material to this appeal”;
I note the following from looking at the 14 May 2022 Universal Credit medical report form:
under the heading “Mental Health Problem” it noted (amongst other things) that [the Appellant] had been diagnosed with Anxiety and Depression; that the onset of her problems was “several years ago”; that her mental health had deteriorated in the last 12 months due to social issues; that she had symptoms of low mood, low motivation, anxiety, social anxiety, apathy, stress, agoraphobia, insomnia, negative thoughts, intrusive thoughts and poor concentration every day; that her symptoms were triggered by going out, being around people and day to day stress; and that she had weekly panic attacks, which she described as a racing heart and shortness of breath, triggered by going out, being around people and day to day life stress;
under the heading “Description of a Typical Day” it noted (amongst other things) that [the Appellant’s] cousin purchases the groceries for the home as due to her low mood [the Appellant] does not go out to the local shops or supermarkets;
under the heading “LCW and LCWRA Information” it noted (amongst other things) that “on examination of [the Appellant’s] mental state there was a poor rapport, she was tearful and she had severe difficulties coping with the assessment. Based on the available evidence a severe disability due to initiating and completing personal actions is likely”;
the 12 month period in which the FTT decision found (based on the Universal Credit medical report form) that [the Appellant’s] mental health was deteriorating ran from 14 May 2021 to 14 May 2022; by the end of that period of deterioration [the Appellant] arguably displayed symptoms relevant to mobility descriptor 1 (anxiety, social anxiety, panic attacks, agoraphobia, not going out to shops are amongst the phenomena mentioned in the medical report); the medical report form also indicated that [the Appellant] had longstanding mental health problems of some kind (i.e. they did not start at the beginning of the 12 month period); in the light of the foregoing, it was arguably important that the FTT decision make precise findings about how, and at what rate, [the Appellant’s] mental health deteriorated between 14 May 2021 and the DWP decision date – in particular, did the phenomena relevant to mobility descriptor 1 (mentioned above) manifest themselves in that period of time, and, if so, when, and with what severity?;
in the alternative, it was arguably inadequate, and an error of law, for the FTT decision to have found that [the Appellant’s] mental health problems in the relevant period were “not severe”; in particular, the references to lack of evidence of “depression” in [35] do not adequately explain what the FTT made of the evidence in the Universal Credit medical report form of the [Appellant’s] anxiety, social anxiety, panic attacks, and agoraphobia (which appear to be serious mental health problems other than depression per se) as at the time of the Universal Credit medical report form;
the arguable legal error was material because the FTT decision appeared to rely on its finding that [the Appellant’s] mental health problem was “not severe” in rejecting, at [66], [the Appellant’s] claim that she needed prompting to be able to undertake any journey to avoid overwhelming psychological distress (mobility descriptor 1b); it would also appear to be the reason the FTT decision did not go on to consider the higher-scoring mobility descriptors 1d, 1e and 1f, which depend, to some extent, on the likelihood of someone experiencing overwhelming psychological distress when following the routes of certain kinds of journeys.”
Submissions
The Secretary of State’s representative made thoughtful submissions on the appeal and indicated that the Secretary of State supported the appeal. She asked that the First-tier Tribunal decision be set aside and the matter remitted to a freshly constituted panel of the First-tier Tribunal for redetermination.
The Appellant made no substantive submissions in reply. The Appellant agreed with the decision being set-aside and remitted to the First-tier Tribunal.
Why there was no oral hearing
Neither party asked for an oral hearing. In exercising my discretion I took account of the fact that the Secretary of State supports the appeal and has provided detailed written submissions. I decided that I could fairly determine the appeal on the papers and that it was proportionate and in the interests of justice to do so.
Analysis
The parties have both consented to a decision without reasons, but I explain my decision briefly below.
For the reasons set out in the grant of permission and in the Secretary of State’s submissions, I find that the First-tier Tribunal erred in law in relation to its conclusions on mobility activity 1 in that:
it made insufficiently detailed findings of fact about the state of the Appellant’s mental health in the relevant period including, in particular, making precise findings on how, and at what rate, the Appellant’s mental health deteriorated between 14 May 2021 and the DWP decision date and whether the phenomena relevant to mobility descriptor 1 (mentioned above in the grant of permission) manifested themselves in that period of time, and, if so, when, and with what severity and
it did not adequately explain its finding that the Appellant’s mental health problems during that period were not severe, in that it did not adequately explain what the First-tier Tribunal made of the evidence in the Universal Credit medical report form of the Appellant’s anxiety, social anxiety, panic attacks, and agoraphobia.
I agree with the following submissions of the Secretary of State:
“13. … Although the UC85 report post-dated the date of decision under appeal by approximately 4 months, it is evident from that report that the claimant’s mental health had been declining over a 12-month period. That 12-month period was 14/05/2021 to 14/05/2022. It is my submission that it was incumbent on the First-tier Tribunal to make adequate findings regarding how, and at what rate, the claimant’s mental health had deteriorated between 14/05/2021 and the date of decision under appeal (04/01/2022), and how that decline in mental health affected her ability to go out. I also agree with the Upper Tribunal Judge that the First-tier Tribunal has not stated what it made of the UC85 when determining the severity of the claimant’s mental health, having regard to the fact that the report contained indications of agoraphobia and panic attacks which on the face of it appear to be serious mental health problems.”
Conclusion
I find that the First-tier Tribunal erred in law as set out above. I find that these errors were material in that they might have made a difference to the points awarded for the mobility component of PIP.
For those reasons the appeal is allowed and the decision is set-aside. I have considered the Appellant’s request to re-decide the appeal, but because further facts need to be found and because the First-tier Tribunal is best placed to find those facts, I am not able to do so and I remit the matter to be re-heard by a newly constituted First-tier Tribunal.
The Appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether her appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law on the basis of its findings of fact.
Sophie Buckley
Judge of the Upper Tribunal
Authorised by the Judge for issue on 16 May 2025
Anonymity: The appellant in this case is anonymised in accordance with the
practice of the Upper Tribunal approved in Adams v Secretary of State for Work
and Pensions and Green (CSM) [2017] UKUT 9 (AAC), [2017] AACR 28.