RN v The Secretary of State for Work and Pensions

These directions may be supplemented or changed by a District Tribunal Judge (DTJ) giving listing and case management directions.

The case will be listed as an oral hearing in front of a freshly constituted tribunal. The appellant is advised to attend.

The new panel will make its own findings and decision on all relevant descriptors.

In this appeal Ms Morton acts for the appellant, and Miss Howard for the Secretary of State, and I thank both representatives for their assistance with this appeal. I am grateful in particular to Miss Howard for the background set out in this section, from which this introduction is substantially taken.

My references to legislation are, unless otherwise stated, to the Social Security (Personal Independence Payment) Regulations 2013.

This decision concerns the PIP Personal Independence Payment (PIP) claim that was made by the appellant on 18/5/2023. I mention this at the outset to distinguish it from a further claim that he has made since being refused an award. The second claim was made on 22/4/2025. If an award is made in relation to the first claim, that award must have an end date of the day before the second claim, that is, 21/4/2025.

The first claim was followed by the appellant completing a Questionnaire on 11/7/2023, and undergoing a telephone assessment on 26/9/2023. On 16/10/2023 the decision maker adopted the recommendations of the assessor. These were to award points, but insufficient for an award of either component of PIP. He was awarded 6 points for the Daily Living Component under activities and descriptors 1b;4b;5b, each carrying two points, and four points for Mobility under 12b. He requested a Mandatory Reconsideration of the above decision and on reviewing the available evidence, the Decision Maker ( from now, DM) decided that the decision remained unchanged. The claimant lodged an appeal against the decision to the First-tier Tribunal (FtT).

The appeal was before the tribunal on 3/3/2025. It heard evidence from the appellant. The decision of the Department was upheld as to the points awarded, and the appeal was refused.

The appellant sought permission to appeal to the Upper Tribunal, having had an initial application to the FtT refused.

The matter came before Upper Tribunal Judge Citron. He granted permission to appeal on the basis of the papers.

Miss Howard on behalf of the Secretary of State has now filed a submission supporting the appeal for the reasons Judge Citron set out. She adds some detail to the points Judge Citron makes. She does not require me to give reasons for my decision if I accept her arguments.

Ms Morton has not disagreed with anything that Miss Howard said. She helpfully explained that the appellant made a new PIP claim, a point that I dealt with earlier because of its importance for the next tribunal if its decision is to make an award.

I agree with the submissions of Miss Howard, and subject to my making some further general points, they provide the reasons for my decision that the FtT erred in law in its approach to fact finding, and failed to explain its findings sufficiently.

An important purpose of a Statement of Reasons is to explain to the appellant why their appeal failed, and, perhaps in particular, if the tribunal did not accept the account put forward as to the problems that the appellant had, why that view was taken. Brevity and clarity play a part in ensuring that the Statement can be understood by someone who isn’t a lawyer.

In her submission Miss Howard sets out a portion of the Statement of Reasons, paragraphs 29-31. She has, very fairly, chosen a portion that it is representative of the Statement, as a whole. and points out that parts of it are merely a recitation of the evidence; she is right, and that approach usually causes a problem in understanding the reasoning. Unless specific parts of the evidence are set out and analysed as to their effect on the aspects of the tribunal decision to which they relate, such re-iteration merely adds to the length of the Statement with little or no positive benefit.

What is needed is analysis of the evidence so that the tribunal statement sets out, shortly, what facts were found, and the basis of the findings. My colleague Upper Tribunal Judge Edward Jacobs, in his book Tribunals: Practice and Procedure, describes a fact as being what you get when you apply a process of reasoning to the evidence. If this analysis is done, the result can be explained with ease and simplicity. This statement contains large chunks of the note of evidence followed by generic material that could apply in many cases, for example references to the reliance of the tribunal on its own expertise as well as the medical evidence and the expertise of the Departmental Examiner, but it is hard to deduce why, when the appellant said that his partner or children helped him to get dressed, what it was about that evidence that it did not accept. This is the moreso when parts of the evidence are recited, for example, again regarding dressing, it says “he struggles” and refers to the activity as being very painful; there is no indication as to what the FtT made of his “struggles”, although later it is said, in a general way, that the level of difficulty claimed is not supported by the medical evidence.

Care must also be taken in elevating matters such as oral evidence that is more detailed than was the department’s questionnaire, into culpable inconsistencies; people may be loquacious when answering questions orally, having found filling out a form difficult. Sometimes the question itself may prompt answers that give more detail. There is also a time lapse between the completion of the questionnaire, the medical examination and the Departmental decision ( the decision under appeal to the FtT). If small differences in an appellant’s responses are to form the basis of credibility findings, there must be a targeted explanation that addresses those points.

I am directing that the case be listed as an oral hearing; I appreciate that the appellant has already give his account to the tribunal, but it will be in his interests to attend and explain to the fresh tribunal what his problems were with the activities of daily living, and in getting around, during the period leading up to the original decision on his PIP claim made on 16/10/2023.

He may, through his representative or personally, make any further points that he wishes to on all issues at the rehearing, or on paper prior to that.

For completeness, I also draw to the attention of the new tribunal to the approach set out by Upper Tribunal Judge Hemingway in TR-v-SSWP (PIP) [2015] UKUT 0626 (AAC) which establishes that if a claimant is unable to perform an activity for part of a day that day counts towards that period provided that the inability to perform it affects them on that day to more than a trivial extent: in particular see [32-34].

In view of the references in the quoted evidence about pain, the tribunal will need to find as a fact whether, or to what extent, the appellant suffers pain in the various activities under consideration. In PS-v-SSWP (PIP) 2016 UKUT 326 (AAC)Upper Tribunal Judge Markus KC found that if an activity is only able to be accomplished with pain, it is not of an acceptable standard within regulation 4(2A).

Finally, I warn theappellant that the fact this appeal has succeeded here on an issue of law is not an indication that the rehearing will automatically be successful, because it is the new tribunal that will consider the evidence and determine the outcome.