Appeal No. UA-2025-000639-PIP
Between:
NLH
Appellant
- v -
SECRETARY OF STATE FOR WORK AND PENSIONS
Respondent
Before: Upper Tribunal Judge Scolding KC
Decided on consideration of the papers
Representation:
Appellant: Ms. Khan, Welfare Rights Service, Leicester City Council
Respondent: Decision Making and Appeal Department, DWP, Leeds.
On appeal from:
Tribunal: SOCIAL ENTITLEMENT CHAMBER
Tribunal Case No: SC314/23/01084
Digital Case No.: 1688124163797827
Tribunal Venue: LEICESTER
Decision Date: 07 October 2024
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), (b)(i) and (3) 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 new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 7 October 2024 .
The appellant is reminded that the new First-tier Tribunal can only consider the appeal by reference to their health and other circumstances as they were at the date of the original decision by the Secretary of State under appeal of 6 April 2023 .
If the appellant has any further written evidence to put before the First-tier Tribunal relating to that period, including any further medical evidence, this should be sent to the relevant HMCTS regional tribunal office within one month of the issue of this decision.
The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.
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 is an appeal about whether the First Tier Tribunal (FTT) erred in law when considering whether the Appellant should receive the enhanced component of Personal Independence Payment (“PIP”).
Permission was granted by the First Tier Tribunal on two points:
The Tribunal erred in law in respect of their assessment of the Appellant’s ability to engage with other people face to face (daily living activity 9).
The Tribunal failed to make adequate findings about the Appellant’s ability to undertake familiar journeys on the majority of days (mobility Activity one – planning and following journeys).
Appeal to the First Tier Tribunal
The Appellant, had until 2023, been in receipt of the enhanced rate of both the daily living and mobility components rates for Personal Independence payments. Importantly for this appeal, he had been awarded points under daily living activity 9 and 12 points for mobility descriptor 1(f) about planning and following journeys.
This award was received in February 2022. The Appellant’s appointee provided evidence that the Appellant had with daily living and mobility activities and a HealthCare Professional undertook a telephone assessment in February 2023.
The SSWP following this review scored the Appellant with 8 points for daily living descriptors 1(d), 4(c), 6 (c), 10 (b) and 10 points for mobility descriptor 1(d) . This meant that the Appellant received the standard award for both the daily living and mobility descriptors for PIP. 12 points needs to be awarded for the enhanced rate of either component to be granted. This award was granted for the periods between April 2023 – February 2026, with the award notified in a letter dated 6 April 2023. A mandatory reconsideration was undertaken with no change in the award made.
The First-Tier Tribunal dismissed the appeal, and upheld the points awarded by the Secretary of State.
In respect of Activity 9, the FTT found that the claimant did not satisfy any of the point scoring descriptions. At paragraphs 33 – 35 of the statements of reasons, the FTT said this
“33. Considering all the evidence in the round, the Tribunal find that the Appellant can engage with other people unaided.
34. In making this decision the Tribunal find that the Appellant has to establish relationships in her role as a full-time court usher and in doing so she would have to interact with others in a contextually and socially appropriate manner and understand their body language. On the Appellant’s own evidence this can include 20 court users, their legal representatives, and colleagues at work. The Tribunal also note that the Appellant indicated that she has developed some friendships at work and has developed working relationships with her new team leader.
35.The Tribunal find that the Appellant can do this activity safely, to an acceptable standard, repeatedly and in a reasonable time period for more than 50% of the days in the required period. The Appellant scores no points for this activity.”
In respect of mobility Activity one, the FTT
found that the claimant satisfied mobility descriptor 1(d) – Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid and provided the following reasons for their decision at paragraphs 36-40 of the SOR:
Considering all the evidence in the round, the Tribunal find that the Appellant can plan and follow the route of a familiar journey unaided. The Tribunal agree with the Respondent that she scores 10 points under descriptor 11D.
In making this decision the Tribunal find that in her renewal PIP form the Appellant stated that she needs help planning new journeys and often needs to be driven or have someone with her if she is on public transport. The HCP also recorded that she reports anxiety around travelling on new journeys.
The Tribunal find that the Appellant is able to travel from work on a daily basis on a bus when she returns from work by herself. The Tribunal also find that one of the main reasons as to why she does not travel alone to work is her anxiety about attending late because she needs to be on time – the Tribunal note that she has already been awarded points for daily living activities relating to her washing and dressing. The Tribunal find that the Appellant would also be able to go to her GP surgery alone. When considering her work function and the improvement in her health, the Tribunal find that she would be able to manage familiar journeys.
The Tribunal find that the Appellant can do familiar journeys safely, to an acceptable standard, repeatedly and in a reasonable time period for more than 50% of the days in the required period.
The Appellant scores 10 points under descriptor 11D.”
Legal framework
The Upper Tribunal’s may only allow an appeal under section 12(1) of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) if it finds that the making of the decision by the First-tier Tribunal involved the making of an error on a point of law.
Errors of law include misunderstanding or misapplying the law, considering irrelevant factors or failing to consider relevant factors, procedural unfairness or failing to give adequate reasons for a decision.
An error of fact is not an error of law unless the First-tier Tribunal’s conclusion on the facts is perverse. That is a high threshold: it means that the conclusion must be irrational or wholly unsupported by the evidence. An appeal to the Upper Tribunal is not an opportunity to re-argue the facts of the case.
These principles are set out in many cases, including R (Iran) v SSHD [2005] EWCA Civ 982 at [9]-[13].
In scrutinising the judgment of a First-tier Tribunal, the Upper Tribunal is required to read the judgment fairly and as a whole, remembering that the First-tier Tribunal is not required to express every step of its reasoning or to refer to all the evidence, but only to set out sufficient reasons to enable the parties to see why they have lost or won and that no error of law has been made: cf DPP Law Ltd v Greenberg [2021] EWCA Civ 672 at [57]. That case also makes the point (at [58]) that where the First-tier Tribunal has correctly stated the law, the Upper Tribunal should be slow to conclude that it has misapplied it.
The grounds of appeal and the parties’ submissions
Daily Living Activity 9
The Appellant submits that the Tribunal failed to have regard to relevant evidence submitted by the Appellant in respect of her ability engage with others face to face, and have reached a conclusion based upon her ability to engage with others in one structured environment (her workplace) rather than overall. The Appellant points to various pieces of evidence which contradicts the conclusions reached by the First-Tier Tribunal. The Respondent agrees with these submissions and asks the Upper Tribunal to find that the FTT made an error of law.
In particular, the following information is not mentioned in the First-Tier Tribunal’s reasoning:
That the Appellant struggled with social situations. The Appellant has a diagnosis of autism and ADHD and has anxiety. She has had Cognitive Behavioural therapy in the past, and from January 2023 undertook weekly one to one appointments with a psychologist which were due to continue for 18 months.
Evidence presented by the Appellant and her appointee (her mother) and set out within the written submissions of their representative for the First-Tier Tribunal provided evidence of the following:
She did not socially engage with strangers:
Even within a small group of family and friends, she can struggle to mix with them.
She struggled to interact face to face in contextually and socially appropriate manner, understand body language and establish relationships, and struggles to understand body language, sarcasm, which makes her feel anxious.
She finds it difficult to cope with noisy places and people and dislikes crowded spaces.
She perseverates on her self care as she is anxious about cleanliness and when she feels sweaty or dirty she is uncomfortable and needs to lave work.
She often does not wish to socially engage.
She needs social support from her mother and partner when in social situations and provides social support with reassurance when out and prevent her having anxious thoughts.
The Appellant’s ability in the workplace is only managed because there is a very fixed script/fixed way with limited options and outcomes which she can manage after 5 years in her job. She struggled with meeting and interacting with people in social, work and non-social situations and requires support – in the form of someone with her or a lot of preparation including encouragement.
The Appellant was receiving weekly psychotherapy for her anxiety and a range of counselling at the date of the decision which was for or could be considered to be part of her social support to help her socially engaged.
Shortly after the decision of the SSWP to reduce her benefit, she took 4 months off with stress related anxiety (she had 106 days sickness absence between June 2023 – September 2023) demonstrating her anxiety and difficulties with managing social situations in the workplace.
The Healthcare professional assessment said that the Appellant and her mother reported that whilst she went out socially with her mother or partner, these are planned in advance so that there is not uncertainty about the routine to be followed e.g. where to park, what time to leave. Although she can go to the gym and to planned music events, these have to be planned by someone else.
Whilst the FTT did in their reasons say that they were looking at all the evidence, their reasoning fails to consider, comment or determine why this evidence was not reliable.
Further, the FTT’s conclusions rely upon an assessment of the Appellant’s work, in effect inferring that as she could work in a people facing role that demonstrated that she did not qualify under this descriptor. In KW v SSWP [2024] UKUT 410, Upper Tribunal Judge Fitzpatrick (at paragraphs 17 – 19 of KW) that the FTT should not make presumptions of someone’s abilities under Activity 9 based largely upon their employment (paragraph 17). Whilst there is nothing wrong with the FTT considering relevant and genuinely comparable activities into account, there should not be sole focus upon one activity – in this case employment- to the exclusion of other areas of the appellant’s life. Just as in KW, in this case the FTT’s reasoning and focus failed to consider the Appellant’s engagement with social support outside the work environment: her limitations within the work environment and failed to consider whether she could engage socially given the requirements of Regulation 4(2A) of the Social Security (PIP) Regulations 2013 which can do so safely, to an acceptable standard, repeatedly and within a reasonable time period.
In particular, the FTT has not grappled with the definition of engage socially as outlined by Upper Tribunal Judge Rowley in HA v SSWP [2018] UKUT 56 at [13] where the judge identified that the descriptor involved interacting with others in a contextually and socially appropriate manner, understanding body language and establishing relationships. This is not limited to those who are known to the person, but the ability to engage with people more generally.
I therefore agree with the submissions of the SSWP and the Appellant that they Tribunal has made an error of law in their approach to Activity 9 by (a) failing to take into account relevant evidence and (b) failing to consider this in a holistic manner, not focussing solely on employment but more generally.
Mobility Activity One
Both the Appellant and the Respondent ask the Upper Tribunal to find that there has been an error of law in the approach of the First-Tier Tribunal to this descriptor on the grounds that the Tribunal has failed to take account of the relevant evidence and/or has failed to make sufficient findings of facts and failed to give adequate reasons for their conclusions in the light of the evidence.
In particular, the conclusions reached by the FTT focus solely on the fact that she could travel from work daily alone and that she could attend her GP surgery alone. The Tribunal made no findings about the frequency of her journeys to the GP surgery or how this demonstrated her ability to undertake familiar journeys unaccompanied on over 50% of the days of the required period. I note that the FTT recognised that the Appellant did not travel to work on her own because of her anxiety about being late.
Both the Appellant and Respondent point me to various pieces of evidence within the FTT bundle which do not appear to have been considered by the FTT when reaching their decision. In particular, this included the following:
That trying to get the journey by bus in the morning has caused her so much anxiety that she must have someone take her in the car, despite the familiarity of the journey.
She wears headphones on the bus journey home to avoid people talking to her.
She finds familiar places which are crowded or noisy overwhelming: so she will often not complete familiar journeys with her family as she can become too overwhelmed to the point that she would prefer to wait in the care rather than get to the destination due to overwhelming anxiety.
She can become easily overwhelmed by chances even on a familiar journey and so does not tend to make many journeys on her own due to these problems.
Her employer has had to alter the work pattern usual for her job as a court usher because of her concerns about her ability to get to a number of different courts even if she was shown how to get there and so is only allocated one court – Leicester.
She becomes anxious even having on a familiar journey on the bus to work as the buses are crowded and she becomes anxious if the bus is late.
She finds longer familiar journeys more difficult which is why she does not travel to Loughborough in court as she would find it too overwhelming because of the length of the journey.
Whilst some of this evidence is set out in the Tribunal’s reasoning, much of it is not. In particular, the Tribunal appear to failed to identify and/or determine why the information and evidence above can be distinguished and/or why this does not mean that she can make familiar journeys unaided for more than 50% of the time (I say this as the facts seem to demonstrate that she does not go to work unaided because of her difficulties in dealing with public transport because of her anxiety – which is half her journey on a daily basis).
I agree with the submissions made by the SSWP which say:
“Although the FtT is entitled to give weighting to whatever evidence that they choose, where there is conflicting evidence, they must in the first instance explore and consider it in a holistic manner and provide sufficient reasons explaining why they preferred the evidence that they had. In this appeal the FtT does not appear to have done that. There appears to be a distinct lack of reference to the evidence provided by the appointee regarding the co-morbidity and functional impact that the claimant’s Aspergers syndrome, ADHD, and anxiety, has on her ability to undertake daily living activity 9 and mobility activity 1.Therefore, it could be said that had the FtT given appropriate consideration to all the evidence, including accurately identifying the effects of the claimant’s conditions, the FtT may have considered the claimant’s limitations. As such, I submit that the FtT have failed to give adequate reasons as to why evidence in parts was not accepted when deciding to either award or not award points. “
In view of the above, I respectfully submit that the inadequacy of reasons makes it difficult for the appointee to know whether the FtT applied the correct legal tests in assessing the evidence, making their findings of fact, and arriving at their decision.”
I agree that the Tribunal has failed to explain why it preferred one part of the evidence over the other, and also appears to have, as with Activity Descriptor 9, focussed solely on one aspect of the Appellant’s presentation, rather than examining matters as a whole.
Conclusion
I allow this appeal and set aside the decision as set out above.
Fiona Scolding KC
Judge of the Upper Tribunal
Authorised by the Judge for issue on 17 July 2026