PD v The Secretary of State for Work and Pensions

Save in one respect, I do not consider that the appellants’ reasons for appeal identify any arguable errors of law in the decision.

It is not arguable that the First-tier Tribunal has mischaracterised or failed to give appropriate weight to, or inadequately explained its decision in relation to the appellant’s mental health. There is no ‘dissonance’ between the First-tier Tribunal’s Decision Notice and the SoR. The use of medical cannabis is mentioned at [14] and the First-tier Tribunal has considered the effects of the appellant’s mental health difficulties on his functioning throughout the decision as appropriate.

Preparing food – The Tribunal has adequately identified the appellant’s claimed problems with memory (as well as his other claimed difficulties with cooking), and has explained adequately why it has concluded that, on the majority of days, the appellant is able to prepare and cook a simple meal for one person, to an acceptable standard and as often as necessary within a reasonable time period. The First-tier Tribunal has thus expressly addressed the requirements of regulation 4(2A) and 7 of the PIP Regulations and has reached conclusions that seem to me to have been open to it on the facts and not arguably perverse.

Face to face engagement– The Tribunal has properly recorded the appellant’s evidence about his difficulties. It did not overstate his evidence about the Spanish holiday, but took it into account alongside the other evidence. There was nothing wrong with the Tribunal taking the mere fact of the holiday with a friend into account in relation to this activity as his ability to engage with a friend in a public place such as a bar or restaurant is relevant to his ability to engage with other people face to face, applying authorities such as HA v SSWP (PIP) [2018] UKUT 56 (AAC). The Tribunal recognised he was more restricted in engaging with people outside his immediate family and friendship circle, but drew the conclusion that he was (or would be) able to do this when necessary, given his ability to engage with GP, taxis, and so on. Although a different Tribunal might have reached a different conclusion, this Tribunal’s decision was, it seems to me, not arguably in error of law.

Planning and following journeys – The Tribunal has accurately recorded the evidence from the HCP that the appellant said that he leaves the house on his own daily and uses public transport “on his own” when needed and that he was able to plan and follow a journey. The First-tier Tribunal recognised the greater difficulty that the appellant was likely to have with unfamiliar journeys, and that the holiday to Spain had been with a friend so did not provide evidence of ability to plan and follow journeys unaided. However, the First-tier Tribunal was entitled to reach a conclusion having considered all the evidence, including drawing inferences as to which the appellant would be able to do if necessary. The Tribunal is not required to record and deal with every part of the appellant’s oral and written evidence. The passage quoted in the grounds of appeal does not contradict what he said to the HCP in any event: it just says that he ‘tries to avoid’ public transport’, not that he never uses it. Again, while a different Tribunal might reach a different conclusion, the decision of this Tribunal was not arguably erroneous in law.

Moving around – It is in my judgment arguable that the First-tier Tribunal has erred in considering this activity. The definition of “reasonable time period” in regulation 4(4) is “no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity”. Although the First-tier Tribunal set out that provision in its SoR, it is arguable that it failed properly to apply it. The appellant’s evidence at the hearing, according to his representative, was to the effect that his walking speed is substantially longer than twice that of a ‘normal’ person. The First-tier Tribunal has failed to address this evidence in its decision, and has not explained how it concluded that the appellant could walk the necessary distances within a reasonable time period bearing in mind the proper definition of that term. This may be a material error because if he is going less than half the speed of a ‘normal’ person when covering 20-50m, he would score 8 points.

Conclusion

I therefore grant permission to appeal. Despite my observations in the grant of permission, I do not formally limit the grant of permission. If the Secretary of State supports the appeal on the moving around ground, there will be no need to address any of the other grounds. If the Secretary of State does not support the appeal on the moving around ground, the Secretary of State will need to address the other grounds.

Additionally, it is noteworthy that whilst the time taken to mobilise to places such as the shop, bus stop and local park, however, notwithstanding that the time taken is recorded, the distance the claimant is mobilising is not recorded. Given that the FtT’s acceptance of the claimed difficulties with mobilising, and that they have noted that he is slower, it is my submission that this is a further error in law and further fact finding is required to establish if the claimant is able to mobilise in accordance with Regulation 4(4).

Additionally, it appears that the FtT have made somewhat contradictory statements when reading the SOR in its entirety. By way of example, whilst noting at paragraph 31 of the SOR the FtT accept that journey’s are “more physically challenging due to fatigue and shortness of breath”, and accept at paragraph 34 that they; “that swelling of the legs, fatigue and shortness of breath does impact upon [claimant’s] ability…” but then go onto state: “but note the ability to move around does not have to be completely symptom free. …It was accepted that he wore compression stockings to assist with the swelling. However, the Tribunal concluded that [claimant] did not have sufficient physical restrictions that would prevent him from walking 200 metres or more safely, to an acceptable standard, repeatedly and within a reasonable time period.”. It is unclear how the claimant would do this in a reasonable time. The reasons given by the FtT when stating that the extent and resulting limitations were indicated in the points awarded without further findings of fact, do not, I submit, constitute adequate reasons for the findings of the FtT in this area.

Holly Stout

Judge of the Upper Tribunal