IN THE UPPER TRIBUNAL Appeal No. UA-2024-001796-PIP
ADMINISTRATIVE APPEALS CHAMBER
On appeal from the First-tier Tribunal (Social Entitlement Chamber)
Between:
LB
Appellant
– v –
THE SECRETARY OF STATE FOR WORK AND PENSIONS
Respondent
Before: Upper Tribunal Judge Nicholas Paines KC
Decision date: 26 June 2025
Decided on consideration of the papers
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal made on 2 August 2024 under number SC309/23/01184 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.
DIRECTIONS
This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.
The members of the First-tier Tribunal who reconsider the case should not include any of those who were previously involved in considering the claimant’s appeal.
The legislation requires that the tribunal can only base its decision on circumstances as they were at the date of the original decision by the Secretary of State.
The parties should send any further evidence upon which they wish to rely to the HMCTS regional tribunal office within one month of the issue of this decision. Any further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State.
The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal and may reach the same or a different outcome depending on the findings of fact it makes.
These Directions may be supplemented by later directions by a Tribunal Legal Officer, Tribunal Registrar or First-tier Tribunal Judge.
REASONS FOR DECISION
On 17 January 2025 Judge West gave the claimant permission to appeal on the grounds set out in his grounds of appeal. The Secretary of State supports the appeal. Both parties have agreed to a decision without reasons, so I am only giving brief reasons for allowing the appeal.
The claimant claimed Personal Independence Payment (PIP) on 2 May 2023. On the claim form he gave his medical condition as scoliosis which had started when he was a teenager. The claim form referred to difficulties with washing and bathing and dressing or undressing.
On 2 August 2022 the claimant had a telephone consultation with a healthcare professional, who assessed him as scoring no points in connection with daily living activities or mobility. The claim was dismissed on 2 July 2023; the decision maker agreed with the healthcare professional’s assessment. The decision was reconsidered but not revised on 28 August 2023.
The claimant appealed to the First-tier Tribunal with the assistance of a representative from his County Council’s Welfare Rights Service who filed a written submission. In it she argued that the claimant met daily living descriptors 4(c) or (f) in respect of washing and bathing, 5(b) in respect of toilet needs, 6(e) in respect of dressing and undressing and 9(b) in respect of engaging with other people. The claimant gave evidence.
It is clear from the statement of reasons that the tribunal approached the case in a thorough and conscientious manner. They found that the claimant met descriptors 4(e), 5(b) and 9(b), but no descriptor in respect of dressing and undressing. In their statement of reasons they said
… at the hearing [the claimant] described the difficulties he had with dressing which caused pain to radiate down his arm and into his fingers. He described how he dressed his upper body putting his head down without raising his arms to put his T shirt on. Whilst his mother had helped him with his T shirt on the day of the hearing, this was not the case on the majority of days when [the claimant] told the tribunal he dressed himself. The tribunal accepted that his physical limitations meant it would take [the claimant] longer to dress and undress but the tribunal found it was unlikely to would take [him] twice as long as a person without a physical condition
They went on to find that there was no evidence of difficulties dressing or undressing the claimant’s lower body (there is no challenge to that) and to conclude that he could dress and undress unaided.
In the grounds of appeal, the claimants representative criticises their reasoning in two main ways: first, the tribunal did not consider difficulties in putting on or taking off the range of clothing that it would be appropriate for the claimant to wear, focusing only on the T shirt that he had put on for the hearing (which took place in August). Secondly, the tribunal did not consider in this connection the pain that the claimant said that he experienced from particular arm movements.
The Secretary of State largely agrees. I agree also. It is implicit in the notion of dressing that it involves putting on a reasonable range of clothing that is appropriate in different circumstances, including for example warm clothing in cold seasons. It does seem from the paragraph that I have quoted that the tribunal focused on a short-sleeved T shirt. It is apparent that the tribunal found that the claimant could put on a T shirt without undue pain but they do not seem to have considered, for example, how the claimant might fare when working his arms into a long-sleeved garment.
It is not appropriate for me to remake the decision, which is best done with the expertise of a First-tier Tribunal panel. I therefore remit the case to be decided by a freshly constituted tribunal.
Nicholas Paines
Judge of the Upper Tribunal
Authorised for issue on 26 June 2025