DK v The Secretary of State for Work and Pensions

On 02 August 2023, DK made a claim for personal independence payment (“PIP”). The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, invited DK to take part in a medical assessment by telephone on 10 November 2024. On 16 January 2025, DWP decided DK scored no points for either daily living activities or mobility activities. DWP therefore refused DK’s claim.

DK appealed to a First-tier Tribunal on 27 February 2024. DK’s appeal was determined on the papers in the appeal bundle on 16 August 2024 by a First-tier Tribunal (“FTT”). The FTT refused DK’s appeal and confirmed DWP’s decision.

On 17 March 2025, the Upper Tribunal received an application from DK, asking for permission to appeal against the FTT’s decision. In a decision dated 11 March 2025, I granted DK permission to appeal on the basis it was arguable the FTT had made one or more of the following errors of law.

Explaining why it decided DK’s appeal on the papers: The Upper Tribunal confirmed in DT v SSWP (UC) [2019] UKUT 268 (AAC) and in MM v SSWP (ESA) [2011] UKUT 334 (AAC) that a tribunal must acknowledge explicitly that it has considered both whether the parties have consented to a decision being made without a hearing and that it can fairly decide the appeal without holding one, and to explain why. The wording at paragraph 6 of the FTT’s Statement of Reasons indicated it considered the relevant procedural rules (rules 2 and 27 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008) but had not explained why it considered it fair and just to proceed without a hearing. The FTT also referred to DK wanting her hearing dealt with on the evidence in the bundle and to her providing some medical evidence. I could not find a record in the FTT’s online appeal system confirming DK wanted her appeal decided on the papers. The FTT appeared to have taken DK’s letter dated 05 July 2024 (Addition C of bundle) as this request, but it did not explicitly state DK wanted a paper determination.

DK’s letter invited HMCTS to tell her if any further information or documentation was required. It also stated that DK had included a letter from her GP detailing her current health condition and the support she required, a letter from DK’s daughter explaining the assistance she gave DK daily, and any relevant medical records and appointment confirmations regarding DK’s upcoming scan. While DK attached the medical evidence, she attached two copies of letters to the Home Office about someone else’s application for settled status. It appeared DK attached the wrong letters, instead of the letters described from her daughter and her GP. The FTT’s Statement of Reasons did not address the fact DK stated she was sending in additional evidence that it did not have before it, and why it was fair and just to decide DK’s appeal on the papers in those circumstances.

Addressing the evidence, including medical evidence, adequately about DK’s medical conditions and treatment: At paragraphs 15 and 16 of its Statement of Reasons, the FTT described DK having a hernia diagnosed in Bulgaria and worsening pain in June 2024. The FTT stated that it appeared to be a new issue that had occurred within the few days before DK attended her GP in June 2024. The FTT wrote that no mention was made of any lasting effects of DK’s gall bladder operation or the hernia and that it would have expected a good recovery from surgery within two months. However, DK’s consultant general surgeon wrote on 24 June 2024 that DK had a resection of the small bowel and extraction of the stone, and afterwards developed an incisional hernia, which was the cause of her abdominal pain (addition C, page 4). DK had herself described emergency gallstone surgery on 27 October 2032 due to an infection and her gall bladder bursting, causing a post-operative infection subsequently requiring antibiotics and drainage (mandatory reconsideration request 20 January 2024).

In the circumstances, it appears a consultant had linked the development of DK’s hernia to the operation in October 2023. Furthermore, DK’s description suggested her surgery may have been carried out on emergency basis and her recovery had included complications. The FTT had not explained what it made of this evidence and how it assessed it against its assessment that DK would be expected to recover from her surgery and gall bladder difficulties within 2 months.

Addressing the evidence and the required period to qualify for PIP: The FTT referred to DK having osteoarthritis, although it stated correctly, that she had not mentioned it in her PIP2 questionnaire. The FTT acknowledged DK told a healthcare professional for a work capability assessment on 28 February 2024 that she had been diagnosed with osteoarthritis in April 2023 and that it had got worse since her operation in October 2023. DK had also told the healthcare professional that she was taking co-codamol 30/500mg (maximum dose) in February 2024 (see page 99 of appeal bundle).

The FTT wrote that DK’s osteoarthritis was not causing her any functional restrictions until sometime after her operation in October 2023. It wrote that DK did not satisfy the required period for PIP based on that condition. However, the FTT did not address whether, given paragraphs 45 and 46 of the Upper Tribunal decision in GT v SSWP (PIP) [2023] UKUT 58 (AAC), DK might have satisfied the required period condition from a date later than the date of claim, and therefore merited an award of PIP from a later date than that. At paragraph 25 of the Statement of Reasons, the FTT focused its consideration on DK satisfying the required period of 02 May 2023 to May 2024 alone.

Ms Pettet is the Secretary of State’s representative in these proceedings. She has provided a helpful written submission dated 23 June 2025. Ms Pettet supports the appeal and invites the Upper Tribunal to set aside the FTT’s decision dated 16 August 2024 for containing material errors of law, for the reasons set out below.

Explaining why it decided DK’s appeal on the papers: Ms Pettet observes that the FTT referred to rules 2 and 27 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 at paragraph 6 of its Statement of Reasons. She submits, however, that the FTT failed to explain why it was fair and just to proceed with a paper hearing. Ms Pettet further submits that the FTT made an error of law in deciding to determine the appeal on the papers, without considering adjourning for further evidence or an oral hearing. Ms Pettet highlights that when DK wrote to the FTT on 05 July 2024, she said she was including certain evidence (letters from her daughter and her GP, about her difficulties) but did not include a letter from the GP and the letter from DK’s daughter is about something else (her own immigration status).

Ms Pettet submits that the FTT failed to address DK’s letter of 05 July 2024 and the evidence she provided. She argues that if it had done so, it would have been clear to the FTT that the evidence received was not correct and therefore it should have considered whether, applying rule 2, it was in the interests of justice to adjourn for an oral hearing or for the correct evidence to be obtained. Ms Pettet submits the FTT failed to apply the third stage of considering rule 27, set out in MH v Pembrokeshire County Council [2010] UKUT 28 (AAC). This requires that once a tribunal has considered the second stage (whether any party asked for a hearing), it must then decide whether to give a decision or to adjourn. Ms Pettet submits the FTT provided insufficient reasons in its Decision Notice and Statement of Reasons to show that it considered that third stage.

Addressing the evidence, including medical evidence, adequately about DK’s medical conditions and treatment: Ms Pettet submits that on reading paragraphs 15 and 16 of the Statement of Reasons, it appears the FTT drew inferences from evidence about what treatment DK might have received, what kind of recovery she might have had from her gallstone surgery (limited functional restrictions from the end of December 2023) and when DK’s hernia first started to cause her functional restrictions (June 2024).

Ms Pettet submits that the letter from DK’s surgeon dated 24 June 2024 has related DK’s hernia to the gall bladder surgery she underwent in October 2023. She submits that the FTT appears, however, to have treated DK’s hernia as a separate and new condition, after she went to see her GP on 12 June 2024. Paragraph 15 of the Statement of Reasons explained DK’s GP recorded her hernia had been diagnosed in Bulgaria. Paragraph 16 stated: “This appeared to the Tribunal to be a new issue that had occurred within the few days prior to her attendance at the GP in June 2024”. Ms Pettet submits the FTT misdirected itself on this issue (i.e., in terms of the evidence).

Ms Pettet also submits that it is unclear whether the FTT considered what DK had written in her mandatory reconsideration request letter dated 20 January 2024 (pages 90 to 91 of appeal bundle). This described emergency surgery, and long-lasting effects, including post operative infection, treated with antibiotics and drainage and ongoing symptoms. Ms Pettet also refers to what was written about DK in the UC85 medical report for universal credit dated 28 February 2024, which also recorded her emergency surgery and ongoing symptoms. This referred to DK experiencing generalised arthritis in addition to her ongoing abdominal problems.

Ms Pettet submits the FTT has recorded some of the findings but did not explain what it made of the evidence about DK’s functional restrictions noted in the UC85 report on pages 99, 100 to 101 and 104 to 105 of the appeal bundle. She submits the FTT has also not explained why it expected DK to recover within 2 months of her gall bladder surgery. Ms Pettet points out that the UC85 report was completed 4 months after DK’s gall bladder surgery and clearly reported her still recovering from that surgery with ongoing difficulties. Ms Pettet submits the FTT failed to use its inquisitorial role and further factual findings and reasons are required.

Addressing the evidence and the required period to qualify for PIP: Ms Pettet observes that while DK did not refer in her PIP2 questionnaire to having osteoarthritis, she recorded having it in both hands in her mandatory reconsideration request, and it was recorded by the healthcare professional in the UC85 report as having been diagnosed by DK’s GP in April 2023. Ms Pettet submits the FTT failed to engage with that evidence in its decision or Statement of Reasons.

Ms Pettet also submits the FTT had focused on whether DK satisfied the relevant period of 02 May 2023 to 01 May 2024, but it was unclear whether it had considered paragraphs 45 and 46 of GT v SWP (PIP) [2023] UKUT 58 (AAC), and whether DK might have satisfied the conditions for PIP from a later date than 02 May 2023, and if so, whether to make a stepped assessment.

On 02 July 2025, DK replied to Ms Pettet’s submissions, explaining she might be admitted to hospital in the next 30 days. DK wrote that she would like to attend a hearing but then wrote in the same document that she agreed to the Upper Tribunal giving a decision without reasons and did not want an oral hearing.

The Secretary of State’s representative did not ask for a hearing. It is unclear whether DK wanted a hearing of her appeal to the Upper Tribunal or wanted to attend a hearing (only) if the Upper Tribunal decided one was needed. I took both possible preferences into account. I decided an oral hearing is not required. The parties agree the FTT made material errors of law. I decided it was proportionate to determine the appeal on the papers.

At the permission stage, I only needed to be persuaded that it was arguable with a realistic (as opposed to fanciful) prospect of success that the FTT had made an error of law in a way that was material.

At this substantive stage, I need to be satisfied on the balance of probabilities that the FTT did make an error or errors of law that were material.

I am satisfied, on the balance of probabilities, that the FTT made material errors of law in relation to the appeal grounds addressed by Ms Pettet at paragraphs 11 to 18 above (and in more detail in her submissions dated 23 June 2025).

I have decided the FTT’s decision involved material errors of law. I have decided to use my discretion to set aside the FTT’s decision dated 16 August 2024. I do so, using the legal power in section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Section 12 of the 2007 Act requires me either to remit (send back) the case to the First-tier Tribunal to decide afresh, or to decide the case myself.

Neither party has asked me to remake the decision. In any event, further facts need to be found, including about the effects of DK’s medical conditions and recovery from surgery on her functional abilities. The First-tier Tribunal, with its medical and disability expertise, is best placed to evaluate all the evidence and to make appropriate findings of fact.

I therefore remit DK’s appeal to be reheard before a new First-tier Tribunal. It will make a fresh decision about whether she should be entitled to PIP.

Although I have set aside the FTT’s decision dated 16 August 2024, I am not making any findings, or expressing any view, about whether DK should be entitled to PIP. The next First-tier Tribunal will need to hear evidence, make its own findings of fact, and provide its reasoning for the decision it reaches.