SR v Secretary of State for Work and Pensions

The appellant appeals against the First-tier Tribunal’s decision of 14 August 2024 refusing the appellant’s appeal against the decision of the Secretary of State of 14 July 2023 that the appellant was not entitled to Personal Independence Payment (PIP) under Part 4 of the Welfare Reform Act 2012 (WRA 2012) and The Social Security (Personal Independence Payment) Regulations 2013 (SI 2013/377) (the PIP Regulations).

A majority of the First-tier Tribunal decided that she only scored 2 points on the activities of daily living (activity 9, for needing prompting engaging with other people face to face) and 0 points on the mobility activities. The First-tier Tribunal accordingly confirmed the Secretary of State’s decision that she was not entitled to an award of PIP. One member of the panel would, however, have awarded her points against descriptors 1d, 4c and 6c so that she would on that basis have been entitled to an award of the standard rate of the daily living component.

The First-tier Tribunal’s Statement of Reasons (SoR) was issued on 7 October 2024 and permission to appeal was refused by the First-tier Tribunal in a decision issued on 29 November 2024. The appellant filed the notice of appeal to the Upper Tribunal on 18 December 2024 (in time) and I granted permission to appeal in a notice sent to the parties on 23 January 2025.

The Secretary of State in response to the appeal agreed that the First-tier Tribunal had erred in law and invited me to set the decision aside and remit the case to the First-tier Tribunal. The appellant, however, urged me to remake the decision, awarding her PIP at the enhanced rate by awarding points for daily living activities 3b and 10b in addition to the points that the minority of the First-tier Tribunal would have awarded her. On further invitation by me, the Secretary of State consented to my remaking the appeal on the basis of the decision of the minority of the First-tier Tribunal. The only matters in dispute therefore were whether I should also award points for activities 3b and 10b.

Both parties were content for me to make a decision on the papers and I considered I was fairly able to determine the appeal on the papers given the nature of the remaining issues in dispute.

The Upper Tribunal’s jurisdiction under s 11 of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) is limited to considering whether there are any points of law arising from a decision made by the First-tier Tribunal.

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 case on its merits.

These principles are set out in many cases, including R (Iran) v SSHD [2005] EWCA Civ 982 at [9]-[11] and R (Wasif) v Secretary of State for the Home Department [2016] EWCA Civ 82; [2016] 1 WLR 2793 at [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] (a case dealing with the employment context, but equally applicable here). 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 First-tier Tribunal is prohibited from taking into account “any circumstances not obtaining at the time when the decision appealed against was made” (section 12(8)(b) of the Social Security Act 1998) and evidence post-dating the decision will only be taken into account if it casts light on the circumstances as they stood at the time: cf SW v SSWP [2012] UKUT 76 (AAC).

I observed when granting permission to appeal that the appellant in her grounds of appeal takes issue with much of the decision, but it seemed to me that at the heart of the appeal was an arguable error of law in the majority’s decision that can be stated relatively shortly as follows.

The difference between the majority and the minority view in this case turned in essence on whether the reason that the appellant was not carrying out daily living activities 1, 4, 6, and 9 on the majority of days was because of her disability or because of her ‘motivation’. At the permission stage, I considered it arguable that the majority had made a perverse or unsustainable distinction between those two options. In the light of the parties’ further submissions, I am now satisfied that the majority of the First-tier Tribunal did err in law in this respect. There are a number of aspects to this.

At paragraph 9 the Tribunal notes that colitis can be associated with fatigue, although “Typically, an individual without co-morbidities would self-care”. The Tribunal thus implicitly acknowledges here that a person with co-morbidities such as the appellant may not self-care.

At paragraph 12, the Tribunal states that colitis and bowel disease did not directly give rise to disabling symptoms preventing her from undertaking the PIP daily living activities.

At paragraph 13, the Tribunal records that it does not understand the appellant to be attributing significant disability to her fatigue and tiredness. However, as the Secretary of State points out in responding to the appeal, that is simply wrong as the appellant’s evidence and argument has consistently been that she is disabled by fatigue. Indeed, her notice of appeal states in terms in relation to all the activities that she claimed “The difficulties I have are due to fatigue, low motivation and anxiety”.

Further, although at paragraph 14 the Tribunal states that “Colitis is a distressing and limiting condition which was almost certainly a significant factor in [the claimant’s] mental illness”, but from this point on the Tribunal appears to cease to take account of her colitis when assessing the appellant’s case and focuses on whether she has any cognitive impairment in relation to any of the activities. However, this step in the reasoning is in my judgment perverse given the acknowledged link between the colitis and her mental health, the appellant’s own case and evidence, the inherent difficulties in compartmentalising the effects on a person of their mental and physical disabilities in this way, and the Tribunal’s own implicit acceptance that a person with colitis and co-morbidities may not self-care.

At paragraph 15 the Tribunal finds that it is not cognitive impairment that is preventing the appellant from carrying out these activities, but her motivation. At paragraph 24, the majority of the Tribunal concludes that her lack of motivation is not a disability, but is attributable to her living alone and having a demanding employment role that did not require her to get washed and dressed. However, at paragraphs 25-26 the Tribunal explains that the dissenting member would have found the lack of motivation to be attributable to her mental illness.

Having regard to the evidence in the bundle, and the appellant’s grounds of appeal, it seems to me to be that the majority of the Tribunal erred in law in failing to take into account the effects of the appellant’s colitis on her levels of motivation, in combination with her mental illness. The majority of the Tribunal perversely sought to separate the effects of her mental and physical disabilities when considering the cause of her lack of motivation.

I further consider that the Tribunal has erred in law by reasoning from the fact that the claimant is motivated to work that her lack of motivation to do the daily living activities is attributable in part to her ‘choice’ of working rather than carrying out the daily living activities and not to her disabilities. As I observed in AE v SSWP (PIP) [2024] UKUT 381 (AAC) (see especially [15]-[18]), unless it is being suggested that it is unreasonable for the appellant to be working as she is then her ability to carry out the other activities of daily living on the majority of days has to be assessed taking into account the reality that she is on four days of the week undertaking the reasonable activity of full-time work from home. If, having undertaken that reasonable activity, she is then unable as a result of a combination of her physical and mental disabilities to undertake the activities of daily living on the majority of days safely, repeatedly, to an acceptable standard and within a reasonable time, then the Tribunal should have found she satisfies the descriptors.

In this case the Tribunal at [19] appears to approach its task on the basis that it has to assess the appellant’s ability to do the daily living activities on the days that she is not working. That is not the right approach.

For these reasons, I am satisfied that the First-tier Tribunal erred in law and I set the decision aside.

The Secretary of State is content for me to remake the decision on the basis of the determination of the minority in this case and I consider it appropriate to do so. I agree with the minority member of the First-tier Tribunal that, given the underlying severity of the appellant’s mental illness, coupled with the mental and physical effects of her colitis, the appellant could not cook, wash or dress on a majority of days without prompting, and that the reason for her tiredness and lack of motivation in relation to these activities was her disability.

In reaching that conclusion, I proceed on the basis that it is reasonable for the appellant to work and that the evidence was clear, even on the facts found by majority of the First-tier Tribunal, that on the appellant’s working days (which represented a majority of the week) she was almost always too tired to carry out those activities of daily living without prompting. I disagree with the distinction made by the majority of the First-tier Tribunal between the appellant’s lack of motivation and her tiredness. On the facts of this case, those elements were not properly separable.

In her submissions to the Upper Tribunal, the appellant also claimed points for prompting for managing medication (activity 3). I can see from the First-tier Tribunal documentation, that this was nominally in issue on her appeal. However, in her notice of appeal she actually described in some detail the management of her medication without indicating that she needed support for it (p 4). In the assessment (pp 17 and 19) she reported no difficulties, likewise in her claim for PIP (p 11). The First-tier Tribunal appears to have proceeded on the basis that this activity was not in dispute. In those circumstances, I do not award any points on activity 3 because the evidence at the time of the Secretary of State’s decision (14 July 2023) was that the appellant was able, unaided, to manage her medication safely, to an acceptable standard, repeatedly and timeously.

The appellant also claimed points for making budgeting decisions (activity 10). The Secretary of State does not strongly resist an award of points in relation to that activity, but observes that it would make no difference to the outcome for the appellant to award points for prompting in relation to activity 10. In any event, I agree with the decision of the whole First-tier Tribunal in this case that at the time of the Secretary of State’s decision (14 July 2023) the appellant was able to make budgeting decisions safely, to an acceptable standard, repeatedly and within a reasonable time. The appellant has a high level of intelligence and does in fact manage her money successfully on a day-to-day basis. The fact that she finds it difficult to deal with problems or something going wrong as she put in her claim for PIP (p 13) does not mean that she is not able to make “complex budgeting decisions” within the definition of that phrase in paragraph 1 of the Schedule to the PIP Regulations, i.e. means decisions involving: (a) calculating household and personal budgets; (b) managing and paying bills; and (c) planning future purchases.

For these reasons, I find that the decision of the First-tier Tribunal involved the making of errors of law. I set it aside and I remake the decision on the basis that the appellant is awarded points for prompting for activities 1d, 4c, 6c, and 9b, thus scoring 8 points and entitling her to the daily living component of PIP at the standard rate from 25 May 2023 to 9 September 2024. This does not affect her current award of PIP, which I understand is the enhanced rate of the daily living component and the standard rate of the mobility component from 10 September 2024 to 30 March 2027.