IR (by her mother and Appointee SR) v The Secretary of State for Work and Pensions

SR is the mother and Appointee for IR. On 17 June 2021, SR, acting on IR’s behalf, made a claim for Disability Living Allowance (“DLA”). The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, dealt with IR’s claim. On 04 August 2021, DWP decided IR was entitled to the lowest rate of the care component and the lower rate of the mobility component of DLA, from 17 June 2021 to 25 April 2025. The present appeal relates to that decision. A First-tier Tribunal heard and decided IR’s appeal on 25 October 2023, but this decision was set aside for a procedural irregularity.

IR’s appeal was then heard and decided on 22 July 2024 by a different First-tier Tribunal (“FTT”). The FTT refused IR’s appeal and confirmed DWP’s decision. A salaried Tribunal Judge refused IR permission to appeal on 04 December 2024.

On 30 January 2025, the Upper Tribunal received an application from Mr Ullah on behalf of IR, asking for permission to appeal against the FTT’s decision. In a decision dated 16 March 2025, I granted permission to appeal on the basis it was arguable the FTT had made one or more of the following errors of law, which were argued by Mr Ullah:

Mrs Watts is the Secretary of State’s representative in these proceedings. She has provided a helpful written submission dated 15 May 2025. Mrs Watts supports the appeal and invites the Upper Tribunal to set aside the FTT’s decision dated 22 July 2024 for containing material errors of law, for the reasons set out below.

Whether the FTT made adequate findings of fact: Mrs Watts submits that the FTT has made an error of law in both its fact finding and duty to provide adequate reasons for its decision. Mrs Watts submits that the FTT has provided conclusions in paragraphs 7 and 8 of its Statement of Reasons but has not made adequate factual findings to support those conclusions.

Mrs Watts quotes paragraph 7(a) of the Statement of Reasons:

“Dealing first with the issue of night-time care needs the Appointee said that [IR] went to bed about 7 pm. and the Appointee herself chose to go to bed at 9 pm. The MQPM enquired as to whether [IR] would need any help overnight. The Appointee's initial response was that she would observe [IR] on a baby monitor. In the view of the Tribunalhaving a baby monitor did not amount to prolonged or repeated attention. The MQPM enquired whether there was anything else that the Appointee had to do for her daughter overnight. Her response was that [IR] might need the toilet or might have a "melt-down". The Appointee gave no indication of how often [IR] might need the toilet or how long it would take to settle her back in bed. There was no basis to conclude that the child's toilet needs amounted to "prolonged or repeated attention". Although the Appointee claimed that [IR] might wake up with a "melt-down" overnight she did not say how often or how long an incident might last.”

Mrs Watts submits the FTT made an error of law by failing to make adequate factual findings in that paragraph. She observes the FTT could have used the oral hearing to ask SR about the matters covered in paragraph 7(a), for example, how often IR needed to use the toilet at night, how long it took to settle her in bed afterwards, how often meltdowns occurred and how long they lasted. Mrs Watts submits that it appears from what the FTT wrote that rather than making fact-finding enquiries about these uncertainties, for example by asking SR at the hearing, the FTT simply concluded it could not award IR either the middle or higher rate care component on the basis that: “[IR] did not have a need for prolonged or repeated attention at night she could not qualify.”. Mrs Watts argues that it is unclear how the FTT reached this conclusion given the FTT acknowledged it was not clear how often IR’s nighttime needs arose.

Mrs Watts submits that this error of law is compounded by the fact there was evidence before the FTT appearing to show that IR did require prolonged or repeated attention at night. Mrs Watts provides examples of what SR wrote in the initial appeal grounds at page 10 of the FTT appeal bundle and what she wrote in the DLA1 form at page 49. Mrs Watts observes that the evidence that IR needed attention at night was also supported by the evidence from IR’s grandmother at page 69 of the FTT appeal bundle.

Mrs Watts submits that given the evidence in the bundle about IR’s nighttime care needs, the FTT needed to make further findings of fact about SR’s statement in the hearing that IR had meltdowns during the night and needed assistance with toileting. Mrs Watts argues that the FTT’s failure to make enquiries about how frequently these events occurred and for how long they lasted, constitutes an error of law, particularly given the evidence described at paragraph 8 above. Mrs Watts submits that without the FTT having made those further factual findings, it is difficult for SR to know how the FTT reached its conclusion that IR did not have significant nighttime needs and could not be entitled to the middle rate of the DLA care component.

Mrs Watts submits this error of law was material. Had the FTT made factual findings about what was happening for IR at night in terms of her needs, their frequency, and the duration of any care or attention provided during the night, it might have come to a different conclusion about the level of IR’s entitlement to the care component.

The FTT placed inappropriate reliance on some evidence in the appeal / misdirected itself about the relevance of that evidence: Mrs Watts observes that at paragraph 3 of its Statement of Reasons, the FTT explained it had taken into account the fact IR had always attended mainstream education and, according to the school, had not needed an EHCP. Mrs Watts submits it is relevant that the FTT highlighted these facts over any other evidence, when explaining the information it had taken into account. She highlights that the FTT then referred to this information in several parts of the Statement of Reasons. This culminated in the FTT stating at paragraph 9:

“a)

This Tribunal considered that it was significant that [IR] was able to attend a mainstream school, because if she had been as disabled as her mother claimed she would not have been able to do so. Moreover it had never been considered appropriate for there to be an Education Health Care Plan (EHCP), which would be expected if special measures were required. Moreover she would be moving up to a mainstream senior school.

(b)

The Tribunal had a letter from a SENCO at [claimant’s] school, which stated that she was working towards a national standard of education.”

Mrs Watts submits that the FTT’s reliance on the fact IR did not have an EHCP and was attending a mainstream school, constitutes an error of law. Firstly, as Mr Ullah had observed in the appeal grounds, the FTT appears to have misdirected itself in law. None of the relevant legislation stipulates that a person must have an EHCP or attend a specialist school to be eligible for DLA.

Secondly, Mrs Watts submits that while the FTT can infer information about IR’s capabilities from the fact she attended a mainstream school and did not have an EHCP, this is not consistent with other evidence in the bundle. Mrs Watts gives the example of the evidence at Addition I, page 1, indicating that the process of obtaining an EHCP is still ongoing.

Mrs Watts also refers to the fact that at Addition H, page 1 of the FTT appeal bundle, IR’s school provided a letter outlining her needs. The FTT placed emphasis on the fact IR’s school stated she was “working towards” the expected standard in maths. Mrs Watts submits the FTT appears to have misunderstood what this means; namely that IR is below the standard expected for children her age. Mrs Watts submits there is also evidence in that letter that emphasises IR’s difficulties in school (e.g., that she received additional support from a teaching assistant and found it hard to deal with day-to-day life). She submits the FTT has made an error of law by placing inappropriate reliance on some evidence (no EHCP and mainstream schooling) and failed to explain how it reconciled this with other evidence appearing to show IR required extensive support from school and the ECHP process was still ongoing.

The FTT failed to provide adequate reasons for its evaluation of the evidence: Mrs Watts observes that at paragraph 9(d) of the Statement of Reasons, the FTT stated it did not find SR’s claims to be correct and they were not supported by independent evidence. Mrs Watts submits that while the FTT is entitled to give weighting to whichever evidence it chooses, it must provide sufficient reasons to explain why it preferred one piece of conflicting evidence over another. Mrs Watts argues the FTT failed to explain how it concluded that more weight should be attached to the evidence from IR’s school and medical professionals than to SR’s evidence. Mrs Watts submits that furthermore, it appears incorrect to suggest that SR’s claims were not supported by the school, in terms of the letter at Addition H, page 1.

Mrs Watts also observes there is medical evidence that appears supportive of SR’s claims about IR’s needs; for example, the general observation by the paediatrician in IR’s autism assessment that girls may mask traits of autistic spectrum condition and this can be exhausting and lead to reduced coping, more likely in the home setting (page 65 of FTT appeal bundle). Mrs Watts submits this statement appears to support what SR described about IR’s difficulties coping with daily life.

Mrs Watts confirms that a renewal claim has since been made for IR’s DLA. The Secretary of State superseded the existing DLA award and has awarded IR the highest rate care component and the lower rate mobility components of DLA, for the period 20 March 2025 to 25 April 2030. The effect of this is that the appeal in respect of IR covers a “closed period”, meaning the FTT’s jurisdiction is limited to looking at her entitlement to DLA from 17 June 2021 to 19 March 2025 inclusive.

On behalf of IR and SR, Mr Ullah has replied, confirming he agrees with, and supports, Mrs Watt’s submissions. He has provided paperwork, including the renewal claim form, supporting documents and a copy of DWP’s decision dated 23 April 2025, confirming the decision DWP made about IR’s renewal claim.

Neither party asked for a hearing. I took the parties’ preferences into account. I decided an oral hearing is not required. The parties agree the FTT made material errors of law. 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 Mrs Watts at paragraphs 5 to 16 above, dealt with in more detail by her submission dated 15 May 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 22 July 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.

The Secretary of State has asked for this appeal to be remitted to a new First-tier Tribunal. Mr Ullah has explained his instructions are to ask the Upper Tribunal to remake the FTT’s decision. He submits that there is sufficient evidence in the papers for such a decision to be made.

I recognise that this appeal relates to a claim made in June 2021 and there have been two FTT decisions about IR’s appeal in respect of that claim. Remitting the appeal to a new Tribunal will inevitably involve a delay in resolving it. In my assessment, however, the errors of law made by the FTT highlight that more facts need to be found about IR’s functional limitations arising from her medical conditions, and what this might mean in terms of her needs for attention in connection with her bodily functions and / or supervision. Irrespective of how much evidence there may be in the bundle to explain these issues, 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 IR’s appeal to be reheard before a new First-tier Tribunal. It will make a fresh decision about the correct level of her entitlement to DLA for the closed period from 17 June 2021 to 19 March 2025.

Although I have set aside the FTT’s decision dated 22 July 2024, I am not making any findings, or expressing any view, about the correct amount of IR’s entitlement to DLA. 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.