Appeal No. UA-2025-000060-PIP
Between:
EJM
Appellant/claimant
- v -
SECRETARY OF STATE FOR WORK AND PENSIONS
Respondent
Before: Upper Tribunal Judge Hansen
Hearing date: N/A
Decided on consideration of the papers on 4 September 2025
Representation:
Appellant: WRAMAS Bristol City Council on behalf of Appellant
Respondent: Mrs Helen Hawley on behalf of the Secretary of State
ON APPEAL FROM
Tribunal: First tier Tribunal (Social Entitlement Chamber)
Tribunal venue: Swansea CJC
Tribunal Case No: 1709-8399-2241-6220
Tribunal decision date: 30 August 2024
Decision: The decision of the Upper Tribunal is to allow the appeal. The decision of the First Tier Tribunal made on the papers on 30 August 2024 under tribunal reference 1709-8399-2241-6220 was made in 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 in accordance with the following directions.
Directions
1. This case is remitted to the First Tier Tribunal for reconsideration at an oral hearing.
2. The members of the First Tier Tribunal who reconsider the case should not be the same as those who made the decision which has been set aside.
3. The parties should send to the relevant First Tier Tribunal office any further evidence upon which they wish to rely as soon as reasonably practicable.
4. The new panel of the First Tier Tribunal will consider all aspects of the case entirely afresh and it may reach the same or a different conclusion to the previous tribunal.
REASONS FOR DECISION
This is an appeal in a Personal Independence Payment (PIP) case.
The brief factual and procedural background fact is as follows. The claimant is now aged 29. She suffers from anxiety and depressive disorders and irritable bowel syndrome and was diagnosed with autism in 2021. On 31.1.22 she made a claim for PIP. She was assessed by a Health Care Professional (HCP), and following that assessment, the claim was refused by the Secretary of State on 21.3.23 who concluded that the claimant was not entitled to either component of PIP, the claimant scoring 0 points for daily living and 0 points for mobility. The threshold for an award of either component at the standard rate is 8 points. The claimant sought mandatory reconsideration but the decision was maintained on 23.8.23. The claimant therefore appealed to the First-tier Tribunal but the FTT dismissed her appeal and confirmed the Secretary of State’s decision. The First-tier Tribunal dealt with the case on the papers without a hearing. The claimant sought to set aside the decision but that application was refused by DTJ McCarroll on 2.10.24. She then sought permission to appeal from the FTT but that application was refused by the same judge on 19.12.24.
The application was therefore renewed to this tribunal and on 6.2.25 UTJ Sutherland-Williams granted permission to appeal with the following observations:
In short, the appellant argues that the First-tier Tribunal erred in law by:
failing to consider whether to adjourn the proceedings for a further oral hearing in light of the overriding objective to deal with the case ‘fairly and justly’;
failing in its inquisitorial duty to make sufficient findings of fact;
applying the law incorrectly, with reference to and in contradiction of Regulations 4, 7 and 14 of the Social Security (Personal Independence Payment) Regulations 2013.
I grant permission in respect of all 3 heads and their corresponding grounds. All are arguably material errors of law. It is not my role at this stage to decide this appeal. That will require representations on behalf of the Secretary of State, but in my provisional view, the above grounds have a realistic prospect of success.
It is arguable that the failure to consider whether it was fair to continue to proceed on the papers was a material error because the appeal turned on the credibility of the evidence and a relevant consideration therefore was whether continuing in the appellant’s absence would deny the appellant the opportunity of answering any concerns the First-tier Tribunal had (cf SM v SSWP (PIP) [2021] UKUT 140 at [13] per Judge Hemingway).
Further, and without expressing any definitive opinion, I am concerned that the tribunal has made inadequate findings of fact surrounding the appellant’s autism, and how it affects her on a day to day basis. I am also concerned that the tribunal has failed to make sufficient findings of fact in relation to the level of anxiety and depression the appellant experienced at the relevant time, and whether her domestic abuse was a factor, or how, if at all, this impacted the appellant in terms of the relevant tests. Similarly, I am concerned that the reliance on the GPs letter dated 13 February 2024 to support the finding that the appellant had stopped drinking (and did not mention IBS) came almost a year after the date of the decision (21 March 2023). I am equally concerned that the reference to receiving therapy by 9 November 2023 as not being ‘relevant to the date of the decision under appeal’, may create the impression that the causes that led to the need for therapy may have been overlooked by the tribunal and that those causes may have been relevant to the appellant’s circumstances at the time of the decision.
Finally, it appears to me to be arguable that simply saying that the tribunal has considered regulation 4 or 4A is not enough. The tribunal needs to apply the regulations to its findings in terms of the descriptors. That does not need to be a lengthy exercise or exposition, but it does require something more than mere lip service to the test. Whether the conclusion “At the time of the decision under appeal we find the appellant capable of undertaking all prescribed activities safely, repeatedly, to an acceptable standard and within a reasonable time period” was sufficient, without further explanation, will be for the judge who determines this matter to decide, once they have seen any further submissions.
As is customary, the Secretary of State was directed to respond to the appeal following the permission grant and has done so by way of submissions dated 21.3.25 supporting the appeal. In view of the fact(s) that this is now a supported appeal and I agree with the Secretary of State’s submissions, I propose to explain relatively succinctly why I have allowed the appeal and in doing so will focus exclusively on the decision to decide the case without a hearing because if that was wrong, the matter must be remitted for rehearing and any other alleged errors will be subsumed within the rehearing.
The FTT’s reasons for refusing the appeal, and in particular for deciding the case without a hearing, are set out in a Statement of Reasons (“SOR”) dated 15.10.24, in particular paragraph 2 thereof which provides as follows:
“The appellant had elected that the appeal be disposed of without a hearing. We considered whether we were able to decide the appeal on the basis of the evidence in the papers and in the appellant’s absence and were satisfied that it was appropriate and proportionate to do so. The diagnoses are evidenced and there was sufficient information in the papers to make an assessment on the functional effects upon the appellant”.
Rule 28 of the SEC Procedure Rules 2008 provides as follows:
Entitlement to attend a hearing
Subject to rule 30(5) (exclusion of a person from a hearing), each party to proceedings is entitled to attend a hearing.
The important right to a hearing in Rule 28 is subject to the exception contained in Rule 27 which provides as follows:
Decision with or without a hearing
27.— (1) Subject to the following paragraphs, the Tribunal must hold a hearing before making a decision which disposes of proceedings unless—
each party has consented to, or has not objected to, the matter being decided without a hearing; and (emphasis added)
the Tribunal considers that it is able to decide the matter without a hearing.
In MH v Pembrokeshire CC [2010] UKUT 28 (AAC) UTJ Jacobs explained that exercising the power under Rule 27 involved a three-stage process as follows:
Exercising that power involves three stages.
The first stage occurs when a case is put before a tribunal for consideration on the papers and without the parties. That is done on the basis that none of the parties has asked for an oral hearing. It is probably done by a clerk and without any individual judicial consideration of the case.
The second stage occurs at the start of the tribunal’s consideration. It must be satisfied that no one has asked for an oral hearing. That is a condition of its power to consider the case on the papers. It that condition has not been satisfied, it has no power to proceed and must adjourn and direct an oral hearing. This is a judicial decision under rule 27(1)(a). There is no scope for the overriding objective to apply. Either there has been a request for an oral hearing or there has not. The condition is either satisfied or it is not.
The third stage occurs when the tribunal has considered the case. It must then decide whether to give a decision or to adjourn. The adjournment may be to allow an oral hearing to take place or to give directions to a party on evidence that is required. If an oral hearing is directed, this is a judicial decision under rule 27(1)(b). If the case is adjourned with directions, this is a judicial decision under rule 5(3)(h) (case management power to adjourn). In either case, the decision must be made in the light of the overriding objective.
Subsequent case law has made it clear that it will generally be an error of law if the First-tier Tribunal simply says, in deciding to proceed with a paper hearing, that it has considered the provisions of the rules and is satisfied that it is appropriate to go ahead on that basis: see e.g. JP v SSWP [2011] UKUT 459 (AAC); see also MM v SSWP [2011] UKUT 334 (AAC) where UTJ Mesher held that “it is necessary for the tribunal toacknowledge explicitly that it has considered both of the necessary conditions for excluding the duty under rule 27(1) to have a hearing and to give some reasons … for its conclusion”.The decision of UTJ Wright in DT v SSWP (UC) [2019] UKUT 268 (AAC) which is referred to in the Secretary of State’s submissions is to similar effect.
In the present case I accept the First-tier Tribunal did go on and give some brief reasons for its decision. However, in considering whether the FtT erred in law in its approach to the decision whether or not to proceed without an oral hearing, it is important to note that the reasons given by the Tribunal for rejecting the substantive appeal included findings that the claimant had exaggerated the functional impact of her IBS (paragraph 12, SOR) and that her claims of incontinence were inconsistent with the medical evidence (paragraph 20, SOR). In other words, her credibility was not accepted.
Given that the Tribunal were minded to dispose of the appeal in this way, it seems to me, applying MH and DT (above), that the Tribunal were duty bound to revisit the decision to proceed without a hearing, and had they done so, the Tribunal would have been bound to conclude that fairness required an adjournment so as to put these matters to the claimant: see MR v SSWP [2024] UKUT 199 (AAC) where UTJ Stout said this:
“If matters arise in the course of deliberation which fairness would have required be put to the appellant if they were present at an oral hearing, then it is likely that fairness will also require that the Tribunal adjourn to give the appellant to respond to those points, whether in writing, by the provision of further evidence, or by the opportunity to attend an adjourned hearing.
The governing principles on what fairness requires in terms of matters being put to appellants were conveniently summarised by Judge Poole QC in CC v SSWP (ESA) [2019] UKUT 14 (AAC) at [3] as follows:-
3.1 Parties before a tribunal are entitled to a fair hearing, conducted in accordance with natural justice. What natural justice requires in any given case varies according to context and circumstances.
3.2 An aspect of natural justice is the right to be heard. In practice this means parties should have been given notice of the written papers before any hearing. If present at the hearing they should be given a fair opportunity to give evidence on matters in issue, including correcting or contradicting evidence.
3.3 The general position is that, in the context of social entitlement tribunals, natural justice does not demand matters of inference or credibility be specifically put to claimants at oral hearings. Demeanour (including tearfulness before the tribunal) also does not have to put to a claimant for specific comment. Claimants who have put particular Activities and Descriptors before tribunals can reasonably expect the tribunal to make observations relevant to those matters, and if appropriate take them into account, without specifically putting them to claimants for comment. Claimants have had papers, and are at the oral hearing with an opportunity to give evidence, so in the normal course none of these matters are capable of characterisation as truly new or taking claimants by surprise.
3.4 The caveat to this general position is that natural justice is always assessed in the particular circumstances of a case. It will be contrary to natural justice if a case is decided on a basis a claimant had no fair chance to address. Accordingly, when a new matter arises at the hearing, not foreshadowed in the papers, which is determinative of the appeal, then a claimant should be given a reasonable opportunity to be heard about it. In these circumstances specific matters may need to be put to claimants for comment. In keeping with the ethos of the social entitlement chamber, where possible this should done in an enabling manner”.
In the present case the matters referred to in paragraph 10 above clearly came up in the course of the Tribunal’s deliberations. These were, in my judgment, material to its decision and fairness required them be put to the claimant as falling within paragraph 3.4 of Judge Poole’s guidance above. Further, these adverse findings may have coloured the tribunal’s approach to the evidence more generally. In the circumstances, I have concluded that the Tribunal should have adjourned and relisted the appeal for an oral hearing and it was an error of law to deal with the appeal on the papers.
For those reasons I have concluded that the FTT’s decision was made in error of law. I therefor allow this appeal and remit the case for reconsideration by a fresh panel of the FTT. The claimant should understand that her success in this appeal is not determinative of the outcome of the case when it is reheard.
W J Hansen
Judge of the Upper Tribunal
Authorised for issue on 4 September 2025