Between:
DC
Appellant
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Wikeley
Decided on consideration of the papers
Representation:
Appellant: Disability Claims UK Ltd
Respondent: Mrs H. Hawley, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-Tier Tribunal (Social Security and Child Support)
Digital Case No: 1675086333030907
Tribunal Venue: Welshpool
Hearing Date: 8 July 2024
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) 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 this decision and the following directions.
DIRECTIONS
This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.
The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 8 July 2024.
The Appellant is reminded that the tribunal can only deal with the appeal, including his health and other circumstances, as they were at the date of the decision by the Secretary of State under appeal (namely 17 August 2022).
If the Appellant has any further written evidence to put before the tribunal and, in particular, further medical evidence, this should be sent to the HMCTS regional tribunal office within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).
The new First-tier Tribunal is not bound in any way either by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.
These Directions may be supplemented by later directions by a Tribunal Legal Officer, Tribunal Registrar or First-tier Tribunal Judge.
REASONS FOR DECISION
Introduction
The Appellant’s appeal to the Upper Tribunal succeeds and so there will need to be a completely fresh hearing of the original Personal Independence Payment (PIP) appeal before a new First-tier Tribunal (FTT).
The Upper Tribunal’s decision in summary and what happens next
I allow the Appellant’s appeal to the Upper Tribunal. The decision of the First-tier Tribunal involves a legal error. For that reason, I set aside the Tribunal’s decision.
The Appellant’s case now needs to be reheard by a new and different First-tier Tribunal. I cannot predict what will be the outcome of the re-hearing. So, the new tribunal may reach the same, or a different, decision to that of the previous Tribunal. It all depends on the findings of fact that the new Tribunal makes.
The factual background in summary
The Appellant has cerebral palsy. He made a claim for PIP. The Secretary of State’s decision-maker refused the Appellant’s claim, scoring him at 0 points for both daily living and mobility activities. The Appellant appealed to the FTT. The FTT confirmed the decision to disallow the claim, although the panel scored the Appellant at 2 points for PIP daily living descriptor 9b. This obviously made no difference to the result.
The grounds of appeal
The Appellant’s well-drafted grounds of appeal were as detailed as follows on Form UT1:
The First-tier Tribunal's reasoning on Dressing and undressing is set out at paragraphs 32 and 33. The issue was said to be the difficulty caused by impaired fine motor skills. The evidence was that the Appellant's employer changed his role at work because of manual dexterity and time pressure. Further, the First-tier Tribunal made a finding that the Appellant has a slight tremor at times and would have difficulty with very small fastenings (paragraph 14(i)). Referring to Upper Tribunal Judge Jacobs' decision in PE v SSWP, it noted that there was a balance to be struck, stating that, on the one hand, a tribunal should not limit itself to considering the minimum clothing necessary for warmth and decency; but that on the other hand, it would be entitled to consider practical alternatives where certain garments could not be put on or taken off. These points were taken from paragraph 19 of PE. Judge Jacobs also said that a claimant who cannot manage buttons or laces cannot be tested by reference to their ability to dress in clothes fastened by Velcro (paragraph 15). The 'practical alternatives' proposed by the First-tier Tribunal were to tops, trousers and shoes. In the final bullet point of paragraph 19, Judge Jacobs refers to the balance to be struck, between not defining away the claimant's disability and taking account of alternatives. He went on to say that it may be appropriate ...to disregard a limitation with a particular function... but it would not be appropriate to disregard a limitation with so many functions that the claimant could only wear loose, elasticated clothes with no fastenings. The First-tier Tribunal identified practical alternatives with tops, trousers and shoes, and as Judge Jacobs found in that case, we submit that it failed to show that it avoided the danger of identifying the clothing in a way that defined away the effects of the claimant's disability. Further, the authors of Social Security Legislation Vol 1 note that Judge Jacobs may not have been referred to the PIP Assessment Guide, noting that the first paragraph relating to Activity 6 reads:
This activity assesses the claimant's ability to put on and take off ... un-adapted clothing that is suitable for the situation. This may include the need for fastenings, such as zips or buttons ...
Finally, the First-tier Tribunal noted the change of role imposed on the Appellant but made a finding that he had a good level of manual dexterity (paragraph 16(ii)). We submit that it erred in not explaining why these were not inconsistent. In the alternative, its reasons were inadequate, or it made a decision that does not follow logically from the evidence.
The First-tier Tribunal addressed the Appellant's claim to Making budgeting decisions from paragraphs 37 to 40. On balance, the Tribunal determined that it was unlikely that his arithmetical thinking skills were as limited as the Appellant claimed. In paragraph 40, the Tribunal notes that while still in education, there was evidence suggesting a need to improve "arithmetical thinking...and mental math". In doing so, the Tribunal acknowledges that his skills were poor but not non-existent and that there was a plan to improve them. On the latter point, while we do not wish to reargue the appeal and accept that it does not in itself amount to an error of law, no evidence was available to the Tribunal which would suggest that there had been an improvement following this educational recommendation, nor were findings made to enquire about additional support that may have been implemented following such a recommendation. During the hearing, we acknowledged that the argument of accepting that a claimant can manage complex budgeting decisions, but not simple budgeting decisions, was not a straightforward one as stated in paragraph 37. However, we say that the Tribunal's error of law within this Activity stems from a misunderstanding of the argument being made and the subsequent misdirection it made following oral evidence from the Appellant. In paragraph 38, the tribunal states that the inability to make simple budgeting decisions was not demonstrated during the hearing. It then goes on to note that "few people would be able to keep an accurate running total in their heads when doing the grocery shopping, and the ability to use a calculator and understand what it means does indicate an understanding of the cost of items". In summary, we agree with the Tribunal's findings on the above and accept that a calculator would generally be needed to keep track of spending. However, we say that the findings within the statement of reasons did not take into consideration the argument raised in Addition M13 concerning descriptor 10 (c). Here, the issue of keeping track of spending during a grocery shopping trip to monitor spending was not raised as an issue. It was the ability to calculate what change the Appellant should receive from the cashier which caused difficulty. We say that the Tribunal's decision was erroneous in law by overlooking evidence relevant to the appeal. Further, and in the alternative, we say that the Tribunal erred in law by providing inadequate reasons for its decision.
Mrs H. Hawley, the Secretary of State’s representative in these proceedings, has provided a written response to the appeal. I extend time so as to validate that submission. Mrs Hawley supports the appeal on both grounds.
As to the first ground of appeal, Mrs Hawley concludes that the FTT “provided inadequate reasons within the SOR to support and explain their conclusions regarding daily living activity 6 – Dressing and undressing and that further findings are required concerning the claimant’s difficulties with dressing and undressing” (para. 4.13). In doing so, for example, she points out that “it is unclear from the FtT’s findings … concerning the claimant’s ability to drive a manual car, how this activity demonstrates ‘…that he has a good level of manual dexterity’. I would note that the manual dexterity required to drive a car is somewhat different to the fine motor skills that are required when dealing with buttons, zips, and tying shoelaces” (para. 4.6).
As to the second ground of appeal, Mrs Hawley submits that “The FtT dismiss the representative’s arguments noting few people would be able to mentally keep a running total of the amount of the money they are spending when grocery shopping and that the claimant using a calculator suggests that he understood the value of money and the cost of items. This finding by the FtT does not appear to address the representative’s arguments and assertions that the claimant has difficulty mentally calculating the change he will receive after paying for the goods when out shopping” (para. 4.18).
Mrs Hawley concludes as follows (at para. 4.20):
Although the FtT is entitled to give weighting to whatever evidence that they choose, where there is conflicting evidence, they must in the first instance explore and consider it a holistic manner and provide sufficient reasons explaining why they preferred the evidence that they had. In this appeal the FtT does not appear to have done that. There appears to be a distinct lack of reference to, and analysis of the evidence provided by the claimant and the … specialists concerning the impact and effects that his cerebral palsy has on his fine motor skills and arithmetical thinking when undertaking daily living activities 6 – Dressing and undressing and 10 - Making Budgeting and whether he was able to undertake those activities in accordance with the provisions detailed within regulation 4(2A) of the PIP Regs 2013.
For completeness, I should add that the Appellant’s representative has no further observations on the substance of the appeal.
Analysis: a summary
I agree with the analysis of the Secretary of State’s representative in her written submission on the appeal, which I have only summarised above.
I am accordingly satisfied that the First-tier Tribunal erred in law for those reasons, despite the care that it took. Given the submissions made before the FTT by the Appellant’s representative (at Additions M11-M13), which extended beyond the two daily living activities identified in the grounds of appeal, these errors were material. I therefore allow the Appellant’s appeal to the Upper Tribunal and set aside (or cancel) the Tribunal’s decision. I therefore remit (or send back) the original appeal for re-hearing to a new tribunal, which must make a fresh decision.
What happens next: the new First-tier Tribunal
There will therefore need to be a fresh hearing of the appeal before a new First-tier Tribunal. Although I am setting aside the previous Tribunal’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to PIP for the period in issue and, if so, which component(s) and at what rate(s). That is a matter for the good judgement of the new Tribunal. That new Tribunal must review all the relevant evidence and make its own findings of fact.
In doing so, however, unfortunately the new Tribunal will have to focus on the claimant’s circumstances as they were as long ago as in August 2022, and not the position as at the date of the new hearing, which will obviously and regrettably be some three years or so later. This is because the new Tribunal must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998). The decision by the Secretary of State, which was appealed to the FTT, was taken on 17 August 2022. It may possibly be, given the nature of cerebral palsy, that there has been no significant change in the Appellant’s functioning in the meantime, but that will be a matter for the evidence.
Conclusion
I therefore conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The case must be remitted for re-hearing by a new tribunal subject to the directions set out above (section 12(2)(b)(i)). My decision is also as set out above.
Nicholas Wikeley
Judge of the Upper Tribunal
Authorised by the Judge for issue on 20 June 2025