Between:
ZE
Appellant
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Wikeley
Decided on consideration of the papers
Representation:
Appellant: In person
Respondent: Ms E. Sakpa, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-Tier Tribunal (Social Security and Child Support)
Digital Case No: 1683051663445380
Tribunal Venue: Havant
Hearing Date: 16 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 16 July 2024.
The Appellant is reminded that the tribunal can only deal with the appeal, including her health and other circumstances, as they were at the date of the decision by the Secretary of State under appeal (namely 16 February 2023).
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
The short version is that the Secretary of State’s decision-maker refused the Appellant’s claim for PIP, scoring her at 0 points for both daily living and mobility. The Appellant appealed to the FTT. The FTT confirmed the decision to disallow the claim, although the panel scored the Appellant at a total of 7 points for PIP daily living descriptors 3b, 4c, 9b and 10b. This score was just one point short of the 8-point threshold for the award of the standard rate of the PIP daily living component. It followed that the award of one further scoring descriptor for the daily living component would have been sufficient to ground entitlement to PIP.
The grounds of appeal
The Appellant’s grounds of appeal were as detailed on Form UT1. In summary, she argued that the FTT had erred in law by failing to consider the role of her daughter as a source of prompting for the purposes of daily living activities 1 and 2. I gave her permission to appeal.
Ms E. Sakpa, the Secretary of State’s representative in these proceedings, supports the appeal. She sums up her analysis as follows (SOR = statement of reasons):
Evidently, from the SOR, the FtT accepted that the Appellant was only motivated to cook when she had her daughter around, however it is unclear why the FtT failed to avert its mind to whether the presence of the Appellant’s daughter was what prompted her to prepare meals. Part 1 of Schedule 1 of the Social Security (Personal Independence Payment) Regulations 2013 defines “prompting” as reminding, encouraging or explaining by another person. In the case of PM v SSWP [2017] UKUT 502 (AAC), the UT Judge held that:
“9. The evidence of the Appellant and the GP was that the Appellant could undertake certain activities without prompting only when he was sufficiently motivated as a result of the children’s presence. If the tribunal accepts that to have been the position, as a matter of fact, it will then need to decide whether that is evidence that the Appellant needed prompting to perform any of the activities in Schedule 1. Part 1 of Schedule 1 of the PIP Regulations defines “prompting” as “reminding, encouraging or explaining by another person”. This requires some active steps by another person. It would not be satisfied by something passive such as the mere presence of the children. Nonetheless, it may be that what the children did could have amounted to prompting, for instance if the children actively encouraged the Appellant to undertake certain activities. It does not seem to me to matter that the children were not consciously encouraging him if that was the effect of what they did. Alternatively it may be that the effect of the children’s presence is evidence of a need for prompting even if the Appellant did not in fact receive it when he needed it. For instance if when alone the Appellant lacked motivation to perform some activities without prompting, the question then arises as to when that would occur and how it would affect him in practice.”
Thus, I submit that the FtT erred in law when it failed to consider whether the Appellant’s daughter was providing “prompting” which then motivated her to prepare and cook a simple meal, or if the effect of the presence of her daughter was evidence of a need for prompting. It is my submission that the FtT ought to have explored and made further fact finding in this respect.
For completeness, I should add that the Appellant has no further observations on the substance of the appeal, although she does make submissions on the manner of disposal.
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. I therefore allow the Appellant’s appeal to the Upper Tribunal and set aside (or cancel) the Tribunal’s decision.
The question then is the appropriate manner of disposal. The Appellant invites me to re-make the decision under appeal, in effect arguing that there is no need for the matter to be remitted to a fresh tribunal. However, on balance I consider that the factual issues are best determined by a fact-finding first instance tribunal that has the range of experience and expertise reflected by the panel’s three-person composition. The new Tribunal should take into account the guidance provided by Judge Markus KC in PM v SSWP (PIP). This manner of disposal would also have the advantage that the appeal can be re-heard at a venue more convenient for the Appellant.
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 February 2023, and not the position as at the date of the new hearing, which will obviously and regrettably be more than two years 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 16 February 2023.
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