LK v Secretary of State for Work and Pensions

I am satisfied on the arguments before me that the First-Tier Tribunal (“FTT”) erred in law in the decision to which it came on 10 February 2025 and that its decision should be set aside as a result.

The FTT erred in law in failing to give adequate reasons for its decision. In particular, the FTT’s reasons fail to provide an adequate explanation for why it concluded that the appellant’s needs were not on the evidence substantially in excess of the normal requirements of a child of his age.

The reasoning has to be judged on the basis of the reasons provided by the three-member FTT as a whole for its decision of 10 February 2025. Unless the FTT has reviewed its decision under section 9(4)(b) of the Tribunals, Courts and Enforcement Act 2007, which it has not, the FTT cannot lawfully supplement those reason when refusing permission to appeal: JS v SSWP (DLA) [2013] UKUT 100 (AAC).

Even reading the FTT’s reasoning as a whole, the flaw in the FTT’s reasoning is exemplified by paragraphs 33 and 37 of its reasons. These read as follows:

“33.

The key finding of fact was that, while [the appellant’s mother] had given entirely credible evidence and noting the evidence in the DLA claim form, this suggested some need for additional guidance and supervision of [the appellant] while outdoors, and some additional attention needed during the day, this did not amount to being ‘substantially in excess of the normal requirements of persons their age’ who do not have [the appellant’s] medical conditions. The key words here are ‘substantially in excess’….

37.

Care; Lowest Rate - While the Tribunal found that [the appellant] did receive a little more attention during the day in connection with bodily functions, this did not amount to a level of attention that was substantially in excess of that needed by a child who was the same age as [the appellant] but who did not have his medical conditions. Therefore, there was no entitlement to the lowest rate of the care component of DLA. In making this finding the Tribunal noted the amount of care given that had been set out in the DLA claim form. The lack of attention and supervision provided at school, and the fact that [the appellant] appeared to participate in the PGL activity holiday in much the same way that the other children did also provided support for the Tribunal’s finding. It also appeared that [the appellant] didn’t require a significant amount of attention from his grandparents during the day over the Christmas period, as he was allowed to play on a computer. The lack of an EHCP or similar extensive supervision was also noted. The contents of the report following the observation of [the appellant] by the ADHD Specialist Nurse provided insufficient evidence to support a finding that [the appellant] should be entitled to the lowest rate of the care component of DLA.”

The FTT therefore accepted on the evidence that the appellant had some additional need for attention during the day over that of a child of the same age with normal requirements for attention, but it did not identify what those additional/excess needs were.

I agree with the appellant (and the Secretary of State) that without identifying what those additional needs were, which the FTT accepted the appellant had, the FTT failed to provide an adequate explanation for why the appellant’s needs were not substantially in excess of the ‘normal’ attention needs of a child of the same age as the appellant.

One can only tell if a person is substantially taller than the average height of a person of the same sex and age as that person if it is known what that average height is and it is known what the taller person’s height is. That is axiomatic. In not identifying which care and mobility needs the FTT accepted the appellant had which were in excess of the normal care and mobility needs of a child of the same age as him, the appellant was unable to understand which of the mobility and care needs that he was relying on had been accepted by the FTT and which had not. That deficit in the reasoning amounted to a material error of law.

The Secretary of State supports the appeal to the Upper Tribunal being allowed in a helpful submission of 29 October 2025. The material parts of that submission read:

“4.2…..The claimant’s representatives state at pages 7-9 of the PTA, that the FtT have erred materially in law by failing to adequately explain within their SOR, what additional attention they believe the claimant requires with respect to their bodily functions.

4.3

It is my submission that the FtT has erred in law in both its fact finding and duty to provide adequate reasons for its decision. The conclusion from the FtT on how it assessed the claimant’s functional abilities appears limited in its reasoning. It seems that what the FtT has provided at paragraphs 33 and 37 of the SOR in relation to whether the claimant requires attention during the day in connection with his bodily functions, fails to adequately explain their findings as to what attention the claimant requires. I submit that my views are generally aligned with those of the UT Judge that the FtT has arguably erred materially in law for the reasons set out below.

4.4

For a claimant to be entitled to the lowest rate of the care component it is required that they require attention from another person for a significant portion of the day connection with their bodily functions. With regards to this, the FtT have failed to effectively communicate, within their SOR, the level of attention they believe the claimant requires. This is shown at Para 33 of the SOR:

“The key finding of fact was that, while [the appellant’s mother] had given entirely credible evidence and noting the evidence in the DLA claim form, this suggested some need for additional guidance and supervision of [the appellant] while outdoors, and some additional attention needed during the day, this did not amount to being ‘substantially in excess of the normal requirements of persons their age’ who do not have [the appellant’s] medical conditions. The key words here are ‘substantially in excess’.”

4.5

Whilst the FtT states that the claimant requires ‘additional guidance’ and ‘additional attention’, the tribunal fails to expand on this point and does not state which evidence it has considered within the bundle to constitute as an example of this. This error of law is repeated at Para 37 of the statement of reasons when the FtT states:

“Care; Lowest Rate - While the Tribunal found that [the appellant] did receive a little more attention during the day in connection with bodily functions, this did not amount to a level of attention that was substantially in excess of that needed by a child who was the same age as [the appellant] but who did not have his medical conditions. Therefore, there was no entitlement to the lowest rate of the care component of DLA. In making this finding the Tribunal noted the amount of care given that had been set out in the DLA claim form. The lack of attention and supervision provided at school, and the fact that [the appellant] appeared to participate in the PGL activity holiday in much the same way that the other children did also provided support for the Tribunal’s finding. It also appeared that [the appellant] didn’t require a significant amount of attention from his grandparents during the day over the Christmas period, as he was allowed to play on a computer. The lack of an EHCP or similar extensive supervision was also noted. The contents of the report following the observation of [the appellant] by the ADHD Specialist Nurse provided insufficient evidence to support a finding that [the appellant] should be entitled to the lowest rate of the care component of DLA.”

4.6

Once again, I respectfully submit that the FtT has erred in law as they have failed to expand on what ‘level of attention’ they found the claimant to require. Whilst the FtT does provide examples of times where the claimant did not require supervision such as the school trip, it remains unclear what evidence it did consider that suggests the claimant does at times, require supervision for parts of the day in connection with their bodily functions.”