Appeal No. UA-2025-001059-PIP
Between:
AF
Appellant
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Wright
Decided on the papers
On appeal from:
Tribunal: First-tier Tribunal (Social Entitlement Chamber)
Tribunal members: Judge M D Joshi, Mrs D J Richards and Dr C S Bamford
Tribunal Case Nos: SC285/23/03006
Tribunal Venue: Birmingham
Decision Date: 9 January 2025
DECISION
The decision of the Upper Tribunal is to allow the appeal.
The decision of the First-tier Tribunal made on 9 January 2025 under case number SC285/23/03006 was made in error of law.
Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, the decision is set and the appeal is remitted to an entirely differently constituted First-tier Tribunal to be redecided, after an oral hearing, and in accordance with the law set out in this decision.
REASONS FOR DECISION
I am satisfied on the arguments before me that that the First-Tier Tribunal (“FTT”) erred materially in law in the decision to which it came on 9 January 2025 and that the decision should be set aside as a result.
Permission to appeal was granted by District Tribunal Judge Burns on 30 June 2025. The ground on which Judge Burns gave permission to appeal reads:
“….whether the Tribunal correctly considered Regulation 7 (of the Social Security (Personal Independence Payment) Regulations 2013) and made sufficient findings on whether any of the Descriptors in dispute applied during a two-hour period in the morning and whether or not this was de minimis (meaning so small that it was insignificant and can be disregarded).
2. The Tribunal arguably made insufficient findings about whether [the appellant] could take nutrition unaided during this two-hour period (ie eat his breakfast).
3. The Tribunal arguably made insufficient findings about whether [the appellant] could manage his therapy (take his medication) during this two-hour period.
4. The Tribunal arguably made insufficient findings about whether [the appellant] could get on and off the toilet during this two-hour period (when he was less mobile) and attend to his personal hygiene.
5. The Tribunal arguably made insufficient findings about whether [the appellant] could get himself dressed without aids and assistance during this two-hour period.
6. The Tribunal found that this two-hour period did not amount to “a significant
portion of the day” (see paragraph 27 of the Statement of Reasons). This is not the correct legal test. This is the test for the lower rate of the care component for Disability Living Allowance (see s. 72 (1) (a) (i) of the Social Security Contributions and Benefits Act 1992). A claimant’s varying ability to perform a task throughout the day was considered in TR v SSWP [2015] UKUT 626 AAC and the inability to perform for a certain amount of time in the day is disregarded only if it is said to be de minimis. However, I am not clear from the findings made whether [the appellant] was unable to perform some of the Activities in issue unaided for the whole of the two-hour period or whether this improved towards the end of the two hours and if so whether any inability would fall within the de minimis principle.
7.This is all relevant because if [the appellant] needed aids say to say eat his breakfast, attend to his personal hygiene on the toilet and get himself dressed for a 2-hour period in the morning (if not discounted as being for too short a time) would mean that he would have been eligible for a standard award of the Daily Living Component.”
In essence, for the reasons more fully explained by the Secretary of State in his submission on this appeal to the Upper Tribunal (a submission with which I agree), the FTT erred in law in not correctly considering regulation 7 and in not explaining sufficiently why the PIP descriptors in dispute were not satisfied during the two hour period in the morning. In particular, the FTT failed to apply, or failed to explain how it had applied, case law such as TR v SSWP [2015] UKUT 626 AAC, AE v SSWP [2024] UKUT 381 (AAC) and EW v SSWP [2025] UKUT 307 (AAC).
The Secretary of State’s submission reads as follows:
“4.2 the claimant was awarded 4 points for daily living descriptors 1(b), 4(b), and 4 points for the mobility descriptor 2(b). Therefore, any errors of law would need to result in a minimum of 4 additional points being awarded for the daily living descriptors and 4 points for the mobility descriptors of PIP for it to be material.
4.3 It is my submission that the FtT has erred in law, in both their fact finding and duty to provide adequate reasons for their decision. The conclusions from the FtT on how they assessed the claimant’s functional abilities appears limited in their reasoning. It seems that what the FtT has provided within the SOR with regards the claimant’s difficulties with the daily living and mobility activities of PIP, appears to be no more than a rehearsal of part of the evidence and a conclusion without an adequate explanation.
4.4 The claimant’s main health condition for the purposes of this appeal is longstanding Rheumatoid Arthritis (RA). In the PIP2 questionnaire form dated 09/04/2023 [pp.9-44] he reports difficulties with undertaking the following activities due to pain and stiffness relating to his RA, which affects his functional ability, particularly in the mornings after getting up: 1 - (Preparing food), 2 - (Taking nutrition), 3 - (Managing therapy or monitoring a health condition), 4 - (Washing and bathing), 5 – (Managing toilet needs or incontinence), 6 – (Dressing and undressing) and mobility activity 2 – (Moving around).
4.5 It is notable that in a letter from the Consultant Rheumatologist dated 09/03/2023 [pp.5-6] following a face to face consultation at the request of the GP, it is reported that the claimant has:
“…now developed over the last few months increasing early morning stiffness and more musculoskeletal symptoms. He is now unable to make a fist. He finds a shower particularly helpful in the morning …MCP and MTP squeeze was positive bilaterally.
There was clinical synovitis in four MCP’s and 4 PIP’s today.
My impression is that he now has a new onset of seropositive rheumatoid arthritis, and I have recommended treatment with Methotrexate… ”
4.6 I would note that in further letters from the Rheumatology Department at Solihull Hospital dated 12/05/2023, 05/06/2023, 18/06/2023 and 24/08/2023 [Addition B pp.1-8] the claimant reported side effects after taking Methotrexate, which was prescribed to help manage the symptoms of his RA, as a result he was advised to stop taking the medication and consideration was to be given to prescribing an alternative medication.
4.7 Moreover, in letters from the Rheumatology Department dated 13/04/2023 and 24/08/2023 [Addition B pp.9-11 and pp.1-2] the claimant reports that he experiences “early morning stiffness for 3 hours” and when examined on 24/08/2023 the following was recorded “Today your symptoms are feet are painful, PIP’s tender and swollen, thumbs painful.”
4.8 In the consultation report completed by the Healthcare Professional (HP) on 02/06/2023 [pp.45-69] the following information is recorded from the claimant at p.46 concerning his RA:
“This is currently managed by a specialist who he sees once every 6 months and last saw them 3 months ago. He also speaks with the specialist nurse around once every 2 weeks…He is receiving physiotherapy once every 2 weeks …The symptoms of the condition include reduced mobility due to pain particularly effecting his feet, shoulders, hips, and legs. He reports pain is present on the majority of days and more severe on a morning time and after doing physical movements such as walking and bending…He is prescribed Naproxen 500 mg taken twice a day for pain (partially effective), OMEPRAZOLE 20 mg taken once a day for acid reflux and stomach protection (partially effective), CO-CODAMOL 30/500mg 1 tablets taken around once a day for pain (partially effective). This impacts on his ability to do physical activity.”
4.9 The FtT when considering the claimant’s appeal note at paragraph 12 of the statement of reasons (SOR) the claimant had left his previous employment in October 2023 due to illness and that he had started a new job in November 2023, recording the following details about his employment:
“…He is a caretaker of properties for students. His role allows him more breaks. He starts at 7am and then finishes the morning shift at 11am. He can go home and rest. He then begins the next shift at 2pm until about 6pm Monday to Fridays. He stated he had not had any formal significant sick leave in this role but could take his holidays whenever he was not well…”
4.10 At paragraphs 13 and 16 of the SOR the FtT record the following evidence from the claimant concerning the impact that RA has on his daily life:
“13. He explained his arthritis impacts his hands and feet the most. It also impacts his neck and back; and less so his hips and knees… It takes him about two hours in the morning to be functioning. Most of the days he wakes up at 5am to be at work for 7am. He takes his pain killers and needs to have a shower first thing which helps him to be more mobile…..
16.He stated he would stop walking after about 50 metres. He stated within this distance he could do his job. He stated he could walk more than 50 metres but would be in pain the following day. He did not use any walking aid.”
4.11 The FtT on considering the totality of the evidence before them refused the claimant’s appeal providing the following reasoning at paragraphs at paragraphs 26-27 of the SOR:
“26. The Tribunal make the following general findings of fact applicable to all the activities considered. The Tribunal find that for most of the days in the required period the Appellant is able to work in a facilities / caretaker role – on his own evidence he works Mondays to Fridays on a full time basis and has had limited sick leave. The Tribunal acknowledge that his most recent role is split into two shorter shifts of 4 hours each on a daily basis allowing him an opportunity to have a break between. The Tribunal find that his job does require him to carry out minor repairs such as changing taps, fixing leaks, and changing lights. In doing this work he would have to use his hands including the use of his tools such as a cordless drill with some adaptations. The HCP recorded that in the facilities manager role he also had to do health and safety checks within the properties.
The Tribunal have also considered that in the morning it can take him two hours to be more mobile and for the medication to work. The Tribunal find that when considering his average day and what he is able to then do that the time it takes him to be more mobile does not amount to a significant portion of the day.”
The FtT in reaching their conclusions (repeated above) appear to have been somewhat narrow in their findings, seemingly concentrating on the claimant’s employment and early rising, without adequately addressing the claimant’s evidence regarding the impact and symptoms of his RA, which include early morning stiffness and pain. The FtT simply note the nature of the claimant’s employment and that “…in the morning it can take him two hours to be more mobile and for the medication to work.” It is noteworthy that the FtT at paragraph 13 of the SOR record the claimant’s evidence that on “Most of the days he wakes up at 5am to be at work for 7am. He takes his pain killers and needs to have a shower first thing which helps him to be more mobile.”
Upon reading the SOR the FtT do not appear to have exercised their inquisitorial duty, to determine what early morning functional restrictions the claimant may have due to pain and stiffness with regards to the claimed activities. This is notwithstanding the fact the FtT acknowledges that in the mornings it can take the claimant 2 hours to become more mobile and for his pain relief medication to work [paragraph 13 of the SOR].
The FtT are required to consider the provisions detailed within Regulations 4(2A) and 7 of the Social Security (Personal Independence Payment) Regulations 2013 (the PIP Regs 2013)… when determining whether or not a descriptor applies…
Moreover, the FtT are also required in circumstances similar to those of the claimant to consider the guidance provided in the decision TR v SSWP (PIP) [2015] UKUT 0626 (AAC) (“TR”) reported as [2016] AACR 23; paragraph 32 of the decision appears to be particularly pertinent in the present case and states the following:
“32. Following the above reasoning, therefore, it seems to me that for a descriptor to apply, on a given day, then the inability to perform the task or function must be of some significance, that is to say something which is more than trifling or, put another way, something which has some tangible impact upon a claimant’s activity and functioning during a day but not more than that. So, by way of illustration, to use the example given in the PIP Assessment Guide, if a person were to take his painkilling medication at the start of the day and it was to take effect quickly, so that his normal daily routine would not be inhibited in any way, then the relevant descriptors, in this context perhaps those relating to functions such as dressing, washing and toileting, would not be satisfied such that no points would be scored. If, however, the medication did not start to work for a period such as to delay his going about his daily business then it would be satisfied. Such a claimant, having taken his medication, could not be expected to await embarking upon his washing, dressing and toileting for a significant period for his medication to take effect. This, again, would seem to be in accordance with the overall legislative intention and seems to me to be consistent with the Government’s response.”
Whilst, the FtT acknowledge that it took the claimant 2 hours to become more mobile and for his medication to work and this period did “…not amount to a significant portion of the day.” I would observe that the FtT’s referral to the phrase a “signification portion of the day” in my opinion appears to be a reference to a requirement, which is contained within in Section 72(1)(a)(i) of the Contribution and Benefits Act 1992 for the care component…
Upon my reading of the SOR what the FtT appears to have done is considered whether the period of 2 hours that the claimant reports being functionally limited due to pain and stiffness does or does not amount to a significant period of time. However, this is not the test, the decision in TR requires that consideration be given to whether a claimants:
“…inability to perform the task or function must be of some significance, that is to say something which is more than trifling or put another way, something which has some tangible impact upon a claimant’s activity and functioning during a day but not more than that.
In light of the above I respectfully submit that the FtT has materially erred in law, as they do not appear to have applied the guidance referred to at paragraphs 4.15 and 4.17 of my submission relating to the decision in TR (repeated above). Additionally, the FtT have not made sufficient findings within the SOR to adequately determine how the claimant’s RA, pain and early morning stiffness impacts on his ability to undertake such activities as taking nutrition, taking medication, washing, and bathing, manging his toilet needs, dressing, and moving around. As a result, I submit that further findings are required regarding functional limitations resulting from the claimant’s early morning pain and stiffness and whether any functional limitation meets the threshold detailed within the TR decision.
Moreover, I note that the claimant’s work pattern in such that it allows him a break of 3 hours in the middle of the day to go home and rest, as his morning shift starts at 7am and finishes at 11am and then his afternoon shift begins at 2pm and ends at 6pm. It is noteworthy, that the FtT have failed to use their inquisitorial duty to establish why the claimant has to rest for 3 hours in the middle of the day. Was this due to the impact and effects of his RA and pain he experiences whilst working and that he needs time to rest and recover? I, therefore, courteously submit that further findings are required on this matter, to establish if the claimant is able to undertake the claimed activities in accordance the with the provisions detailed within Regulations 4(2A) and 7 of the PIP Regs 2013.
Although the FtT is entitled to give weighting to whatever evidence that they choose, where there is conflicting evidence it 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 do not appear to have done that. There seems to be a distinct lack of evaluation of the claimant’s evidence regarding the impact of the co-morbidities of his RA, early morning stiffness and pain when undertaking the claimed activities and the evidence contained within the Rheumatology Department’s letters at pp. 5-6 and Addition B pp.1-10. Therefore, it could be said that had the FtT given appropriate consideration to all the evidence, including accurately identifying the effects of the claimant’s conditions, the FtT may have considered the claimant’s limitations. As such, I submit that the FtT have failed to give adequate reasons, as to why evidence in parts was not accepted when deciding what points should be awarded.
In view of the above, I respectfully submit that the inadequacy of reasons makes it difficult for the claimant to know whether the FtT have applied the correct legal tests in assessing the evidence, making their findings of fact, and arriving at their decision. If the UT judge accepts my submissions that the FtT have erred in law, I invite him to set aside the FtT’s decision and remit the appeal to be re-heard by a differently constituted FtT.
For completeness the UT Judge will wish to know that the claimant has not made any further claims to PIP since the appeal hearing held on 09/01/2025.”
For the reasons set out above, the appeal succeeds. The Upper Tribunal is not able to re-decide the first instance appeal. That appeals will therefore have to be re-decided afresh by a completely differently constituted FTT, after an oral hearing.
The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether his appeal will succeed on the facts before the new FTT, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.
Stewart Wright
Judge of the Upper Tribunal
Authorised for issue on 20th February 2026