DH v Secretary of State for Work and Pensions (PIP)

I am satisfied on the arguments before me that that the First-Tier Tribunal (“the FTT”) erred in law in the decision to which it came on 14 January 2025 and that its decision should be set aside as a result.

The FTT erred in law in my judgement in failing to provide an adequate account in its findings in fact and its reasons that addressed the appellant’s specific case on his appeal about why he needed an aid under PIP daily living activity 4.

The appellant’s specific case on daily living activity 4 (washing and bathing) was clearly set out before the FTT in his representative’s submission to the FTT of 21 May 2024 (at page 7 of addition C). That case was:

“4.

Washing and bathing

[The appellant] was awarded 0 points for washing and bathing.

The reality is that he:

b.

Needs to use an aid or appliance to be able to wash or bathe. 2 Because of the injury to his left knee when he was serving in Afghanistan (and knock on effects to his right knee) he is at risk of falls in the shower and as stated in the PA49 he has a suction cup grab handle (an aid and appliance) to assist with balance.”

I agree with the appellant in his grounds of appeal that this was an argument that an aid was needed to enable the appellant to wash and bathe ‘safely’ under regulation 4(2A)(a) of the Personal Independence Regulations 2013.

In my judgement, the FTT’s reasons, which includes its findings in fact, do not provide an adequate explanation which grapples with this case on activity 4 and explains why it was not made out. The FTT did not award the appellant any points under activity and so decided that the appellant did not need an aid to bathe or shower safely. However, why the FT so decided is not clear from its reasons. Although it is axiomatic that the reason smuts be read as whole, the most relevant parts of the FTT’s findings and reasons read as follows:

“7.

The appellant’s representative….had submitted a written submission (addition C) and was asking the tribunal to consider the following descriptors:….4B….

16.

[The appellant] suffered a knee injury when serving in Afghanistan in 2013 and had a piece of metal extracted out of his knee. Since then, he alleges knee pain and about 2 times a year when it is really disabling, and he takes naproxen to help with the swelling.

26.

…Although he claimed poor grip [in terms of daily living activity 1], he described gripping on the grab rail in the bathroom….

28.

He can shower himself although might have issues if he dropped something when his back was sore.

43.

We concluded that overall, the health professional’s report was sufficiently detailed and balanced in its assessment of [the appellant’s] ability and that his health conditions had been appreciated and picked up on by the health professionals. However, after hearing the evidence today, we did award additional descriptors…..

44.

We felt that the appellant, albeit innocently, overstated some of his issues. We had to put weight on his ability to drive, especially regularly his HGV, to walk reasonable distances without stopping. He is looking after his daughter at weekends and also himself with minimal support.

47.

Looking at the descriptors put in issue…

d)

Descriptor 4 – Washing and bathing

[The appellant] at the time period under consideration had no significant physical issues with carrying out these activities, although it was alleged, he occasionally struggled to bend. We did not accept that for the majority of the time he met the tests for this descriptor….

48.

We considered we had sufficient evidence before us to reach a just and fair decision. As stated, we considered that albeit innocently the appellant overstated his difficulties in particular with his claims of mobility issues…..”

I can see nothing in these findings which either expressly or by necessary implication addresses and answers the appellant’s case for why he needed an aid to be able to shower safely given his knee problems. That case was that because of problems in his knees, the appellant was at risk of falls in the shower and he therefore he used an aid for balance when showering. None of the findings or reasons of the FTT address this case. The finding in paragraph 16 of the reasons is unclear about (i) whether the ‘allegation’ of knee pain was accepted, (ii) what impact the knee pain had outwith the 2 times a year when it was really disabling, and (iii) whether the swelling was present all the time; and it does not deal with the claimed balance problems caused by the knee(s). Paragraph 28 of the reasons does deal with the appellant’s ability to shower, but its focus is only on what may occur in the shower when the appellant’s back was sore and does not say anything about any balance problems caused by the knee(s) or the aid the appellant said he needed to use in the shower. As the Secretary of State points out, the FTT had earlier (in paragraph 26 of its reasons) seemingly accepted the appellant gripped on the bath rail in the bathroom, which was evidence that might have supported his case about having balance problems in the shower.

Nor in my judgement does the FTT’s doubts about the accuracy of some of the appellant’s evidence, based on his innocently overstating some of his issues, provide a clear answer to his case under activity 4. As I have emphasised, the overstating was only found by the FTT to be in respect of ‘some’ of the issues. Moreover, the key ‘overstated’ issues were (per paragraph 48 of the reasons) the appellant’s claims under the mobility activities. Nowhere do the findings or reasons of the FTT state that the appellant’s evidence was overstated about having balance problems, due to his knees, when showering.

There is much case law on what constitutes ‘adequate’ reasons. One summary of that case law is provided in the 4 June 2024 Practice Direction from the Senior President of Tribunals: Reasons for decisions. Paragraphs 5 and 6 of this Practice Direction state, respectively, that “[the reasons] must always be….focused upon the principle controversial issues on which the outcome of the case has turned” and “[r]easons need refer only to the main issues and evidence in dispute and explain how those issues….have been resolved”. One clear issue before FTT was whether the appellant needed to use an aid to shower safely. The FTT’s reasons do not provide an adequate explanation for why the FTT resolved that the appellant did not need to use an aid when showering in order to carry out that activity safely.

Given the FTT by its decision upheld an award of 7 daily living points, the above error of law was a material error of law as an award of 2 points under descriptor 4(b) would have led to the FTT awarding the appellant the standard rate of the daily living component of PIP.

For the reasons set out above, the appeal succeeds. The Upper Tribunal is not able to re-decide the first instance appeal, nor is it asked to do so. The appeal 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.