VS v The Secretary of State for Work and Pensions

On 16 March 2023, VS made a claim for personal independence payment (“PIP”). The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, invited VS to take part in a telephone medical assessment on 05 June 2023. Having received advice from that assessment, DWP awarded VS 2 points for daily living activities and 0 points for mobility activities. As the threshold for an award of either component of PIP is 8 points, DWP decided VS was not entitled to that benefit.

VS appealed to a First-tier Tribunal on 22 October 2023. VS’s appeal was determined after a face-to-face hearing on 28 October 2024 by a First-tier Tribunal (“FTT”). The FTT awarded VS 5 points for daily living activities (descriptors 1.c, 3.v and 8b) but this was insufficient for VS to be awarded any rate of PIP.

On 27 March 2025, the Upper Tribunal received an application from Mr Khan, acting on behalf of VS, asking for permission to appeal against the FTT’s decision. In a decision dated 11 May 2025, I granted VS permission to appeal on the basis it was arguable the FTT had made one or more of the following errors of law.

Making adequate factual findings and / or providing adequate reasons for its decision about engaging socially with other people face to face: it was arguable the FTT failed to make adequate factual findings or provide adequate reasons for its decision to award VS no points for this activity. The definition of “engage socially” in Schedule 1 to the PIP regulations refers to establishing relationships. The FTT’s examples at paragraph 13 of its Statement of Reasons did not deal clearly with whether VS could establish new relationships. It referred to her work being customer-facing, but not what this would involve.

While the FTT’s decision was made before KW v SSWP [2024] UKUT 410 (AAC)was published (and therefore before the FTT would have known about it), there was existing case law focusing on the need to consider the definition of engage socially. See, for example, RC v SSWP (PIP) [2017] UKUT 332 (AAC).

Making adequate factual findings and / or providing adequate reasons for its decision about planning and following a journey: the FTT dealt with this at paragraph 7 of its Statement of Reasons. The FTT appeared to have focused particularly on VS’s ability to follow the route of a journey when driving. However, Mr Khan’s written representations to the FTT asked it to consider her ability to follow the route of a journey in various ways including driving, travelling on foot and using public transport, citing paragraph 10 of CPIP/1094/2019. The appeal bundle suggests VS described a particular difficulty managing to follow the route of a journey using public transport such as a bus, train or the underground. Apart from acknowledging your difficulty using public transport to get to Greenwich on one occasion, the FTT has focused, however, on what VS could manage while driving, arguably to the exclusion of considering her ability to manage other forms of transport (where VS’s ability to read information may have been relevant).

The FTT also did not address the specific incident recorded on 30 June 2021 of VS driving to Birstall when she was meant to drive elsewhere to work and not realising she had gone to the wrong place (Addition F2, page 318 of appeal bundle).

Mr Wadham is the Secretary of State’s representative in these proceedings. He has provided a helpful written submission dated 26 June 2025. Mr Wadham supports the appeal and invites the Upper Tribunal to set aside the FTT’s decision dated 28 October 2024 for containing material errors of law, for the reasons set out below.

Adequacy of factual findings and / or reasons for its decision about engaging with other people: Mr Wadham submits the Statement of Reasons does not make clear how the FTT made its decision regarding PIP daily living activity 9 (engaging with other people face to face). He explains the FTT set out undisputed facts at paragraph 5 of the Statement of Reasons, including that VS was taking a moderate dose of the antidepressant citalopram (30mg, reduced from 40mg in autumn 2022). Mr Wadham observes that at paragraph 11 of the Statement of Reasons, the FTT’s reasoning appeared to lean towards considering that VS’s mental health condition was improving. However, the PA4 medical report dated 05 June 2023 stated that VS had been on a higher dose of citalopram, but this was halved due to heart palpitations and eventually increased to 30mg per day. Mr Wadham argues the FTT did not consider this factor in relation to VS’s treatment for her mental health condition and that her reduced dosage did not indicate an improvement in mental health at the date of DWP’s decision.

Mr Wadham refers to the evidence that by the date of DWP’s decision, VS was able to join in when her work buddy took the lead in dealing with customers at their properties. He explains this indicated a potential improvement in VS’s condition. The FTT stated that at the date of DWP’s decision, VS had a buddy in place at work but did not consider it further in relation to whether VS received some form of support engaging with customers from her work buddy, or why this adjustment was in place. Mr Wadham submits the FTT did not appear to consider whether this might indicate VS had some difficulties with social engagement.

The FTT indicated in the Statement of Reasons that VS’s condition had improved between the date of DWP’s decision and the date of her appeal. Mr Wadham submits that the FTT did not consider whether VS met the required period condition in regulation 12 of the Social Security (Personal Independence Payment) 2013, which requires the functional limitation to last at least 9 months from the date of claim. Mr Wadham argues that if VS’s mental health condition improved after the date of DWP’s decision, it might still have met the prospective test. The FTT has not, however, considered it in those terms.

The PA4 medical report stated VS would attend hospital appointments with her mother (page 77 of appeal bundle). Mr Wadham submits the FTT did not establish the reasons for this. In paragraph 13 of the Statement of Reasons, the FTT focused on VS being able to socialise with friends and take her daughter to parties but did not give any significant consideration to how VS might engage with people she was unfamiliar with. Mr Wadham submits that because the FTT did not address these factors and limited which social interactions it considered to largely look at people with whom VS was familiar, it was not possible for the FTT to assess VS’s ability to engage with other people face to face adequately.

Mr Wadham observes the FTT appears to have accepted that VS experienced symptoms of ADHD (see paragraph 9 of Statement of Reasons) and had been referred for assessment of this. He argues, however, that the FTT had not addressed any outcome of that referral, particularly what was recorded at Addition A, pages 39-40 of the FTT bundle. The FTT dismissed some aspects of VS’s behaviour as naïve (see paragraph 13 of Statement of Reasons). Mr Wadham submits that had the FTT considered the relevance of ADHD, it might have resulted in a different conclusion in respect of activity 9.

Adequacy of factual findings and / or reasons for mobility activity 1: Mr Wadham observes that at paragraph 7 of the Statement of Reasons, the FTT concluded VS could perform any journey because she has not experienced overwhelming psychological distress to the point of abandoning a journey. The FTT referred to VS preferring a familiar, repetitive route and never abandoning a route but occasionally crying or ringing a friend for verbal support while on a journey. Mr Wadham argues that the FTT does not appear to have established whether VS would always have to do this while undertaking unfamiliar journeys. Nor did the FTT assess what level of verbal support VS’s friend provided before she could continue the journey.

In paragraph 9 of the Statement of Reasons, the FTT acknowledged VS’s attentional difficulties and her proclivity to distraction. Mr Wadham submits that while the FTT appears to have partially addressed this in respect of driving in paragraph 9 of the Statement of Reasons, it acknowledged VS had not informed DVLA of her difficulties. The FTT did not address why VS had done so, in a context where there might be a range of reasons for this. In those circumstances, Mr Wadham argues that the FTT has not provided adequate reasons for this part of their decision about mobility activity 1.

Mr Wadham submits that the FTT has not provided adequate reasons for its findings in relation to both activities 9 and mobility activity 1. He argues the FTT failed to discharge its inquisitorial duty by exploring the evidence in more detail and had it done so, this might have produced a different outcome for both the activities and could have led to an award of at least one component of PIP. Mr Wadham therefore argues the errors of law were material.

In response, Mr Khan thanks the Secretary of State for supporting VS’s appeal on daily living activity 9 and mobility activity 1. Mr Khan raises additional matters and invites the Upper Tribunal to consider whether to issue guidance on these for the next FTT dealing with this appeal.

Activity 7: communication: Mr Khan argues that although the FTT decided VS could cope with communication as she managed to do so during the hearing, the FTT did not know how much VS understood or retained afterwards. He argues that VS has been provided with a voice recorder as a memory aid to help remember oral communication. Mr Khan argues that the FTT failed to address his argument that this could constitute a communication aid for helping VS to speak and / or hear verbal communication to an acceptable standard.

Mr Khan also argues that VS had been provided with noise cancelling headphones for speaking or hearing in surroundings involving background noise. Mr Khan submits this is supported by the reference to difficulties processing information and making contemporaneous notes (page 111 of bundle) and difficulties concentrating on what is said with background noise (page 23 of appeal bundle).

Mr Khan submits that a person assessed as requiring the types of aids VS has been provided with, should be entitled to descriptor 7.b for requiring aids to hear oral communication to an acceptable standard.

Activity 20: making budgeting decisions: Mr Khan refers to a range of evidence in the appeal that he considers indicates the FTT made an error of law in relation to budgeting decisions.

Mobility activity 1: Mr Khan argues that VS uses visual cues along the route of journeys to manage following the route. He argues that VS is not able to use these cues at night, especially on longer and unfamiliar journeys. Mr Khan submits the FTT failed to consider how VS would manage journeys during the winter months when it can be dark in the afternoon. He argues the FTT should have taken evidence from VS about how she managed journeys on those days, and what kinds of journeys she would take (e.g., potentially shorter ones or familiar ones). Mr Khan argues the FTT made an incorrect finding of fact in paragraph 7 of its Statement of Reasons by stating the ability to follow a Satnav is not impeded by darkness. He argues this is not correct for people who have dyslexia and cites an extract from Google that he considers supports his position.

Neither party requested an oral hearing of VS’s appeal. I decided an oral hearing is not required. The parties agree the FTT made material errors of law in relation to the appeal grounds on which I gave VS permission to appeal. Listing a hearing of her appeal before the Upper Tribunal would simply add delay in reaching a position where those appeal grounds are already agreed. I decided it was proportionate to determine the appeal on the papers.

At the permission stage, I only needed to be persuaded that it was arguable with a realistic (as opposed to fanciful) prospect of success that the FTT had made an error of law in a way that was material.

At this substantive stage, I need to be satisfied on the balance of probabilities that the FTT did make an error or errors of law that were material.

I am satisfied, on the balance of probabilities, that the FTT made material errors of law in relation to the appeal grounds addressed by Mr Wadham at paragraphs 9 to 16 above (and in more detail in his submissions dated 25 June 2025).

Mr Khan invites me to give guidance on the matters set out at paragraphs 18 to 22. I have decided that it is not appropriate to do so. The matters relating to activity 7 (communication) require a First-tier Tribunal to hear evidence from VS and apply its medical and disability expertise and to decide whether the aids Mr Khan has identified constituted a communication aid for VS in relation to activity 7. The next FTT will have to carry out this process and reach a reasoned conclusion for its decision.

In relation to PIP daily living activity 10 (making budgeting decisions), Mr Khan did not seek permission to appeal regarding that activity, and the Secretary of State has not been given the opportunity to comment on it. Mr Khan’s argument is that the FTT failed to address the evidence adequately and provide a reasoned explanation for its decision about activity 10. It is not fair to the Secretary of State for me to consider this ground in terms of whether there was an error of law. It is disproportionate for me to refer it back to the Secretary of State for comment when the parties already agree the FTT made material errors of law. In any event, this matter will be subsumed into the next Tribunal’s consideration of VS’s appeal.

In relation to the argument about mobility activity 1, this particular point is a new argument, not raised specifically in the UT1 application form. I do not consider it fair to the Secretary of State for me to address it, in circumstances where the Secretary of State has not previously had the opportunity to comment on it. In any event, it seems to me that this argument should properly be made to the FTT. The FTT is the primary tribunal of fact, with specialist members who can assess whether VS’s specific medical conditions and their effects on her, translate into a need for accompaniment at times when she is driving in the dark.

I therefore decline to address further the matters Mr Khan has raised summarised at paragraphs 18 to 22 above.

I have decided the FTT’s decision involved material errors of law. I have decided to use my discretion to set aside the FTT’s decision dated 28 October 2024. I do so, using the legal power in section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Section 12 of the 2007 Act requires me either to remit (send back) the case to the First-tier Tribunal to decide afresh, or to decide the case myself.

Neither party has specifically asked me to remake the decision. In any event, this is an appeal were further facts need to be found, and the FTT is best positioned to make them given it will include the expertise from a medically qualified member and a disability qualified member. The First-tier Tribunal, with its medical and disability expertise, is better placed than an Upper Tribunal Judge to evaluate all the evidence and to make appropriate findings of fact.

I therefore remit VS’s appeal to be reheard before a new First-tier Tribunal. It will make a fresh decision about whether she should be entitled to PIP.

Although I have set aside the FTT’s decision dated 28 October 2024, I am not making any findings, or expressing any view, about whether VS should be entitled to PIP. The next First-tier Tribunal will need to hear evidence, make its own findings of fact, and provide its reasoning for the decision it reaches.