MH v Secretary of State for Work and Pensions

I am satisfied on the arguments before me that that the First-Tier Tribunal (“the FTT”) erred materially in law in the decision to which it came on 7 April 2025 and that the decision should be set aside as a result.

The first ground of appeal argues that the FTT failed to follow R(M)1/96 in not explaining why it was not renewing the previous award of the standard rate of the daily living component of PIP. R(M)1/96 has been applied and reaffirmed in the context of PIP: see for example PM v Secretary of State for Work and Pensions (PIP): [2017] UKUT 37 (AAC). The second ground of appeal argues that the FTT’s findings and reasoning under daily living activity 1 were insufficient and inadequate.

In my judgment the two grounds of appeal come down to the same point, namely whether the FTT did enough to explain why it was not (re)awarding the appellant the particular 2 points she had previously been awarded under PIP daily living activity 1.

The relevant findings of fact and reasons of the FTT (on daily living activity 1) read as follows:

“Factual findings

……

19.The 2024 PIP HP made the following findings concerning [the appellant]:

a.

Anxiety diagnosed 2010. Depression diagnosed 2012. Obsessive compulsive disorder (OCD) diagnosed 1990. Gender dysphoria diagnosed 2018 by a psychologist. Reviewed by GP as needed for medication. She has contact with the crisis team every 3-4 months when she feels she is really struggling with her mental health. She has previously been under a community mental health team, last time was 2020. She was referred to a gender identity clinic and saw them for the first time in January 2024; they have advised to continue on current medication. She will have a follow up appointment and is on a waiting list. Symptoms include feeling unhappy about the way she looks, low mood, anxiety, feeling lonely, paranoid thoughts, isolating herself and cleaning and organising daily. Symptoms are present daily.

b.

Her condition has been the same in the last 12 months. She previously took Citalopram 30mg daily. Now prescribed Mirtazapine 30mg daily (started this around 2020),Finasteride 5mg daily, Progynova 2mg, twice daily, Spironolactone 100mg daily for gender dysphoria. Medication is partially effective. Side effects include tiredness and weakness. No hospital admissions in the last 12 months. She has previous suicidal thoughts and history of self-harm, but not since 2020. She reports she is currently safe; can speak to her partner and best friend when she requires support. Asthma is well managed with inhalers. She has no issues with walking 200 metres or more, she takes her time walking and her asthma is well controlled.

c.

Lives in a flat alone, can access all areas with no aids or adaptations in the home. She has stairs in her property and can manage these independently with no issues. She is able to get in and out of the bath unaided and can wash all areas of her body and hair independently. She reports no restrictions getting on/off the toilet. She can manage her personal hygiene, and she is able to physically dress herself. She can manage buttons, zips and fastenings. She can dress in weather appropriate clothing. There is not a standing restriction. She can open packaging, has no issues with grip and is able to put food in a microwave to heat it independently. She will eat without constant prompting. No prescribed supplements taken or dietician input. She can hold regular cutlery, cut, chew and swallow food independently. She has no restrictions within the scope of daily living activities 1 to 8.

d.

She studied logistics and business at university, completed the course and got her degree. She is currently unemployed. She hasn't worked for a few years due to her depression and poor mental health. During the HP assessment by telephone. She was polite and pleasant and was able to verbally communicate well. She showed good insight into her conditions and was forthcoming with information. She was able to understand and answer all questions put to her independently and didn't have a companion with her during the call. No evidence of anxiety during the call. Speech was normal in rate and tone. No evidence of cognitive, intellectual or memory impairment.

e.

[The appellant] is prescribed a moderate dose of mirtazapine. She has crisis team input every 3 months and has been seen by the gender identity clinic recently. She was able to engage over the phone for the assessment independently, she will not initiate any face-to-face engagement with unfamiliar people, due to previous experience of trans phobic comments and verbal abuse. This causes her anxiety and considering this it is likely she requires prompting from a close friend or partner to support her with this and 9b is likely. She also spends impulsively, has anxiety managing bills and requires support from a mental health and money worker to assist her in managing and budgeting her finances. She has acquired debts and without this support cannot manage on her own. It is likely that dyslexia is not causing significant functional restriction.

f.

Although reporting lack of motivation and low mood in activities, she has remained on the same dose of prescribed medication, has no regular GP input and no significant input for her mental health. The gender identity clinic provided no further input or referrals for any other support, and she reports no hospital admissions in the last 12 months. She has no prescribed supplements and no dietician input. She has no conditions affecting upper or lower limbs or grip. Observations support good cognition, memory, and intellect. She was able to verbally communicate well. Asthma symptoms are only on exacerbation and are well controlled and managed on prescribed inhalers. The appellant has no conditions affecting lower limbs.

20.The UC HP reported [the appellant] has a support worker, the GP arranged this in 2019. They work for the mental health money adviser service and support her with all finances.

It is clear that the appellant’s case before the FTT had been, at least in relation to the daily living components, that there had been no change and no improvement in her condition since the previous award of PIP: see the renewal claim form at page 181 and onwards and her appeal at Addition A, Page 1. Moreover, the FTT was aware that this was her case: see paragraph 18 read with paragraphs 23 and 28 of its reasons.

In terms of change from the previous PIP award (as the FTT found it for the better in relation to daily living), the FTT did not (re)award the appellant the 2 points under daily living activity 1 and the 1 point under daily living activity 3. The previous award under daily living activity 1 had been on the basis of the appellant needing prompting to be able to prepare of cook a simple meal: see page 152 of the FTT bundle. The appellant’s case before the FTT was that her mental health still affected her such that she still needed (on her case as a minimum) prompting to be able to ‘cook’: see paragraphs 23-24 of the FTT’s reasons.

In my judgment the FTT’s reasons and fact-finding failed to adequately grapple with the particular case the appellant was making to it on why she could not ‘cook’ on her own, and thus failed to explain why the previous 1d award was no longer merited. The FTT’s stated “Factual Findings” in paragraph 19 of its reasons are no more than a narrative description of the 2024 PIP HP evidence before the FTT. They are not, or at least are not stated to be, the findings of the FTT. This narrative description continues in paragraphs 21-29 of the FTT’s reasons under daily living activity 1. The FTT’s actual reasons on daily living activity 1 are therefore really confined to paragraph 30 of its reasons, but that reasoning does not provide a sufficient explanation for why the appellant no longer needed prompting to ‘cook’. The fact, per the 2024 PIP HP report, that the appellant had remained on the same dose or medication (which that report found was only partially effective – see paragraph 4.5 of the Secretary of State’s submission below) and continued to report lack of motivation and low mood in activities, is not an obvious evidential basis for her no longer needing to be prompted to ‘cook’. Moreover, if the FTT instead is to be taken as adopting the 2024 PIP report’s findings as the FTT’s findings of fact, the finding that the appellant did not need constant prompting to eat (para. 19c of the reasons) on the face of it was evidence that she needed some prompting to eat and may, if it had been explored by the FTT, also have shown a need for prompting to prepare the food which the appellant may have then needed some prompting to eat.

This issue is further explored in the Secretary of State’s submission to the Upper Tribunal in support of the appeal, dated 22 December 2025. I agree with that submission and do not need to add to it. The submission reads materially as follows:

“4.1

UT Judge Wright has granted the claimant permission to appeal on the grounds that it is arguable whether the FtT did enough to explain why it was not (re)awarding the claimant the 2 points they had been previously awarded under daily living activity 1.

4.2

The claimant had previously been awarded by the FtT the standard rate of the daily living component of PIP, including 2 points for daily living descriptor 1d - Needs prompting to be able to either prepare or cook a simple meal. At the award review the claimant confirmed that there had been no change or improvement to their ability to prepare or cook a simple meal [page 181 of the FtT bundle].

4.3

In its findings of fact for daily living activity 1, the FtT state, at paragraph 19c of the SOR:

“…She can open packaging, has no issue with grip and is able to put food in the microwave.”

4.4

There is no reference in paragraph 19c as to whether the FtT made findings of fact with respect to the claimant’s mental health and daily living activity 1. While the FtT do make findings regarding the claimant’s mental health in the earlier paragraphs 19a and 19b, given that reference to daily living activity 1 is only mentioned in paragraph 19c, it is my submission that the claimant may find it difficult to understand how the FtT’s findings with respect to their mental health related to the FtT’s decision to award no points for daily living activity 1.

4.5

Notwithstanding paragraph 29 of the Statement of Reasons (SOR) states that the claimant has remained on the same dose of prescribed medication for depression and has had no significant input for their mental health, which could be considered findings of fact, these must be read alongside paragraphs 19a and 19b, where the FtT acknowledges that the claimant’s mental health symptoms are present daily and that medication is only partially effective. In this context, I submit it was important for the FtT to provide a clear explanation as to why the claimant’s ongoing mental health difficulties and unchanged medication did not affect their ability to perform daily living activity 1.

4.6

In light of the above, it is my submission that the FtT erred in law in its failure to make adequate findings of facts and provide adequate reasons for its decision. It was imperative that adequate reasons were provided, given that the claimant, as noted in paragraph 4.2 above, had been previously awarded daily living descriptor 1d and had reported no changes to their circumstances…..

4.7

The decision of R(M)1/96 places a duty on tribunals to make the reasons for its decision understandable, particularly where the claimant states that their condition is no better than when they qualified for the benefit. In this case, the FtT refer to the previous award of the daily living component at paragraph 18 and then again at paragraph 28 but fail for the reasons noted in paragraphs 4.4 and 4.5 above to adequately explain why it chose to not award the daily living component of PIP, in particular points for daily living activity 1.

4.8

In view of the above, I am in agreement with UT Judge Wright that the inadequacy of reasons makes it difficult for a claimant to know whether the FtT applied the correct legal tests in assessing the evidence, making its findings of fact, and arriving at its decision……

4.9

If the UT Judge accepts my submission that the FtT has erred in law on points identified earlier in this submission, then I respectfully request that the appeal be remitted to a different first-tier tribunal for further fact finding.

4.10

For completeness the UT Judge will wish to know that the claimant has not made any further claims to PIP.”

For the reasons set out above, the appeal succeeds. The Upper Tribunal is not able to re-decide the first instance appeal. That 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 her 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.