CH v Secretary of State for Work and Pensions

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

"Having considered the appeal bundle to page 256 plus additions A-D plus representative's submission and the requirements of rules 2 and 31 of The Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 the Tribunal is satisfied that reasonable steps were taken to notify [C. H.] of the hearing and that it is in the interests of justice to proceed today.”

Upon reading the reading the SOR it is clear that the FtT have failed to consider point b. Although, the FtT have mentioned it in the DN, they have failed to explainwhy they found it was in the interests of justice to proceed with the hearing.

‘A failure to explain expressly (or impliedly) why discretion was exercised in a particular way may, therefore, involve an error of law. This would leave the tribunal’s reasons open to attack for inadequacy. A bald statement that ‘the tribunal have considered the overriding objective in deciding to proceed on the papers’ is unlikely to be enough if there were clear and obvious factors which pointed the other way. The tribunal would then need to do more to show how it balanced the factors in deciding to go ahead.’

Applying this case law to the case at hand, there is little in the way of an explanation within the DN or the SOR as to why the FtT believed it was in the interests of justice to proceed in the absence of the claimant. Whilst rules 2 and 31 are mentioned, I submit the reasoning provided is insufficient.

Overall, the FtT were required to bear in mind throughout the appeal hearing, whether or not an adjournment was necessary in order for the FtT to fulfil its investigative and inquisitorial role. As it is not evident that the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 were adequately considered in this case, or clear why discretion was exercised in a particular way, I respectfully submit that the FtT have erred in law on this ground.

Moving to the second ground of appeal detailed by the claimant’s representative concerning daily living activity 1- (Preparing food), the FtT concluded from the evidence before them that the claimant scored 2 points for descriptor 1(b) – (Needs to use an aid or appliance to be able to either prepare or cook a simple meal) and provided the following reasons at paragraph 14 of the SOR:

“14.

Activity 1, preparing food: [Claimant] was awarded 2 points for needing aids to prepare a simple meal for one person. Prompting to prepare a meal carries the same points as aids and so would not affect the total scores as an appellant can only score once under each activity. The tribunal found that there was insufficient evidence to support that [claimant] required assistance to prepare a meal as she could make a sandwich and use a microwave indicating that, with the use of aids, [claimant] was not sufficiently limited physically, to require another to intervene.

The FtT when reaching their conclusions (repeated above) appear to have been somewhat limited in their findings with regards the claimant’s difficulties with undertaking daily living activity 1. The FtT seem to be of the opinion that as the claimant can make a sandwich and use a microwave, this demonstrates an ability to undertake the tasks related to being able to freshly prepare ingredients and cook a simple meal with the use of an aid. However, due to the limited reasoning provided (repeated above) it is unclear why the FtT reached this conclusion. Was it the case that the FtT simply accepted the previous scoring decision made by the DM when making their decision regarding this activity?

There is evidence within the appeal bundle that the claimant finds the process of freshly preparing ingredients and cooking for a simple meal difficult, I would note in the mandatory reconsideration (MR) request [p.243] the claimant’s representative reports that:

“I asked if she would make a warm cooked meal and she said she could not as she does not have the motivation to do that. Just thinking about the work involved in that feels too much of an effort for her to cope with and she would struggle with all the actions involved and timings. She would not be able to focus long enough if she started it and would get distracted and forget that she made a start on doing this…”

[Claimant] would meet Reg 7 as for the majority of the days she would not be able to prepare and cook a simple meal. She would not be able to do this safely as she forgets that she has put food on the cooker and has forgotten about it and has burnt the pans etc. this is dangerous as she lives alone. She would not be able to this to an acceptable standard, repeatedly or within a reasonable time period. [Claimant] does meet Reg 4(2A).

The FtT in reaching their conclusions (repeated above), appear to concentrate more on the claimant’s physical limitations when preparing and cooking a simple meal and have not made any findings concerning the impact and effects of her longstanding mental health difficulties may have when undertaking the activity. Moreover, the FtT have seemingly failed to engage with the claimant’s representative’s evidence (repeated above) regarding her reported difficulties undertaking the activity and whether she could do so safely.

It is therefore my submission that the FtT have materially erred in law, as they have failed to exercise their inquisitorial duty, to establish what difficulties the claimant has when preparing and cooking a simple meal and whether she needed assistance or supervision to undertake the activity in accordance the provisions of Regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 (the PIP Regs 2013). I submit that further findings are required concerning the claimant’s difficulties with preparing and cooking a simple meal.

Turning to the third ground of appeal identified by the claimant’s representative concerning daily living activity 2 – (Taking nutrition). The FtT found at paragraph 15 of the SOR that the claimant did not satisfy any of the point scoring descriptors within the activity, stating the following:

“15.

Activity 2, taking nutrition: [Claimant] claimed that she will only eat a small amount and only properly when visiting family. The submission states that [claimant] will eat junk food or grab a sandwich. The nutritional value of the food is not in issue for this activity and given that [claimant] also told the HCP at assessment that she will eat daily the tribunal were satisfied that on the majority of days [claimant] would take nutrition without aid or assistance.”

The FtT in reaching their conclusions (repeated above) appear to have accepted that the claimant “…will only eat a small amount and only properly when visiting family.” Whilst it istrue that the nutritional value of food is not considered, the FtT do not appear to consider whether the claimant only eating small amounts food or only eating properly when visiting her family, was due to her mental health difficulties and a lack of motivation.

This is particularly pertinent, as the claimant’s representative when requesting a MR of the decision under appeal [p.244] reports that the claimant “…lacks the motivation…and has lost weight… She does not have anyone to encourage her…” However, the FtT do not comment upon this evidence when concluding “…that on the majority of days [claimant] would take nutrition without aid or assistance.” It is unclear given the somewhat limited reasoning provided by the FtT in the SOR if any consideration was given to whether the claimant might benefit from prompting, given her enduring her mental health difficulties in order to take nutrition in accordance with the provisions of Regulation 4(2A) of the PIP Regs 2013. It my submission that further findings are required in order to determine the if the claimant would satisfy any of the point scoring descriptors within daily living activity 2.

Turning to the fourth ground of appeal detailed by the claimant’s representative concerning daily living activity 3 – (Managing therapy or monitoring a health condition), the FtT concluded from the evidence before them that the claimant did not satisfy any of the point scoring descriptors within the activity, providing the following reasoning at paragraph 16 of the SOR:

“16.

Activity 3, managing treatments: [claimant] made no claim under this activity, the submission is vague as to the frequency of any missed doses and the activity was not covered by the HCP. The tribunal had insufficient evidence to find that on the majority of days [claimant] could not manage her medication.”

The FtT concluded that the claimant’s representative submissions were vague concerning the frequency of any missed doses of her medication and they “…had insufficient evidence to find that on the majority of days [claimant] could not manage her medication.” If the FtT felt they did not have sufficient information to determine if the claimant would satisfy any of the point scoring descriptors within daily living activity 3, then as noted at paragraphs 4.6 to 4.12 of my submission the FtT ought have given consideration as to whether an adjournment of the appeal hearing was necessary in order to fulfil their inquisitorial role. However, it is unclear upon reading the SOR if any such considerations were undertaken by the FtT, as such I submit the FtT has erred in law on this matter, and further findings are required concerning the claimant difficulties with daily living activity 3.

Moving to the fifth ground of appeal detailed by the claimant’s representative regarding daily living activity 4 – (Washing and bathing), when reading paragraph 17 of the SOR the FtT appear to have focused their findings on the claimant’s physical difficulties with washing and bathing. The claimant when lodging her appeal with HMCTS states that she struggles to wash and bathe and it is noteworthy that the HP records within the consultation report dated 13/11/2023 [p.190] the claimant evidence that she experiences symptoms low mood and motivation, lethargy, and self-neglect due to her longstanding mental health difficulties.

Although, the FtT note that the claimant “…will bathe once per week and sink wash on the rest of the days…” It is unclear what the claimant’s sink wash involves, for example is she simply washing her face? It my submission that the FtT have not utilised their inquisitorial duty to make findings as to whether the claimant’s mental health difficulties impact her ability to wash and bathe on the majority of days in accordance with the provisions detailed within Regulation 4(2A) and 7 of the PIP Regs 2013, and as a result further findings are required concerning the claimant’s difficulties when undertaking the activity.

Turning to sixth ground of appeal outlined by the claimant’s representative concerning daily living activity 9 – (Engaging with other people face to face), the FtT concluded from the evidence before them that the claimant did not satisfy any of the point scoring descriptors within the activity noting at paragraph 22 of the SOR that:

“…The Tribunal preferred the evidence recorded by the HCP as the tribunal found the comments too specific to be incorrect. [Claimant] is recorded as saying that she has attended coffee mornings and support groups and made friends who have gone on to go on walks together. This is clear positive evidence of the ability to form new relationships.”

The FtT in reaching their conclusions(repeated above) have relied upon the evidence within the HP consultation report dated 13/11/2023 [pp.189-211]. However, it is noteworthy the FtT in reaching their decision have not addressed or commented upon the claimant’s evidence within the PIP2 questionnaire form dated 05/06/2023 [p.141] regarding her difficulties with engaging with other people face to face:

“I am so anxious that I will avoid people if I do not have support with me. I am starting therapy, after assessment to confirm PTSD, as I have severe problems with mixing. Due to my conditions, I will become loud and talk over people. This has upset close friends and family. I feel very panicked with people.”

I note that FtT briefly refer to the claimant’s representative’s written submissions to the FtT [Addition D pp.1-6], which state the following:

“[claimant] explains that she struggles around people. She informed us that she suffered verbal abuse from a neighbour. He used to constantly harass and terrorise her to the point she no longer felt safe in her home and had to move. Her confidence suffered greatly, and she now suffers from PTSD. She says she avoids people she does not know and even though is trying to work through her trauma by attending weekly coffee mornings, she avoids gong to them in end. She says she overthinks the situation and has sleepless nights and will have talked herself out of going. She says her confidence has hit rock bottom around people and within herself…[Claimant] says she will avoid social gatherings as it increases her anxiety.”

FtT in reaching their conclusions (repeated above) regarding the claimant’s difficulties with engaging with other people face to face have simply concluded that they “…preferred the evidence recorded by the HCP as the tribunal found the comments too specific to be incorrect. There appears to be inadequate analysis of the evidence by the FtT to support and explain their conclusions and preference for the evidence recorded by the HP in the consultation report.

This is particularly pertinent given that the evidence within in the PIP2 questionnaire form and the written submissions to the FtT by the claimant’s representative (repeated above) appear to be at odds with evidence recorded by the HP. It is my submission that the FtT have materially erred in law as, as they have failed to use their inquisitorial duty to address and assess the conflicting evidence concerning the claimant’s difficulties when engaging with other people face to face and as such further findings are required on this matter to determine whether she can undertake the activity in accordance with the provisions detailed within Regulation 4(2A) of the PIP Regs 2013.

Moving on to the seventh ground of appeal detailed by the claimant’s representative concerning mobility activity 1-(Planning and following journeys), the claimant in written submissions to the FtT has reported difficulties with undertaking unfamiliar journeys unaccompanied due to her longstanding mental health difficulties. The FtT concluded at paragraph 24 of the SOR, that based upon the evidence before them that they:

“…were not satisfied that [claimant] met the threshold of suffering overwhelming psychological distress as she goes out often. The HCP records that [claimant]s will go to the local shop twice per week, a local walk, visits her mother, attends the library,attends the job centre, attends appointments, and uses busses contradicting the level of anxiety experienced prior to and when following a route.”

Whilst I would agree that the threshold for overwhelming psychological distress (OPD) is a high one, the FtT when reaching their conclusions (repeated above) appear to have made their decision based upon what familiar journeys the claimant is able to undertake, rather than unfamiliar journeys and I note that some of the journeys are ones that she would make occasionally such as attending the Jobcentre. The FtT have not made any findings as to the claimant’s functional ability to follow the route of an unfamiliar journey unaccompanied, in accordance with the provisions detailed within Regulation 4(2A) of the PIP Regs 2013.

It is noteworthy, that the claimant’s representative in their written submissions to the FtT [Addition D p.5] reports the following concerning the claimant difficulties when following the route of an unfamiliar journey unaccompanied:

“[Claimant] informs us that she will avoid places that she does not know, She would need someone with her otherwise she would have to cancel the appointment…She describes feeling nervous and gets a physical upset stomach. [Claimant] always watches her surroundings and feels quite vulnerable, she can panic and feels quite suspicious of people. [Claimant] says she cannot plan a journey and tends to be taken. She does have a support worker that will attend with her to appointments too.

[Claimant] would meet descriptor 1D and score 10 points as she cannot follow the route of an unfamiliar journey without another person. She would be too anxious to leave her home and would not attend. She would meet Regulation 7 as she could not do this for the majority of the time. She could not reliably or safely get to an unfamiliar place without panicking and she could not get to an unfamiliar place to an acceptable standard, repeatedly or within a reasonable time period. 4(2A).

In light of the submissions from the claimant’s representative (repeated above), it was incumbent upon the FtT to exercise their inquisitorial duty to address and consider this evidence. This in turn would have allowed the FtT to determine whether or not the claimant needed to accompanied when following the route of an unfamiliar journey due to experiencing difficulties with her mental health. I submit that the FtT’s failure to make such findings on this matter amounts to a material error of law, as it is unclear if the claimant can follow the route of an unfamiliar journey unaccompanied in accordance with the provisions detailed within Regulation 4(2A) of the PIP Regs 2013 or whether the FtT had regard to the guidance provided in the UT decision MH v SSWP [2016] UKUT 0531 (AAC) (“MH v SSWP”) now a reported decision [2018] AACR 12.

Although, the FtT is entitled to give weighting to whatever evidence that they choose, where there is conflicting evidence they must in the first instance explore and consider it in a holistic manner and provide sufficient reasons explaining why they preferred the evidence that they had. In this appeal the FtT does not appear to have done that. There seems to be a distinct lack of evaluation of the claimant’s evidence detailed within the PIP questionnaire dated 05/06/2023 [pp.145-184], the mandatory reconsideration request dated 17/01/2024 [pp.243-245] and the written submissions of the claimant’s representative [Addition D pp.1-6]. 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, Irespectfully submit that the inadequacy of reasons makes it difficult for the claimant to know whether the FtT applied the correct legal tests in assessing the evidence, making their findings of fact, and arriving at their decision regarding their appeal. If the UT Judge accepts my submission that the FtT has 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.”