RB v The Secretary of State for Work and Pensions

RB made a claim for personal independence payment (PIP) on 24 November 2022. The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, asked RB to take part in a telephone medical assessment on 17 March 2023. Having received advice from that assessment, DWP decided to award RB no point-scoring descriptors for either daily living or mobility activities. DWP therefore refused RB’s claim.

RB appealed to the First-tier Tribunal on 09 July 2023. Her appeal was decided following a telephone hearing on 08 August 2024. The First-tier Tribunal (“FTT”) awarded RB descriptors 1.b (2 points), 2.b (2 points), 4.b (2 points) and 6.d (2 points) for daily living activities. The FTT awarded RB descriptor 2.b (4 points) for mobility activities. As a result, RB scored 8 points for daily living activities and 4 points for mobility activities. The FTT decided RB was entitled to an award of the daily living component of PIP at the standard rate from 24 November 2022 to 23 November 2026.

On 24 April 2025, the Upper Tribunal received RB’s request for permission to appeal against the FTT’s decision. RB had been refused permission to appeal by the First-tier Tribunal in a decision dated 19 February 2025.

There were some documents missing from RB’s application, and once these had been received, I admitted her application for consideration (which had been made late). On 25 September 2025, I granted RB permission to appeal against the FTT’s decision on the basis it was arguable the FTT had made one or more of the following errors of law.

Assessing RB’s ability to prepare food: the FTT decided RB reasonably required aids to prepare food. The FTT did not address in its Statement of Reasons how it had evaluated her ability to perform the individual actions within this activity. Nor did the FTT explain which aids it had in mind that RB could use. It was therefore unclear the FTT had applied the principles in paragraph 4 of JM v SSWP (PIP) [2017] UKUT 419 (AAC) when making its decision. The failure to explain which aids could be used also arguably applied to the FTT’s reasoning about RB’s ability to wash and bathe.

It was also arguable the FTT may have failed to evaluate whether RB could prepare food safely within the meaning of regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 (“the PIP regulations 2013”), as explained in RJ, GMcL and CS v SSWP (PIP) [2017] UKUT 0105 (AAC) (“RJ, GMcL”). It was unclear whether the FTT had addressed whether there was a real possibility that could not be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case.

Managing toilet needs: The hearing recording indicated the FTT did not ask RB about the process of getting on and off the toilet. RB had said in her mandatory reconsideration request (page 54 of FTT bundle) that she needed to hold onto something to do this. In addition, the FTT Judge had said the following during the hearing. It might have steered RB away from thinking she could talk about how she managed getting on and off the toilet:

“I’m afraid that when looking at points for toileting, we have to imagine you are already in the toilet. We have to disregard getting to the toilet. I appreciate it might sound a bit counterintuitive”.

Dressing and undressing: in the hearing, RB described using a pull-on bra only and not wearing any clothing using buttons. The difficulty with buttons would relate to the top half of RB’s body as well as the bottom half. It was arguable that when explaining its decision, the FTT had only addressed how RB would dress and undress the lower half of her body.

Moving around: The FTT may have failed to address the evidence in the appeal, including that RB described pain all the time and from the moment she began to walk, and RB’s evidence about how long it took her to walk. RB had also referred the FTT to the decision in PS v SSWP (PIP) [2016] UKUT 326 (AAC). During the hearing, the FTT Judge had said:

“I saw your submissions and the reference you made to Judge Markus’s decision, but when we are looking at this, we are not looking at how far you can walk pain-free, what we’re trying to establish really is the limit of your walking ability, the point at which you need to stop, because, as the law says, of significant discomfort or exhaustion. So, it’s something, the threshold is quite high. I appreciate you are in pain while walking but we are still interested in how far you walk and how fast you walk, because the fact there’s pain isn’t the end of the story, I’m afraid, that’s just one of the elements we need to think about.”

It was not clear from the FTT’s Statement of Reasons that it had applied the principles set out in PS. Furthermore, in referring to the relevance of a person needing to stop walking due to significant discomfort or exhaustion, it was possible the FTT Judge had in mind Upper Tribunal Judge Markus’ decision in GL v SSWP (ESA) [2015] UKUT 0503 (AAC). That decision addressed the test for mobilising under the work capability assessment applying to a different benefit (employment and support allowance). If the FTT had the test in GL in mind, it may have misdirected itself in law.

I also decided there was an issue of possible wider significance that merited giving RB permission to appeal. This was that towards the end of the hearing, the FTT Judge said:

“I really have just a couple of comments, one is to say that the threshold for PIP and for scoring points for any of these activities are set quite high when you look at the scheme as a whole, you can see that.

One example is that when you look at the ability to feed yourself, kind of, you know, eating food, we have been talking about cutlery, which if you need to use adapted cutlery, might well mean you get 2 points. You also get 2 points if you had to be fed through a tube, so that gives you some idea, it’s a bit stricter than it might look.”

It was arguable that one way in which these statements could be interpreted was that the FTT considered it should apply a different (and more stringent) test of whether a person satisfied descriptor 2.b, based the level of points scored in other descriptors for the same activity. I considered it was arguable the FTT might have made an error of law if it used this reasoning to apply a different standard to what descriptor 2.b comprised, rather than applying the plain meaning of the descriptor (informed by any statutory definitions of wording and case law).

I explained it was not clear that when providing for the tests in Schedule 1 to the PIP regulations 2013, Parliament intended the test set out in one descriptor should be given a different meaning to its plain meaning, based on the level of points awarded by another descriptor for the same PIP activity (or even for another PIP activity). I observed I was not aware of any existing Upper Tribunal case law providing guidance on this matter and therefore considered it appropriate to give permission in relation to it.

Mrs Hawley is the Secretary of State’s representative in these proceedings. She supports the appeal to the Upper Tribunal in a helpful written submission dated 14 November 2025.

Mrs Hawley invites the Upper Tribunal to set aside the FTT’s decision dated 08 August 2024 for containing material errors of law, for the reasons set out below.

Preparing food and washing and bathing: Mrs Hawley submits the FTT failed to make sufficient findings of fact and reasons in relation to these activities. Mrs Hawley submits the FTT’s reasoning about these activities at paragraphs 20 to 21 and 29 to 30 of its Statement of Reasoning is narrow and contradictory. Mrs Hawley submits that regarding preparing food, the FTT appears to have assumed that RB would have sufficient grip and be able, despite pain, to use an aid for chopping vegetables.

Mrs Hawley highlights that in her mandatory reconsideration request (Addition F of FTT bundle), RB referred to considerable pain when cutting or chopping, and that she had burned herself countless times trying to cook food. RB had also provided the FTT with a written submission dated 08 June 2024 (Addition I of FTT bundle), which described difficulties with the knife slipping when chopping due to pain starting straight away in both her knuckles and her palm when she held it. RB also described that lifting items out of the cooker and microwave caused her pain in her hands, leading to dropping things and burning herself.

Mrs Hawley observes that the definition of “cook” in Schedule 1 to the PIP regulations 2013 means heating food at or above waist height and “prepare” in the context of food, means make food ready for cooking or eating. She submits this includes the ability to open packaging, peel and chop, serve food onto a plate and use a microwave oven or cooker hob to cook or heat food.

Mrs Hawley submits that the FTT appeared to concentrate on RB’s ability to chop vegetables by using some type of chopping aid, without considering whether she could do so given the pain in her hands or would have sufficient grip and power to do so. Mrs Hawley submits it is also unclear whether the FTT considered RB’s ability to undertake the other aspects of making food ready for cooking (described at paragraph 18 above) and whether there are aids that would assist RB in overcoming her stated limitations.

Mrs Hawley also submits it is unclear whether the FTT considered whether RB might reasonably require assistance when preparing food and thereby narrowed its assessment of whether she could prepare food in accordance with regulation 4(2A) of the PIP regulations 2013. She refers specifically to whether RB could carry out the activity safely, within the meaning and application of RJ, GMcL

In relation to washing and bathing, Mrs Hawley submits the FTT appears to conclude that RB could use aids to get in and out of an unadapted bath but did not set out what aids might be helpful. Mrs Hawley observes this may be based on RB having explained to the FTT at the hearing that she had a rail put on the bathroom wall to help get in and out of the bath.

Mrs Hawley observes, however, that RB went on to explain she did not feel safe getting in and out of the bath and only bathed twice a week. RB also told the FTT she had slipped in the bathroom and sustained a black eye. The FTT may have thought a rail would assist RB, but it was unclear what other aids it thought would help her. Mrs Hawley submits this is particularly relevant given the FTT acknowledged at paragraph 29 of its Statement of Reasons that RB has difficulties with her grip and would be navigating a wet surface area. Mrs Hawley argues further factual findings are needed about the nature of RB’s difficulties getting int and out of an unadapted bath.

Managing toilet needs: Mrs Hawley submits the FTT has made limited factual findings about RB’s continence needs and her abilities to get onto and off the toilet. Mrs Hawley describes the FTT’s reasoning at paragraphs 32 to 33 of its Statement of Reasons as limited and contradictory, and that it focused on RB’s mobility difficulties getting to and from the toilet. Mrs Hawley highlights that RB described wearing incontinence pads all day and needing something to pull her up off the toilet (page 53 of FTT bundle) and that she told the FTT at the hearing that she has a weak bladder.

Mrs Hawley submits that given this evidence, the FTT should have used its inquisitorial duty to obtain further evidence from RB during the appeal hearing about her bladder difficulties and why she needed to use something to pull herself up from the toilet. The FTT has also not explained how it concluded that RB did not have a bladder condition.

Dressing and undressing: Mrs Hawley argues there is a lack of fact finding by the FTT when it concludes at paragraphs 35 to 36 of its Statement of Reasons that RB only needed help to dress the lower part of her body. Mrs Hawley submits the FTT appears only to have considered the difficulties RB described with her lower body. However, RB also described wearing a pull-on bra and not using clothing with buttons, possibly due to pain and swelling in her hands. However, the FTT did not use its inquisitorial duty to establish what difficulties RB experienced in dressing and undressing her upper body, including considering regulation 4(2A) of the PIP regulations 2013.

Moving around: Mrs Hawley submits the FTT made material errors of law in the way described at paragraphs 9 to 10 above. She submits it is unclear whether the FTT considered the principles set out in PS, and may instead have applied the decision in GL, which amounts to a misdirection in law. Mrs Hawley submits this is supported by what the FTT Judge said to RB during the hearing about having to establish the limit of her walking ability based on the point at which she needed to stop due to significant discomfort or exhaustion. This related to the test in GL, which was about mobilising under the work capability assessment. It is a different test to PIP. Mrs Hawley submits the FTT appears to have failed to adequately address the issue of RB’s significant foot pain and the pain and discomfort in her left ankle when mobilising.

Mrs Hawley submits more generally that the FTT appears to have failed to evaluate the impact of RB’s various medical conditions and her evidence about the difficulties she experiences undertaking the various PIP activities. Mrs Hawley submits the FTT failed to provide adequate reasons as to why evidence in parts was not accepted when deciding which points to award to RB.

The issue of possible wider significance: Mrs Hawley observes that what the FTT Judge was recorded saying during the hearing about taking nutrition (paragraph 11 above) could be taken to suggest the FTT believed a greater level of disability is required to score points for this activity than is indicated by the wording of the descriptor itself.

Mrs Hawley submits, however, that any misdirection (or implied misdirection) in law by the FTT did not result in an error of law in this particular appeal. This is because RB told the FTT she needed to use adapted cutlery to be able to take nutrition and the FTT accepted that she reasonably required it. Mrs Hawley suggests that this particular appeal therefore does not need to grapple with the point I have raised and does not require any wider guidance.

Finally, Mrs Hawley advises that RB reported a change in her circumstances to DWP on 11 November 2024. This led to the Secretary of State superseding the FTT’s decision awarding RB the daily living component at the standard rate, with effect from 11 November 2024. The Secretary of State has awarded RB daily living descriptors 1.b (2 points), 2.b (2 points), 4.b (2 points), 5.b (2 points) and 6.b (2 points) – a total of 10 points and mobility descriptor 2.e (12 points). RB has therefore been awarded the standard rate of the daily living component and the enhanced rate of the mobility component from 11 November 2024 to 05 September 2027.

RB provided a response dated 07 December 2025 confirming she has no further submissions to make and does not want an oral hearing.

Neither party requested an oral hearing of the appeal. I took these preferences into account and considered the appeal file. I decided the interests of justice did not require an oral hearing. The parties agree there were material errors of law by the FTT. I therefore determined the appeal on the papers. It was proportionate to do so.

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 Mrs Hawley at paragraphs 16 to 27 above and dealt with in more detail by her submission dated 14 November 2025.

I also agree with Mrs Hawley’s observations about the issue of potential wider legal importance described at paragraphs 11 to 13 above. It should be addressed in a case where it is material to the appeal, which is not the position here.

Having decided the FTT’s decision involved material errors of law, it is appropriate to exercise my discretion to set aside the Tribunal’s decision dated 08 August 2024 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act provides that I must either remit the case to the First-tier Tribunal with directions for their reconsideration or remake the decision.

Neither party asked me to remake the FTT’s decision. In any event, it is necessary for further facts to be found. The First-tier Tribunal is best placed to evaluate the evidence, including using its medical and disability expertise, and to make appropriate findings of fact.

I therefore remit RB’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about whether she should be entitled to PIP from 24 November 2022 through to, and including, 04 September 2027.

Although I have set aside the FTT’s decision dated 08 August 2024, I am not making any findings, or expressing any view, about whether RB should be entitled to PIP. The next tribunal will need to hear evidence, make its own findings of fact and provide its reasoning for the decision it reaches.