JD v The Secretary of State for Work and Pensions

These directions may be supplemented or changed by a District Tribunal Judge (DTJ) giving listing and case management directions.

The case will be listed as an oral hearing in front of a freshly constituted tribunal. The appellant is advised to attend.

The new panel will make its own findings and decision on all relevant descriptors.

I thank Ms Razzaq for the background to this appeal, from which this introduction is substantially taken.

Since it concerns a claim for a Personal Independence Payment my references, unless otherwise stated, are to the Social Security (Personal Independence Payment) Regulations 2013.

A Personal Independence Payment (PIP) award was made to the appellant on 23/10/2023. It was the standard rate of both components and was made until 1/10/2026. On 19/6/2024 that decision was superseded. This was said to be because of a change of circumstances that occurred on 23/4/2024. No change was made to the level of the award, but it was extended until 19/6/2024.

The claimant requested a Mandatory Reconsideration of the above decision and on reviewing the available evidence, the DM decided that the decision remained unchanged. The claimant lodged an appeal against the decision.

The appeal was before a Tribunal on 10/1/2025. It was listed as a paper hearing in circumstances where there had been no objection from the appellant to such a hearing, but neither had there been positive consent. It was determined as such. The appeal was refused. In the Statement of Reasons there was no reference to any inquiry into whether a paper hearing was just and fair; neither was there an explanation of the change of circumstance that might have warranted the supersession decision.

The appellant sought permission to appeal to the Upper Tribunal, having had an initial application to the FtT refused.

The matter came before Upper Tribunal Judge Butler.

She dealt with the matter on the papers in the appellants favour, having explained why she was able to, and was, going to decide it without an oral hearing. She granted permission to appeal for the reasons below, and made Directions for the filing of submissions by the parties.

The Upper Tribunal has confirmed in DT v SSWP (UC) [2019] UKUT 268 (AAC) and in MM v SSWP (ESA) [2011] UKUT 334 (AAC) that a tribunal must acknowledge explicitly that it has considered both whether the parties have consented to a decision being made without a hearing and that it can fairly decide the appeal without holding one, and to explain why.

At paragraph 8 of the Statement of Reasons, the FTT referred to your appeal being listed for it to decide on the papers and therefore it went ahead without you present.

The FTT’s Statement of Reasons does not mention that the FTT considered the requirements in rules 2 and 27 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008. It does not explain why the FTT decided it was fair and just to decide your appeal without a hearing. The FTT’s Decision Notice dated 10 January 2025 does mention that the FTT considered rules 2 and 27 but does not explain why the FTT decided it was fair and just to decide your appeal on the papers. Overall, this may indicate an error of law by the FTT.

Explaining whether DWP had a valid basis to supersede (meaning change) your award: DWP changed your award by changing how long you were entitled to receive it for. This is called a supersession decision. In SC v SSWP (PIP) [2019] UKUT 165 (AAC), the Upper Tribunal identified that the steps a First-tier Tribunal should take the following steps when dealing with a DWP decision superseding (which means, changing) a PIP award include:

asking if there is a basis in law for DWP’s supersession decision (which means identifying the legal ground available to supersede the award); and

if so, ask whether DWP has provided adequate reasons (when addressing all the evidence available) to explain and sustain the decision.

Mr Razzaq on behalf of the Secretary of State has now filed a submission supporting the appeal for the reasons Judge Butler set out. He adds some detail to the points she makes. He does not require me to give reasons for my decision if I accept the tenor of his.

The appellant has not filed any response.

I am content to adopt the submissions of Mr Razzaq as providing the reasons for my decision that the FtT erred in their consideration of the issues relevant to whether the case should be heard on the basis of the papers alone, and for their failure to deal with the supersession issue.

I am directing that the case be listed as an oral hearing; however, if the appellant does not attend the new FtT must consider whether it is just and fair to proceed in accordance with the Tribunal Procedure Rules, and case law. In any event, it must address the issue of whether three were grounds for the Secretary of State to supersede the award, and, if so, what they were.

The appellant may, of course make any further points that he wishes to on all issues at the rehearing, or on paper prior to that.

For completeness, I also draw to the attention of the Tribunal the approach set out by Upper Tribunal Judge Hemingway in TR-v-SSWP (PIP) [2015] UKUT 0626 (AAC) which establishes that if a claimant is unable to perform an activity for part of a day that day counts towards that period provided that the inability to perform it affects them on that day to more than a trivial extent: in particular see [32-34].

Finally, I warn theappellant that the fact this appeal has succeeded here on an issue of law is not an indication that the rehearing will automatically be successful, because it is the new Tribunal that will consider the evidence and determine the outcome.