MD v Secretary of State for Work and Pensions

I am satisfied on the arguments before me that that the First-Tier Tribunal (“FTT”) erred in law in the decision to which it came on 15 July 2024 and that its decision should be set aside as a result.

The FTT allowed the appellant’s appeal to the extent of restoring his award of the standard rate of the mobility component of the Personal Independence Payment (“PIP”). In terms of the daily living component of PIP, the appellant’s case was that there had been no change in his needs since the award made by the previous FTT on 18 November 2020 (page 119), see pages 133-138 of the FTT bundle. It may be noteworthy that the previous FTT awarded the appellant two points each under daily living activities 5 (toileting) and 6 (dressing and undressing) but no points under daily living activity 8 (reading). On the basis that there had been no change in the appellant’s needs under these activities, the starting point for the FTT, on the appellant’s case, would seemingly have been to (re)award him two points each for toileting and dressing and 0 points for reading. That said, if the FTT erred in law in not awarding the appellant two points for both daily living activities 5 and 6, that would be a material error of law given the five daily living points the FTT found were merited.

In terms of the ground of appeal concerning daily living activity 6 and the appellant’s use of loose clothing, following PE v SSWP (PIP) [2015] UKKT 309 (AAC); [2016] AACR 10, in my judgement the FTT erred in law in failing to assess the appellant’s ability to dress and undress (and the time it would take him to do so) using ‘normal’ clothing.

As for the ground of appeal concerning daily living activity 5 and the appellant’s use of incontinence pads, in my judgment the FTT also erred in law in failing to focus on whether the appellant had a need to use such pads to avoid ‘accidents’ given his bowel issues, per KO v SSWP (PIP) [2018] UKUT 78 (AAC), and whether such a precautionary need amounted to the appellant using an aid to manage his toilet needs or incontinence: per BS v SSWP (PIP) [2016] UKUT 456 (AAC) and SSWP v NH (PIP) [2017] UKUT 258 (AAC).

Whether the ground of appeal concerning daily living activity 8 lacks merit for the reasons given in paragraph two above is no longer an issue, as the appeal is being allowed on the adequacy of the FTT’s approach to daily living activities 5 and 6. In any event, it is well arguable that the FTT adequately explained (e.g., in paragraph 11 of its reasons) why there was no longer any need for the appellant to be prompted to carry out any daily living activities. However, the issue of whether the appellant needed to use a magnifier under daily living activity 8 will be subsumed in the issues the new FTT may need to consider and determine.

The Secretary of State supports the appeal being allowed on the grounds on which I have allowed this appeal in a helpful submission to the Upper Tribunal dated 30 June 2025. The material parts of that submission, with which I agree, read as follows:

“4.2

To begin with the first ground of appeal, which concerns daily living activity 6- (Dressing and undressing), it is my submission that the FtT erred in law by failing to apply Regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013. I note that in paragraphs 4 and 22 of the SOR; the FtT found that the claimant suffers from COPD, is blind in the right eye, has bowel issues which result in accidents, and experiences stomach pains which require him to pace himself during activities. It further found that the claimant wears loose clothing. At paragraphs 38 to 42 of the SOR, the FtT found that the claimant could dress unaided on more than 50% of days and therefore made no award of a points scoring descriptor under daily living activity 6. At paragraph 40 of the SOR the FtT noted that the claimant wears loose clothing due to stomach pain and bowel issues but has said nothing more on this. The FtT found that he could dress without prompting. However, in the PIP2 questionnaire [page 30 of the FtT bundle], the claimant stated:

“…due to my depression I very rarely get changed. On most days I sleep on the sofa with my clothes and because I have no motivation. I wear loose clothing but when I need to use buttons, zips or laces my daughter helps dress me.”

4.3

Similarly, in the HP assessment report [page 58 of the FtT bundle], it is recorded that the claimant stated:

“he can struggle with getting dressed, says that he can get short of breath when dressing, says that he will be prompted to change his clothes, says that he will sleep in his clothes sometimes, says that he will not change them more than once a week, says that he is able to manage buttons and zips”.

4.4

These statements clearly indicate difficulty with the activity of dressing and undressing, which the FtT does not appear to engage with. The FtT should have exercised its inquisitorial duty to explore the nature of these difficulties more fully. In particular, it should have considered whether the claimant was only able to dress in certain types of clothing such as loose fitting due to pain, discomfort, or breathlessness. While the evidence referred to does not explicitly mention loose clothing, the FtT ought to have utilised its inquisitorial duty and explored whether the claimant wearing loose clothing was as a result of the aforementioned difficulties he experiences, and if so in such circumstances if he could be considered as wearing alternative clothing. In light of PE v SSWP (PIP) [2015] UKUT 309 (AAC) (“PE”), the FtT was required to engage with the use of alternative clothing as evidence of functional limitation. In PE, the UT held that a claimant’s choice of clothing is only relevant where it is dictated by a physical or mental condition. As stated at paragraph 13 of PE:

“13.

The only limitations on the claimant’s ability that are relevant are those that arise from a physical or mental condition. Again, section 78(1)(a) and (2)(a) so provide. It follows that a claimant’s choice of clothing is irrelevant unless it is dictated by their physical or mental condition.”

4.5

The FtT ought to have considered whether the claimant’s use of loose clothing was indicative of an underlying functional impairment with dressing and undressing, particularly in relation to wearing standard clothing. The FtT should have exercised its inquisitorial duty to explore whether this choice of clothing arose from a reasonable need due to pain and whether when wearing standard clothing, the claimant could dress reliably. It was important for the FtT to explore this, especially since the claimant had provided evidence suggesting that wearing loose clothing was a way to manage pain or cope with physical limitations. The FtT failing to examine this point may amount to a material error of law as it failed to consider the broader context of the claimant’s functional limitations. This issue is directly addressed in paragraph 16 of PE where the UT stated:

“16.

There must be a balance struck that prevents claimants generating their own entitlement while at the same time not allowing their own disability to be used against them. The solution lies in concentrating on the functions that are involved in dressing and undressing and on the claimant’s condition that is said to limit their ability to perform those functions”.

4.6

By failing to focus on the functions involved in dressing and undressing and instead accepting the use of loose clothing without examining the underlying reason for it, the FtT failed to adequately assess whether the claimant could perform this activity reliably using standard clothing. The FtT also failed to assess whether the claimant’s method of dressing was time consuming or caused fatigue. These are important considerations which under Regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 require that an activity must be carried out safely, to an acceptable standard, repeatedly and within a reasonable time. By not exploring whether claimant could dress and undress in accordance with regulation 4(2A) the FtT failed to make adequate findings of fact. Therefore, it is my submission that the FtT has erred on a point of law.

4.7

Moving on to the third ground of appeal relating to activity 5, at paragraphs 36 to 37 of the SOR, the FtT recorded that it found the claimant could manage toilet needs unaided on more than 50% of days within the required period. However, this finding failed to engage with the claimant’s consistent evidence of significant bladder and bowel urgency, the resulting episodes of incontinence and the frequency with which these occurred. The FtT did not adequately consider how the claimant’s difficulties with timing, urgency and loss of control impacted their ability to reliably manage toilet needs, particularly on the majority of days. On page 57 of the FtT bundle in the HP assessment report it is noted that the claimant:

“…can have bowel and bladder incontinence which can happen 4 or more times a week, says that he is not able to get to the toilet quick enough, doesn’t wear pads to manage this”.

4.8

The FtT did not make any clear findings as to whether the claimant has a reduced functional ability to control their bladder or bowel, which would render them unable to reach the toilet in time. In focussing instead of whether incidents occur on more than 50% of days and the fact that the claimant did not currently wear incontinence pads, the FtT failed to follow the guidance as confirmed in BS v SSWP (PIP) [2016] UKUT 456 (AAC) and SSWP v NH (PIP) [2017] UKUT 258 (AAC). As noted in the respective Upper Tribunal decisions [it] is not necessary for incontinence to occur on more than 50% of days. The question the FtT should ask itself is whether the claimant reasonably needs to wear the pads on over 50% of the days if the risk of becoming incontinent is present on over 50% of the days. The FtT focussed on the absence of pads and frequency of accidents, rather than considering the guidance provided in NH.

4.9

The FtT failed to consider whether the claimant would reasonably require incontinence pads or other aids in managing his bladder and bowel symptoms. As held in KO v SSWP (PIP) [2018] UKUT 78 (AAC), the FtT is under a duty to consider whether the claimant might reasonably be expected to use an aid, even if they choose not to use it in practise. In this case, the claimant stated in the PIP2 questionnaire [page 28 of the FtT Bundle]:

“I am currently under investigation for incontinence with both bladder and bowel. At least 4 times weekly. My daughter assists me with washing my clothes and help with bedding. If I go out, I take spare clothes because I don’t want to use incontinence pads. I use a mattress protector to help with incontinence during the night”.

4.10

This evidence indicates that the claimant experiences functional limitations associated with managing toilet needs and incontinence. The FtT does not explain why it disregarded this evidence of experiencing incontinence on 4 days a week, and why the claimant does not reasonably need to use an aid such as incontinence pads even if she chooses not to wear them.”

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