KR 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 in law in the decision to which it came on 19 July 2024 and that its decision should be set aside as a result.

I allow the appeal on the following two grounds, which arise out of (but are not necessarily the same as) the grounds of appeal which were put forward by the appellant. (I did not listen to the record of proceedings in allowing the appeal on the two grounds of appeal.)

The first ground on which I allow the appeal concerns the documents at additions A and B in the FTT bundle. It would appear that these document are a copy of a single letter of three pages from Psychiatry UK. The problem is that the letter is, effectively, illegible and unreadable. Whether or not the FTT raised that this letter was unreadable with the appellant at the outset of the hearing so that she could seek an adjournment to provide a better (i.e. readable) copy of the letter (per paragraph 7 of the FTT’s reasons), in my judgement FTT erred in law in failing to properly explain why it considered it was fair and just to proceed to decide the appeal on evidence that included unreadable evidence.

On the face of the cover document which the appellant submitted with this ‘updating’ letter, the appellant considered this evidence was relevant and wished to rely on it. The FTT, moreover, do not state that it was satisfied the evidence was irrelevant. In these circumstances, and given in particular rule 2(2)(c) of Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, and the need for the FTT to ensure, so far as was practicable, that the appellant could participate fully in the proceedings (my emphasis), in my judgement the FTT erred in law in failing to explain why it considered it was fair and just to decide the appeal without being able to read the letter at additions A and B.

The second ground on which I allow the appeal concerns the FTT’s treatment of the evidence of the appellant’s partner, Mr AB. The overall concern here is that the FTT have failed to provide an adequate explanation for why (as on the face of it it did) it rejected Mr AB’s evidence. By way of example, at paragraph 19 of the reasons for its decision the FTT records Mr AB’s evidence that the appellant almost always needed to be prompted to be showered, but the FTT must have rejected that evidence as two points were not awarded for daily living descriptor 4c. The rest of the FTT’s reasoning on daily living activity 4 does not explain what the FTT made of Mr AB’ evidence and why it was not accepted as being accurate. Similar concerns arise in respect of what the FTT made of Mr AB’s evidence about the appellant under daily living activity 9 and PIP mobility activity 1.

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 24 June 2025. The material parts of that submission, with which I agree, read as follows:

“10.

In paragraph 7 of the Statement of Reasons (SOR) the FTT state ‘Some of the documents were of very poor quality (additions A and B) which was mentioned to the Appellant at the outset, in case she wanted an adjournment to allow better copies to be submitted.’ Although, the FTT did afford the appellant with the option of adjourning the hearing as to allow her to provide clear copies of the evidence, they have failed to explain why it was fair and just to proceed with the hearing. As per Rule 2 of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.

11.

From reading the letter provided by the appellant it is clear she relied on the evidence that was illegible stating that ‘I actually provided evidence on this, evidence which I assume was the ‘poor quality’ documents mentioned in point 7 of the statement of reason..’ (UT bundle, page 12). The FTT have failed to provide a clear explanation on why they found the illegible evidence irrelevant.

12.

I submit that the FTT breached the overriding objective of dealing with the case fairly and justly and as per Rule 2(2c) of the Tribunal Procedure (First-tier Tribunal) Social Entitlement Chamber) Rules 2008, they didn’t ensure, so far as practicable, that the parties were able to participate fully in the proceedings.

13.

Furthermore, from reading the SOR, it appears that the appellant’s partner, [AB’s], evidence was rejected when awarding points for the descriptors. The FTT have failed to provide an explanation of why the evidence was rejected. This is amounts to an error of law, as set out in the case of South Bucks District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 at [36] which states: 

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved”.

14.

Applying the above, the absence of reason as to why the FTT did not use [AB’s] evidence to inform the decision is unclear. The FTT should have explained why they did not give weight to the evidence.”

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 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.