MM v The Secretary of State for Work and Pensions (PIP)

This case is remitted to the First-tier Tribunal (“FtT”) for reconsideration at an oral hearing.

It must be heard by an entirely fresh panel.

The FtT must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the FtT’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. While the FtT will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.

The new FtT is not bound by the decision of the previous FtT. Depending on the findings of fact it makes, the new FtT may reach the same or a different conclusion to the previous FtT. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the FtT to which this case is remitted.

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

Neither party requests an oral hearing. The parties’ positions are clear and nothing raised by the appeal calls for an oral hearing, which would cause delay. I am satisfied that I can deal with the case fairly on the papers, and that it is in the interests of justice that I do so.

The appellant made a claim for PIP on 11.09.2023. A PIP2 questionnaire was completed by the appellant on was signed on 12.09.2023. They underwent a video consultation, on 02.11.2023.

The appellant scored 0 points for the daily living descriptors and 0 points for the mobility descriptors and a decision letter dated 10.11.2023 was issued to the appellant. The appellant requested a mandatory reconsideration of this decision, however the decision remained unchanged. The appellant lodged an appeal dated 28.05.2024 against the decision.

The FtT hearing was held on 02.12.2024, the appeal was refused. This decision after a video hearing at which neither party attended. I note from the SoR that the appellant had wanted to attend but was told that that would not be possible, as he was abroad at the time of the hearing. He accepted that position.

In granting permission to appeal, UTJ Butler said (edited for length)

I will call the first point the missing evidence point and the second point the date range point.

As to the missing evidence point the respondent confirmed that:

As to the date range point the respondent says this:

So far as the missing evidence point is concerned it is clear the appeal must succeed. The appellant had uploaded material he wished the FtT to consider 2-3 clear working days before the hearing date. Through no fault of his (or, it must be said, the tribunal members who were to consider his appeal) the FtT did not have that material and did not appreciate it was missing. Therefore it did not consider the full case the appellant wanted to make.

Not every late submission of material that does not find its way to an FtT will support an appeal. There will come a point where the submission is so close to the hearing that the risk the material is not put before the tribunal members must fall on the party submitting the material. But this appellant is the right side of the line, albeit not by a generous margin. It is significant that it seems the appellant was not aware he would not be able to participate in the hearing from abroad before 25/11/24. It seems likely that explains why he then went on to submit further written material on 26 and 27 November rather than earlier. I feel that is reasonable behaviour. Coupled with the fact that he acted reasonably promptly once he knew he could not attend from abroad and that he submitted the material with at least two clear days to go before the hearing I find that is a procedural irregularity which had the effect of denying the appellant the chance to have his full case considered by the FtT and was thus an error of law.

As to the FtT position that the material would have made no difference that must be approached with great caution. The words ofMegarry J in John v Rees [1971] CH 345 at 402D are so well known as to have become a legal cliché:

However the possibility of changing a decision is only one reason why it is important to hear an appellant’s case fairly. Another relates to the legitimacy of the tribunal process itself: “[An] important rationale” [for hearing from a party in a case] “is the avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel.”R otao Citizens UK v SSHD [2018] EWCA Civ 1812. That rationale would apply even if what were to be said would not have affected the outcome (subject to a requirement that what is to be said must at least bear on the subject matter before the FtT). Here the appellant anticipated an oral hearing, was unable to participate in that hearing, and submitted written material instead. It is very easy to see that he may have a sense of injustice on discovering that that written material was not considered. Even if the decision remains the same after a rehearing, the removal of that sense of injustice is a desirable goal in its own right.

Turning to the date range point, the “required period” is a made up of two elements, a period three months before the date of claim and a period of nine months after the date of claim, reg 7(30(a) of the Social Security (Personal Independence Payments) Regs 2013. In this case that amounts to a one year period beginning on 11 June 2023. The ability to carry out any particular activity before or after a required period is not relevant per se. Evidence of ability pre or post dating that period may be relevant but only to the extent that it properly informs an assessment of a claimant’s ability during the required period.

The SoR refer to a test carried out on 1/10/24 which gave an Epworth score of 5, but also state that by October 2024 his Epworth score was 2. There is no discussion of how those scores would inform an assessment of abilities in the required period. The SoR also refer to surgery on 10 June 2024 and that this resolved at least some symptoms, that the appellant was no longer reporting symptoms by 16 October 2024, and that he said his significant symptoms had persisted until June 2024. .

The FtT conclude that “the functional impact of his diagnosis of sleep apnoea did not therefore satisfy the prospective period” but I cannot follow how that conclusion was reached by reference to the evidence cited. I can see that by October 2024 (indeed, on the appellant’s own evidence by July 2024) it could be reasonable to conclude there were no material symptoms. What I cannot see is whether and if so how that informs an assessment of abilities during the required period. If the surgery produced an improvement (and the appellant says it did) then the question of whether symptoms post surgery are informative of conditions pre surgery at all would need to be considered. I am also unclear what the FtT made of the use of a CPAP: they record one was used, and that with use there had been an improvement in symptoms. The appellant’s evidence, (I do not know if it was accepted) is that he paused using the machine in February 2024 for the rest of the required period. I cannot tell what the FtT made of the impact of the machine on symptoms or how this affected their analysis. At the least, more reasoning and engagement with the evidence is needed here.

For these reasons the assessment of the appellant’s abilities to carry out the various PIP activities in the required period is sufficiently unclear as to be in itself an error of law.

Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I therefore set the FtT decision aside and remit the case to be reconsidered by a freshly constituted panel. I stress that this appeal having succeeded carries no implication for whether the FtT will or will not reach a decision that is more favourable to the appellant. That is a matter for it.