Between:
MR (Appellant)
v
Secretary of State for Work & Pensions (Respondent)
Before: Upper Tribunal Judge Mitchell
Decided on consideration of the papers
Representation:
Appellant: in person
Respondent: DWP Decision-making and Advice Team (Leeds)
On appeal from:
Tribunal: First-tier Tribunal (Social Entitlement Chamber)
Tribunal case no: SC 186/22/00495
Tribunal venue: Cardiff
Decision date: 8 June 2022
IN THE UPPER TRIBUNAL Appeal No. UA-2022-001709-PIP
ADMINISTRATIVE APPEALS CHAMBER
DECISION
The decision of the Upper Tribunal is to ALLOW the appeal.
The decision of the First-tier Tribunal, taken on 8 June 2022 under case reference SC 186/22/00495, involved an error on a point of law. Under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal sets aside the First-tier Tribunal’s decision. Under section 12(2)(b)(i) of the 2007 Act, the Upper Tribunal remits this case to the First-tier Tribunal for reconsideration in accordance with the following directions:
MR’s appeal against the Secretary of State’s decision of 9 December 2021 is to be re-heard by a differently constituted panel of the First-tier Tribunal;
it is for the First-tier Tribunal to determine the mode of the re-hearing but, in making that determination, the Tribunal must take into account MR’s request for a face-to-face hearing;
if either party wishes to rely on any further written evidence or argument, these must be received by the First-tier Tribunal within one month of the date on which these directions are issued.
Direction (3) above may be varied by direction given by the First-tier Tribunal.
The parties are reminded that, by law, the First-tier Tribunal may not take into account circumstances not existing at the date of the Secretary of State’s decision (9 December 2021): section 12(8)(b), Social Security Act 1998. Evidence generated after that date may be taken into account if the Tribunal considers it relevant to the circumstances at that date.
Reasons for Decision
Introductory
In these reasons, the Appellant is referred to as ‘MR.
Background
The background to this case was set out in the Upper Tribunal’s determination granting MR permission to appeal against the First-tier Tribunal’s decision, as follows:
“DWP’s decision-making
6. [MR’s] existing award was of the enhanced rate of the PIP daily living component on the basis that he scored 12 points for daily living difficulties under the PIP assessment scheme. This award was for the period 22 June 2021 to 24 May 2024. The DWP asked [MR] to complete a PIP disability review questionnaire, which he did on 4 June 2021. [MR] wrote:
- his medical conditions included bi-polar disorder, a double spiral fracture of his lower left leg, and Crohn’s disease;
- amongst the changes since “we last looked at your award”:
◦ “I cannot leave the house to go to the shop alone. I need to be driven somewhere close with easy, quick access to the toilet”;
◦ “over the last couple of years my bowels have become steadily worse”;
◦ “I can’t even leave the house, I need help with everything”;
◦ “my PTSD following a near death assault is making me anxious outside”;
◦ “I avoid people as much as possible and can’t go near a crowd”;
◦ “I need the reassurance of someone I know to accompany me on any journeys. Their presence can help me to get to toilets before I have an accident with bowels”;
◦ “I don’t leave the house unless I have a lift and a meticulous plan. The pain from the fractures and the unpredictability of my bowels makes the ordeal unbearable”.
On 9 December 2021, the DWP, having received a Healthcare Professional’s (HCP) report dated 26 November 2021, decided that [MR] remained entitled to the enhanced rate of the PIP daily living component for the period 22 June 2021 to 24 May 2024, and that the following daily living descriptors applied to [MR]:
needs prompting to prepare or cook a simple meal (2 points);
needs supervision or prompting to wash or bathe (2 points);
needs another person to tell him to dress or undress or how to do so, or needs prompting or assistance to select appropriate clothing (2 points);
needs support to engage with other people (4 points);
needs prompting or assistance to make complex budgeting decisions (2 points).
The award notice also scored [MR] 4 points for mobility difficulties (able to stand and move 50 metres but no more than 200 metres). However, this fell below the 8-point award threshold. No points were given for difficulties planning and following journeys.
Proceedings before the First-tier Tribunal
[MR’s] notice of appeal to the First-tier Tribunal against the 9 December 2021 decision:
argued that he had no control over his bowels, and that condition was under investigation;
argued that his bowel condition was having a ‘seriously negative effect’ on his mental health.
stated, “Please feel free to access my medical records. I’ve been asking for you to do this so nothing is left out or overlooked about my physical and mental health.”;
answered ‘yes’ to the question whether he wanted a face to face tribunal hearing.
The First-tier Tribunal’s decision notice recorded:
“7. There was a remote hearing of this appeal. This was not objected to by the parties. The form of remote hearing was audio (A). A face to face hearing was not held because, in the light of the Covid-19 pandemic, it was not practicable and no-one requested the same…”
The First-tier Tribunal agreed with the DWP that [MR] was not entitled to an award of the mobility component of PIP. While the Tribunal accepted that he could move more than 50 metres, but no more than 200, metres, that only scored four points.
The First-tier Tribunal’s statement of reasons for its decision:
accepted that [MR] had “difficulties with his daily living” and confirmed the award of the enhanced rate of the PIP daily living component (including the 12 points scored by the DWP for daily living difficulties);
found that, while [MR] experienced anxiety when outside his home, this was not “to the level of overwhelming psychological distress”, which was supported by the HCP’s report and his own evidence;
said nothing about the Tribunal’s reasons for proceeding by way of a telephone hearing although, at paragraph 12, it recorded that [MR] attended the hearing “in person” with a support worker. Presumably, the Tribunal meant that [MR] attended by telephone.”
Grounds of appeal
The Upper Tribunal granted MR permission to appeal on the following grounds, as described in the Upper Tribunal’s permission determination:
“it seems clear that the Tribunal overlooked [MR’s] written request, in his notice of appeal, for a face-to-face hearing. Despite that, the Tribunal found that no one requested a face-to-face hearing. Arguably, therefore, the Tribunal’s decision to proceed by way of a telephone hearing was unfair since it did not take account of [MR’s] request for a written hearing”;
“the Tribunal accepted that [MR’s] mental health problems, and associated limitations, were sufficiently serious to justify an award of the enhanced rate of the PIP daily living component. And the fact that he scored four points for impaired ability to engage with others arguably suggests that anxiety was considered a significant component of [MR’s] mental health problems. In those circumstances, arguably the Tribunal, in order to give adequate reasons for its decision, should have explained why, despite [MR’s] mental health problems being significant enough to justify an award of the enhanced rate of the daily living component, he satisfied none of the points-scoring descriptors for the mobility activity of ‘planning and following journeys’”;
“arguably, the Tribunal erred in law by failing to deal with an issue raised by the appeal namely [MR’s] argument that his bowel problem compounded the effects of his mental health problems.”
Arguments
The Secretary of State supports this appeal and submits that grounds (2) and (3) are made out. However, her representative argues that ground (1) is not made out. The First-tier Tribunal held a hearing, as defined by rule 1(3) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008: “ “hearing” means an oral hearing and includes a hearing conducted…by…telephone…”. MR requested a hearing, and the First-tier Tribunal satisfied that request by holding a telephone hearing.
The Secretary of State invites the Upper Tribunal to set aside the First-tier Tribunal’s decision and remit this matter to that tribunal for re-hearing.
I can see from the case entries on the Upper Tribunal’s case management system that there have been difficulties communicating with MR who moved to a new address during the course of these proceedings and that, on two occasions, MR did not receive a copy of the Secretary of State’s submissions sent to his new address. When a copy was received, MR’s reply did not dispute anything in the Secretary of State’s submissions, but he did request a hearing. I am certain that MR means a hearing before his appeal against the Secretary of State’s PIP decision is re-decided rather than a hearing of this appeal to the Upper Tribunal. There is no need to hold a hearing before deciding this supported appeal.
Analysis and conclusion
I decide that all three grounds of appeal are made out. The Secretary of State’s representative’s arguments in relation to Ground (1) miss the real point, which was that the First-tier Tribunal did not take into account MR’s request for a face-to-face hearing. The overriding objective of the First-tier Tribunal’s procedural rules is to enable the Tribunal to deal with cases fairly and justly (rule 2(1)). Dealing with a case fairly and justly includes “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings” (rule 2(2)(c)). For some Appellants, the extent to which they are able to participate in the final, and most important, stage of proceedings – the hearing – will differ according to the type of hearing. The First-tier Tribunal failed to consider this point, which was effectively raised by MR in correspondence, and, as a result, the Tribunal’s determination to hold a telephone hearing failed to give effect to rule 2(3) of its rules, which requires the Tribunal to seek to give effect to the overriding objective whenever it exercises any power under the rules. Determining the mode of hearing is an exercise of a power conferred on the Tribunal under its rules. Ground (1) is made out.
The First-tier Tribunal’s decision is set aside. MR’s appeal against the Secretary of State’s PIP decision will now be heard by a different panel of the First-tier Tribunal. I have given directions above requiring the First-tier Tribunal to consider MR’s request for a face-to-face hearing when determining the mode of the re-hearing.
Upper Tribunal Judge Mitchell
Authorised for issue on 30 April 2025.