Appeal No. UA-2025-000183-PIP
Between:
SH
Appellant
- v -
The Secretary of State for Work and Pensions
Respondent
Before: Deputy Upper Tribunal Judge Hocking
Decided on consideration of the papers
Representation:
Appellant:
Respondent: S May, DWP
On appeal from
Tribunal: Social entitlement chamber
Tribunal Case No: SC947/24/006961 724924390731226
Tribunal Venue: Liverpool
Decision Date: 25 November 2024
DECISION
The decision of the Upper Tribunal is to allow the appeal
DIRECTIONS
This case is remitted to the First-tier Tribunal (“FtT”) for reconsideration at an oral hearing.
It must be heard by an entirely differently constituted 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.
REASONS FOR DECISION
Decision on the papers
Neither party has requested an oral hearing. 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.
Factual background
I gratefully adopt the factual summary set out in the respondent’s submissions:
The appellant made a claim to PIP on 10/02/2021 and a PIP2 questionnaire was completed on 21/02/2021. They had a telephone consultation with a Health Professional (HP) on 11/09/2021. The appellant was notified in a letter dated 06/10/2021 that their claim had been unsuccessful, as they had not been awarded enough points for either the daily living or mobility activities of PIP. The point scoring threshold for an award of PIP is 8 points for either component (daily living or mobility).
The appellant requested a mandatory reconsideration of this in a letter dated 15/10/2021. This was undertaken on 13/01/2022 and the appellant was awarded 8 points for the daily living activities, and 10 points for the mobility activities. This resulted in an award at the standard rate of the daily living and mobility components from 10/02/2021 to 10/03/2024.
In a telephone call on 12/10/2022 the appellant requested that their claim was looked at again due to a change in circumstances, and an AR1 UI questionnaire was completed and returned on 21/10/2022. They had a telephone consultation with a HP on 06/01/2023. The appellant was notified in a letter dated 18/01/2023 that their award had ended as the points awarded had been reduced to 6 points for the daily living activities and 4 points for the mobility activities.
The appellant requested a mandatory reconsideration of this in a letter dated 04/02/2023. This was undertaken on 11/04/2023 and the appellant was awarded 8 points for the daily living activities, and 10 points for the mobility activities. This resulted in an award at the standard rate of the daily living and mobility components from 18/01/2023 to 05/01/2026.
In a telephone call on 17/01/2024 the appellant requested that their claim was looked at again due to a change in circumstances, and an AR1 UI questionnaire was completed and returned on 29/01/2024. They had a face-to-face consultation with a HP on 22/04/2024. The appellant was notified in a letter dated 22/05/2024 that their claim had been successful, as their award had been extended from 22/05/2024 to 21/04/2028.
The appellant requested a mandatory reconsideration of this in a letter dated 31/05/2024. The appellant was notified that the decision was not changed in a letter dated 13/08/2024. The appellant then lodged an appeal on 29/08/2024 with HM Courts and Tribunal Service.
The appeal was heard on 25/11/2024 with the FtT refusing the claimant’s appeal and confirming the decision of the Secretary of State. The appellant, dissatisfied with this then lodged an appeal with the UT.
The grounds of appeal
UTJ Church gave permission to appeal on these grounds:
whether the Tribunal was applying the correct test when assessing your ability to plan and follow a journey: the Tribunal had correctly identified in paragraph [6] that a claimant can only be considered capable of carrying out an activity if that claimant can carry out the activity in question “safely, to an acceptable standard, repeatedly and within a reasonable time period”. Given that the Tribunal accepted that you “feel anxious/panicked when navigating at times”, and given its statement that it was “unable to conclude that any stress/anxiety is such that it prohibits the planning and/or following of journeys”, it is possible that the Tribunal failed to consider whether you could plan and follow a journey “safely, to an acceptable standard, repeatedly and within a reasonable time period”. If it did, it may not have explained that with adequate clarity
and
the Tribunal’s statements that it “remains unclear as to why this activity has become an issue when previously it was not” and “it is also unclear from the evidence whether any feelings of stress/anxiety associated with planning/following journeys are occasional or more regular” raise the issue whether the Tribunal should have considered adjourning to obtain more evidence in order to clarify those matters. While you had said that you would find attending a hearing difficult, the Tribunal could have considered holding a telephone hearing, or asking for written evidence in clarification. However, it hasn’t explained in its statement of reasons or in its decision whether it considered this possibility
The respondent’s position
On the question of planning and following a journey, the respondent says it is unclear whether the FtT considered journeys to unfamiliar destinations, as well as familiar ones.
On the second question the respondent says the FtT should have adjourned , and draws attention to DT v SSWP (UC) [2019] UKUT 268 (AAC) and MM v SSWP (ESA) [2011] UKUT 334 (AAC).
Decision
On the first issue I find that the possible error identified by UTJ Church is made out. The SoR discussion of planning the route of a journey, and following the route of a familiar/unfamiliar journey is underdeveloped and unclear. The FtT both accepted the appellant’s evidence that she finds navigation stressful and feels panicked/anxious when navigating at times, and found that it could not conclude that stress/anxiety prohibits the planning and/or following of journeys. These statements seem to be at odds. It seems to me from the rest of the SoR that the FtT did not in fact accept the appellant’s evidence on this point, which would have been a matter for them, but for the fact that they say the opposite. Further both “at times” and whether we are considering familiar or unfamiliar journeys or both needs to be explained.
I accept that there was evidence pointing both in favour and against finding that one of more of the mobility activity indicators applied, but I am left uncertain as to how the FtT reached the conclusion that none applied in light of all of the evidence. That lack of sufficient reasoning is an error of law.
On the second issue, any FtT writing a sentence such as “It is also unclear from the evidence whether any feelings of stress/anxiety associated with planning/following journeys are occasional or more regular.” should perhaps consider itself as on alert that further investigation may be necessary. An FtT must seek not to be “unclear” on important issues that will go to an appellant’s entitlement.
Where an FtT finds itself drawn to a statement that such and such an issue is unclear, it should first ask itself whether “unclear” is really what it means. This is no time for circumlocution. If an FtT really means that it has not been satisfied by the evidence then it must say so. But if an issue is genuinely unclear then the FtT should expressly consider adjourning to obtain further evidence and should reach a reasoned decision on that issue MH v Pembrokeshire CC [2010] UKUT 28 AAC. As Baroness Hale said in Kerr v Department for Social Development [2004] UKHL 23 any claim for a benefit entails:
a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. (For department read FtT in this context.)
The respondent and appellant say the FtT should have adjourned the hearing. Although I can see there was a strong argument for an adjournment, it is not necessary for me to go so far for the purposes of this appeal. The error of law was not expressly considering whether to adjourn to obtain more evidence relating to the planning and following journeys activity. and not reaching a decision on that issue which considered inter alia the sorts of issues canvassed in MH.
Conclusion
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 fresh tribunal
Stephen Hocking
Deputy Judge of the Upper Tribunal
Authorised by the Judge for issue on 16 July 2025