RH v The Secretary of State for Work and Pensions

RH made a claim for personal independence payment (PIP) on 30 January 2023. The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, asked RH to take part in a telephone medical assessment on 05 May 2023. Having received advice from that assessment, on 22 May 2023, DWP decided RH did not score any points for either PIP daily living or mobility activities. DWP therefore refused RH’s PIP claim.

RH appealed to the First-tier Tribunal on 05 March 2024. Her appeal was decided following an “in person” hearing at Wakefield on 10 December 2024. The First-tier Tribunal (“FTT”) awarded RH descriptor 9.c (4 points) for Engaging with other people face to face but decided she scored no other points for any of the PIP activities. It appears that DWP confirmed it did not dispute RH should be entitled to descriptor 9.c, as a result of its submission dated 29 October 2024 (Addition F, pages 1-2 of the appeal bundle). As the threshold for an award of PIP is 8 points, the FTT therefore refused RH’s appeal.

On 14 March 2025, RH applied to the Upper Tribunal for permission to appeal against the FTT’s decision. In a decision dated 14 April 2025, I granted RH permission to appeal against the FTT’s decision on the basis it was arguable the FTT had made one or more of the following errors of law, based on the grounds identified by RH’s representative:

I observed there is a distinction to be drawn between activity 7 (communication) and activity 9 (engaging with others face to face). In SSWP v GJ (PIP) [2016] UKUT 0008 (AAC), the Upper Tribunal emphasised this at paragraph 21, including the need to draw a distinction between the types of tasks the activities seek to test. This approach was approved by the Upper Tribunal in the subsequent decision of SSWP v AS (PIP) [2017] UKUT 454 (AAC). However, I considered the appeal ground summarised at paragraph 3(b) above to be arguable, which was the threshold for granting permission to appeal.

Using my inquisitorial role, I also identified the following arguable errors of law by the FTT:

Mrs H. Hawley is the Secretary of State’s representative in these proceedings. She supports the appeal to the Upper Tribunal in a helpful written submission dated 11 June 2025. Mrs Hawley invites the Upper Tribunal to set aside the FTT’s decision dated 10 December 2024 for containing material errors of law, for the reasons set out below.

Adequacy of factual findings and / or reasons for the FTT’s decision: Mrs Hawley submits the FTT’s reasoning is limited in terms of how it assessed RH’s functional abilities. She argues that the parts of the Statement of Reasons dealing with RH’s difficulties with the PIP daily living activities appears to do no more than rehearse part of the evidence and reach a conclusion without an adequate explanation.

Adequacy of factual findings and reasons regarding activity 7 (Communication): Mrs Hawley submits that in the Statement of Reasons, the FTT appears to have conflated the evidence and descriptors regarding activities 7 and 9. The FTT did not appear to have considered RH’s reported difficulties understanding the context of conversations, her tendency to take certain phrases and conversations literally and her difficulties managing sarcasm and banter. Mrs Hawley submits this is particularly pertinent, given the opinion of the psychologist diagnosing RH’s autistic spectrum condition was that RH had difficulties, not only with social interaction, but also with social communication (Addition E, page 116 of FTT bundle). That psychologist also supported RH’s evidence that she has difficulties understanding the context of conversations, sarcasm and banter, which can result in misunderstandings with unfamiliar persons.

Mrs Hawley argues the FTT appeared to concentrate on RH’s ability to work and the work she undertakes, leaving the impression her reported difficulties were not as limiting as claimed. Mrs Hawley argues that this appears to be at odds with the FTTs acknowledgment at paragraphs 8 and 9 of the Statement of Reasons that RH had been given adjustments at work to deal with customer complaints and had difficulties addressing groups or managing complaints at work. Mrs Hawley also highlights that RH provided evidence that on the psychologist’s recommendation, she no longer has to undertake story time at the library due to her anxiety as she struggles to understand facial expressions and body language.

Mrs Hawley also submits the FTT did not ask RH what her work entailed and appeared to infer it was a customer facing role without having established this. Mrs Hawley also submits that the FTT does not appear to have considered RH’s evidence that she often feels out of her depth dealing with people at work (Addition B, pages 2-3 of FTT bundle).

Mrs Hawley argues that collectively, these matters indicate the FTT materially erred in law, by making insufficient findings to support and explain their decision that RH did not score any points for PIP daily living activity 7 (Communication). She also argues it is unclear from the Statement of Reasons whether the FTT considered the requirements of regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 (“the 2013 regulations”) in relation to that activity.

Considering the use of an aid for communicating: Mrs Hawley submits the FTT has not addressed the evidence from RH’s psychologist that raises the possibility of wearing ear plugs to make her hearing less acute and competing noise more tolerable (Addition E, page 127 of FTT bundle). Mrs Hawley also highlights that RH’s GP medical summary notes an entry on 09 March 2023 when her GP recorded RH saying she was using a silicon ear plug to block out background noise at work. Mrs Hawley submits the FTT has not addressed the use of silicon ear plugs to help RH reduce background noise or communicate with other people more easily. Mrs Hawley submits these represent an error of law, resulting in the FTT making insufficient findings to support its conclusions that RH could communicate verbally in accordance with regulation 4(2A) of the 2013 regulations

Adequacy of factual findings and / or reasons regarding PIP activity 9 (Engaging with other people face to face): Mrs Hawley observes the FTT decided that RH did not claim to exhibit any behaviour that would result in a substantial risk of harm to herself or others (paragraph 10 of Statement of Reasons). Mrs Hawley submits that the FTT has not addressed the fact that RH engaged in behaviours causing a great deal of distress and concern to others, leading to RH being involved with medical, and other, professionals about those behaviours. Mrs Hawley ascribes these behaviours to RH’s difficulties with social interaction and social communication. Mrs Hawley observes that the psychotherapist assessing RH (in 2004) expressed concerns she was at risk of repeating similar types of behaviour in the future (Addition A, pages 5 and 7). Mrs Hawley submits the FTT has made inadequate findings within the Statement of Reasons to support and explain its decision that the most appropriate descriptor for RH was 9.c, rather than the higher scoring descriptor.

Having received the written submissions of the SSWP’s representative, RH’s representative has, understandably, indicated RH does not wish to make any further representations.

Neither party requested an oral hearing of the appeal. I took these preferences into account. I considered the appeal file. I decided the interests of justice did not require an oral hearing. The parties agree the FTT made were material errors of law. It was proportionate to determine the appeal on the papers.

At the permission stage, I only needed to be persuaded that it was arguable with a realistic (as opposed to fanciful) prospect of success that the FTT had made an error of law in a way that was material.

At this substantive stage, I need to be satisfied on the balance of probabilities that the FTT did make an error or errors of law that were material.

I am satisfied, on the balance of probabilities, that the FTT made material errors of law in relation to the appeal grounds addressed by the SSWP’s representative at paragraphs 7 to 13 above, dealt with in more detail by her submission dated 11 June 2025. Those errors of law are sufficiently material, without needing to go on to consider the other areas where I gave RH permission to appeal.

Having decided the FTT’s decision involved material errors of law, it is appropriate to exercise my discretion to set aside the Tribunal’s decision dated 10 December 2024 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act provides that I must either remit the case to the First-tier Tribunal with directions for their reconsideration or remake the decision.

Neither party invited me to remake the FTT’s decision. In any event, it is necessary for facts to be found. The First-tier Tribunal is best placed to evaluate the evidence, including using its medical and disability expertise, and to make appropriate findings of fact.

I therefore remit RH’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about whether RH should be entitled to PIP at the date of DWP’s decision on 22 May 2023.

Although I have set aside the FTT’s decision dated 10 December 2024, I am not making any findings, or expressing any view, about whether RH should be entitled to PIP. The next tribunal will need to hear evidence, make its own findings of fact and provide its reasoning for the decision it reaches.