Between:
GQ
Appellant
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Wikeley
Decided on consideration of the papers
Representation:
Appellant: Ms C. Andrews, Legal Rights Service, RNIB
Respondent: Ms C. Keates, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-Tier Tribunal (Social Security and Child Support)
Tribunal Case No: SC246/23/01166
Digital Case No: 1692701977779051
Tribunal Venue: Huddersfield County Court
Hearing Date: 4 June 2024
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with this decision and the following directions.
DIRECTIONS
This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.
The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 4 June 2024.
The Appellant is reminded that the tribunal can only deal with the appeal, including her health and other circumstances, as they were at the date of the decision by the Secretary of State under appeal (namely 20 June 2023).
If the Appellant has any further written evidence to put before the tribunal and, in particular, further medical evidence, this should be sent to the HMCTS regional tribunal office within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).
The new Tribunal hearing the remitted appeal will be dealing with the closed period from 27 February 2023 to 20 June 2024 (see paragraph 13 below).
The new First-tier Tribunal is not bound in any way either by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.
These Directions may be supplemented by later directions by a Tribunal Legal Officer, Tribunal Registrar or First-tier Tribunal Judge.
REASONS FOR DECISION
Introduction
The Appellant’s appeal to the Upper Tribunal succeeds and so there will need to be a completely fresh hearing of the original Personal Independence Payment (PIP) appeal before a new First-tier Tribunal (FTT).
The Upper Tribunal’s decision in summary and what happens next
I allow the Appellant’s appeal to the Upper Tribunal. The decision of the First-tier Tribunal involves a legal error. For that reason, I set aside the Tribunal’s decision.
The Appellant’s case now needs to be reheard by a new and different First-tier Tribunal. I cannot predict what will be the outcome of the re-hearing. So, the new tribunal may reach the same, or a different, decision to that of the previous Tribunal. It all depends on the findings of fact that the new Tribunal makes.
The factual background
The short version is that the Secretary of State’s decision-maker refused the Appellant’s claim for PIP. The Appellant, who has a visual disability, appealed to the FTT. The FTT confirmed the decision to disallow the claim, scoring the Appellant at just 2 points for PIP descriptor 8b.
The grounds of appeal
The Appellant’s grounds of appeal were as detailed on Form UT1. In summary, it was argued that the FTT had erred in law by failing to find sufficient facts. I gave permission to appeal.
Ms C. Keates, the Secretary of State’s representative in these proceedings, supports the appeal. She sums up her analysis as follows (SOR = Statement of Reasons):
It is my submission that the Tribunal has erred in law in both its fact finding and duty to provide adequate reasons for its decision. The conclusion from the FtT on how they assessed the claimant’s functional abilities appears limited in their reasoning. It seems that what the FtT has provided when reading the SOR to be no more than a rehearsal of evidence and a conclusion without an explanation.
In addressing the claimant’s representative’s grounds of appeal regarding making insufficient findings of facts, it is clear upon reading the SOR as a whole that the FtT has failed to make adequate findings on the impact of the claimant’s health conditions, including the claimant’s ability to undertake the relevant daily living and mobility activities in accordance with regulation 7 and 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013.
Having reviewed the FTT’s findings and reasons in some detail (paragraphs 4.4-4.11), Ms Keates concludes by making the following points:
Although the FtT is entitled to give weighting to whatever evidence that it chooses, where there is conflicting evidence, it must in the first instance explore and consider it in a holistic manner and provide sufficient reasons explaining why it preferred the evidence that it had. In this appeal the FtT does not appear to have done that. There appears to be a distinct lack of reference to the evidence provided by the claimant and the medical evidence which demonstrate the long-standing nature of her health conditions. Therefore, it could be said that had the FtT given appropriate consideration to all the evidence, including accurately identifying the effects of the claimant’s conditions, the FtT may have considered the claimant’s limitations. As such, I submit that the FtT have failed to give adequate reasons as to why evidence in parts was not accepted when deciding not to award points.
For completeness, I should add that Ms Andrews, the Appellant’s representative, has no further observations.
Analysis: a summary
I agree with the detailed analysis of the Secretary of State’s representative in her written submission on the appeal, which I have only summarised above.
I am accordingly satisfied that the First-tier Tribunal erred in law for those reasons. I therefore allow the Appellant’s appeal to the Upper Tribunal, set aside (or cancel) the Tribunal’s decision and remit (or send back) the original appeal for re-hearing to a new tribunal, which must make a fresh decision.
What happens next: the new First-tier Tribunal
There will therefore need to be a fresh hearing of the appeal before a new First-tier Tribunal. Although I am setting aside the previous Tribunal’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to PIP for the period in issue and, if so, which component(s) and at what rate(s). That is a matter for the good judgement of the new Tribunal. That new Tribunal must review all the relevant evidence and make its own findings of fact.
In doing so, however, unfortunately the new Tribunal will have to focus on the claimant’s circumstances as they were as long ago as in June 2023, and not the position as at the date of the new hearing, which will obviously and regrettably be more than two years later. This is because the new Tribunal must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998). The decision by the Secretary of State, which was appealed to the FTT, was taken on 20 June 2023.
The new Tribunal will also note it is now dealing with the case as covering a closed period. This is because the Appellant made a further claim for PIP on 21 June 2024, a claim which it appears at the time of writing has yet to be decided. As a result, the FTT hearing the remitted appeal will therefore be dealing with the closed period from 27 February 2023 to 20 June 2024.
Conclusion
I therefore conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The case must be remitted for re-hearing by a new tribunal subject to the directions set out above (section 12(2)(b)(i)). My decision is also as set out above.
Nicholas Wikeley
Judge of the Upper Tribunal
Authorised by the Judge for issue on 19 June 2025