Appeal No. UA-2025-000429-PIP
Between:
VH
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: Kester disability rights
Respondent: Ms Pettet
On appeal from
Tribunal: Social entitlement chamber
Tribunal Case No: 1704-8012-6467-8655
Tribunal Venue: Poole
Decision Date: 17/12/2024
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 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.
REASONS FOR DECISION
Decision on the papers
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.
Factual background
The appellant made a claim for PIP on 10 May 2023. Following a HCP assessment on 25 September 2023, she was notified on 5 October 2023 that she was awarded two points for each of daily living descriptors 1b, 4b, 6b and 4 points for mobility descriptor 2b. Accordingly she was not entitled to either element of PIP. That decision was unchanged following mandatory reconsideration, and remained unchanged after appeal to the FtT
Grounds of appeal
UTJ Butler gave permission to appeal on all of the grounds identified by the appellant. which she summarised as:
The application of “repeatedly” by the First-tier Tribunal (“FTT”) does not confirm to the definition provided in regulation 4(4)(b) of the Social Security (Personal Independence Payment) Regulations 2013, namely “as often as the activity being assessed is reasonably required to be completed”. Mr Dean argues that the FTT’s assessment of what is reasonably required is unrealistic given it found you needed a two-hour rest if you repeated a 10-minute excursion once. The FTT found no movement at all was possible after two very short walks for a period of two hours. This is not as much as reasonably required during waking hours with the intention of the benefit being to promote independence;
The reference to “walking 1-2 minutes, resting and repeating, even at a slow pace would equate to more than 50 metres” is also an error of law due to having insufficient regard to regulation 4(2A) (KN v SSWP [2016] UKUT 0261 (AAC));
The impact of breathlessness has not been considered at all despite your GP report of 21 September 2023 describing you being “…breathless with minimal exertion (page 50 of FTT bundle). Whether you were breathless during the distances found by the FTT was important in deciding whether you could be considered to reliably accomplish such distances; and;
(The FTT did not make sufficiently clear findings on distances accomplished to an acceptable standard, nor on repeatedly, nor on whether the distances it found could be accomplished within a reasonable time period.
Judge Butler also identified (and gave permission for) the following additional grounds of appeal:
It is unclear whether the FTT has considered and applied the correct test for engaging with other people face to face; the FTT appears to have taken into account that you would engage with people while gaming online. However, if this was not face-to-face, it would not have formed part of the test the FTT needed to apply. The FTT has not made clear whether it assessed you against the three-part definition of engaging socially, which includes forming relationships. Nor is it clear that the FTT had considered whether you could carry out engaging with other people face to face repeatedly, within the meaning of regulation 4 of the 2013 regulations. This may represent an error of law;
In relation to moving around, the FTT has not given any indication of the distances you would walk to the local shop, within the shop, or to the local bench. Nor has the FTT given any indication of your pace when walking compared with other people (for the purpose of assessing whether you could move around within a reasonable time period). In these circumstances, the FTT may have failed to make adequate findings of fact or provide adequate reasoning for its decision on this activity.
The respondent’s reply
The respondent says:
Turning to the first ground of appeal, as helpfully noted by UT Judge Butler in their Permission to Appeal (PTA) in relation to daily living activity 9 – Engaging with others face to face (repeated above). The FtT stated the following at paragraphs 57, 58, 60, 61 and 63 of the SOR.
“The appellant stated that her social anxiety had worsened, and that she was often did not leave the house due to social anxiety and panic, having only left the house on 1 occasion socially in the past year, other than a short break or visiting family in the last 12 months.
In the medical assessment she stated that she was able to come across as confident but would feel anxious inside. She was reported to be tearful at times in the medical assessment but was able to make a joke with the assessor and appear jovial.
She spoke to her family and had one friend that she was in contact with, and that she could reach out to when she felt she needed support with things like booking travel tickets.
She was able to engage with people whilst gaming online, and able to speak to her neighbours. When pain and fatigue enabled her to go out she was able to go to a café and shops.
The Tribunal finds that whilst the appellant experienced a level of anxiety, she not taking any medication for this. She was not going out regularly as a result of pain and fatigue. She was able to engage with people- whilst she might feel anxious inside, she was able to appear confident from the outside and manage engagement without the need for prompting or support.”
In dealing with UT Judge Butlers helpful point at 6(a) in their PTA (repeated above), whilst the FtT noted at paragraph 61 of the SOR (repeated above) that “She was able to engage with people whilst gaming online…” I respectfully wish to note that this is not the correct test when assessing a claimant’s ability to engage with others face to face. Additionally, in deciding what ‘engage socially’ means, the starting point would be Schedule 1 of The Social Security (Personal Independence Payment) Regulations 201, which states:
“engage socially” means—
(a)interact with others in a contextually and socially appropriate manner;
(b)understand body language; and
(c)establish relationships;
It is unclear whether the FtT did in fact consider whether the claimant was able to undertake any of the three limbs of definition.
Furthermore, notwithstanding, the FtT concluding at paragraph 63 of the SOR (repeated above) that the claimant was able to manage engagement without the need for prompting or support, it is unclear if the FtT considered what the claimant had reported in her PIP2 questionnaire at pages 14 to 15, that: “Over the years my social anxiety has got worse and worse and worse. Now, due to a mix of physical limitations and anxiety, I often find I do not leave my house. It creates so much stress, anxiety and panic. This year, other than a short break and visiting my family I would say I have left my house on 1 occasion socially and this required encouragement from family and friends… I find it hard to make plans and will cancel plans due to my anxiety…. I have spent much of the last 10 years in social isolation, and at home…”.
Moreover, I note that during the video consultation that the following was reported at page 26: “…Did at times go off on tangents, HP gave prompts to return back to original subject…did at times struggle to word find. Some difficulty coping at interview, was tearful when discussing her mental health.…”. However, the FtT do not appear to engage with this. Could it be that despite being able to leave the house once socially, and undertaking a video health assessment, that on both occasions the claimant was in fact prompted to do so. Also as repeated above that the claimant did have difficulty during the video assessment, with not only finding the right words, being kept on track (requiring prompting to do so) that she was also tearful as noted by the HealthCare Professional (HCP).
It is clear upon my reading of the SOR that in reaching its conclusion the FtT has clearly failed to take into consideration the difficulties the claimant had identified. ….
Turning to the second ground of appeal, as helpfully noted by UT Judge Butler in their PTA in relation to Mobility activity 2 – Moving around (repeated above). The FtT stated the following at paragraphs 75 to 79 of the SOR:
“The Tribunal finds that the appellant is limited due to pain and fatigue, however she was able to walk 10 minutes to the local shop, 5 minutes in the shop and then walk home. She would need to rest on the sofa for a couple of hours after this.
She was able to walk around her home and could walk 1-2 minutes from her home to the bench, sit in the fresh air, then return home again,
She does not use any walking aids, and does not take pain relief medication regularly, although stated that when shopping, she would lean on the trolley for support. She did not consider that an aid would assist as it would be another thing to worry about.
The Tribunal finds that she’s walking 1-2 minutes, resting and repeating, even at a slow pace would equate to more than 50 metres. She was able to lean on the shopping trolley when shopping to help manage, which suggests that she would benefit from using an aid, and she was not taking regular pain medication, which would help manage any pain.
The Tribunal finds that on the majority of days the appellant would be able to manage in excess of 50 metres, repeatedly and to an acceptable standard, and awards 4 points for this descriptor.”
It is unclear how the FtT came to their conclusion when stating at paragraph 75 of the SOR (repeated above) that: “…she was able to walk 10 minutes to the local shop, 5 minutes in the shop and then walk home…”. It is noteworthy that the HCP reported at page 25 the following:
“When going to the shop it takes around 10 minutes to walk there, she may stop and lean on the wall somewhere. It should be a 5 minute walk. She would stop around 5 minutes in to the journey, she will lean on the wall for around 2 minutes before completing the journey. She leans to get her breath back. Once she gets to the shop she feels done in, but she knows she needs to get food because she needs it. She would spend around 5 minutes in the shop. It takes her 10 minutes to get home, she may have a sit on the bench at the shop before returning. She would stop to catch her breath more, she feels bad once she gets home. If she forgot something at the shop she could not return, she would be on the sofa for the next few hours and be in a lot of pain.”
However, it is unclear whether the FtT considered that the claimant was in fact taking twice as long to go to the shop (as reported above) and, that the claimant was having a 5 minute stop. It is also unclear whether the FtT have considered the fact that the claimant upon taking 10 minutes to get to the shop (normally a 5 minute walk), 5 minutes in the shop would then have to sit on a bench at the shop before completing the return journey.
As helpfully noted by UT Judge Brewer at point 6(b) of their PTA (repeated above), there are no findings of the distance that the shop is. The FtT appear to have placed their findings of the distance the claimant would be able to walk on the 1–2-minute walk (paragraph 76 of the SOR, repeated above). I would note that whilst this appears from the FtT’s conclusive statement at paragraphs 78 and 79 of the SOR (repeated above) that the claimant is able to mobilise more than 50 metres. However, it is unclear again how the FtT came to this conclusion as the HCP had recorded at page 21 that the claimant lives in ground floor flat and states at page 25 that:
“When going to sit in the yard she walks from her home to the bench, this is around 1-2 minutes. She walks at a slow pace. Once she gets to the bench she feels relieved because she can sit down. She is happy to get the fresh air, she spends 2 minutes or more. After this it may take her another 1-2 minutes to return.”
Therefore, could it be that given the claimant is in a ground floor flat and it takes 1-2 minutes (at a slow pace) to get to the bench in the yard and that she sits at the bench for 2 minutes, this may be a very short distance from the claimant’s door? As such, it is unclear what distance the claimant was able to mobilise, not only to the bench at her home but to the shop and whether consideration has been given to the claimed conditions and their functional impact.
As a minimum when recording mobility activity 2 it was relevant to consider all the evidence and whether the claimed pain, and fatigue may have an effect on the claimant’s ability when mobilising. Therefore, given the evidence as noted above, it was incumbent upon the FtT to consider the combination of the difficulties, which may make mobilising difficult for her. The FtT’s decision and reasons lead me to infer that they did not adequately consider the claimant’s ability to mobilise in accordance with Regulations 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013. As such, I submit that the FtT have erred in law by providing insufficient reasons to explain their choice of descriptor for mobility activity 2 – Moving Around.
Decision
I agree with the respondent’s observations. Beginning with mobility activity 2, it is not possible to understand from the SoR how the conclusion reached is compatible with the evidence recited and with Regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013. In particular the question of how far the appellant can walk without being in an unacceptable level of pain needs to be addressed, and (given that the walk to the shops does not seem to be a great distance) the evidence that she would then be on the sofa for some hours in pain and unable to repeat the journey needed to be discussed. Regard should be had to PS v SSWP [2016] UKUT 0326 (AAC) at paragraph 11, which reads:
What the Appellant was saying in his written and oral evidence was that he suffered pain when he walked, that he would walk slowly for a short distance despite the pain but that it would get worse until the pain would stop him. It could not properly be assumed that, because the Appellant managed to keep going for a certain distance, any pain he experienced while he was walking was not relevant. If a claimant cannot carry out an activity at all, regulation 4(2A) does not come into play. Where a person is able to carry out an activity, pain is clearly a potentially relevant factor to the question whether he or she can do so to an acceptable standard.”
Here, pain both during and after the mobilisation may be relevant. Provided the pain is connected to the mobilisation then it will be relevant to regulation 4(2A) whether it occurs at the time or thereafter. Furthermore, if it is accepted that after mobilisation the appellant is then effectively immobile for some time, (and whether that is accepted or not is a matter for the FtT) then that would be relevant to whether the mobilisation is to an acceptable standard (and possibly to whether it can be done repeatedly).
Remaining with mobilisation, the respondent is correct to say a finding as to the distance to the shops is necessary to understand the relevance of that mobilisation to the points awarded. On the face of it if the shops are a five minute walk at a normal pace that would imply that they are more than 200 meters away, possibly considerably so, but it is difficult to reconcile that with the evidence that a walk to the yard (presumably a fraction of that distance) takes 1-2 minutes.
Fundamentally on mobilisation there appears to be conflicting evidence, and the FtT need to consider all of that evidence, and decide which it prefers and why. Provided they do so the evaluation of the evidence will be matter for their judgement.
I also agree with the concerns expressed by the respondent about daily living activity 9. An ability to engage while gaming may not be very informative to that activity. First it is not face to face, nor is it likely to engage in any sort of social relationship as such (or any way, if it does that needs to be explained). Second, the ability to interact with others when not scaffolded by the common interest of playing a game together needed to be considered. More broadly the respondent draws attention to evidence that would tend to support the appellant’s case under this activity; the FtT would be entitled to reject that evidence, but only after considering it holistically in company with all of the other relevant evidence and giving a reasoned decision for doing so. The SoR do not go far enough in that regard.
Conclusion
The appellant invites me to remake the decision. I regret I feel unable to do so. A fresh decision requires a fresh consideration of the evidence, and a further hearing, with the FtT will be better placed to conduct. I note also that the appellant says she cannot attend a further FtT hearing. She asks me not to direct an oral hearing before the FtT. I must leave the conduct of its hearings to the FtT but I note that it has power to deal with cases without the appellant being present, if she so wishes.
That will be a matter for her, but the FtT will be very experienced in conducting hearings with people who find participation difficult, and I would encourage her at the least to explore with them what adaptations might be offered to facilitate her participation in some form. It may be after that exploration she still does not wish to take part but I do hope she and the FtT to explore what might be done before she takes that decision.
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.
Stephen Hocking
Deputy Judge of the Upper Tribunal
Authorised by the Judge for issue on 18 December 2025