MG v Secretary of State for Work and Pensions

This case is remitted to the First-tier Tribunal for reconsideration at a fresh hearing.

A District Tribunal Judge should consider the Appellant’s request for the remitted appeal to be dealt with ‘on the papers’ (see paragraphs 18 and 19).

The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 19 December 2024.

The Appellant is reminded that the tribunal can only deal with the appeal, including his health and other circumstances, as they were at the date of the decision by the Secretary of State under appeal (namely 21 August 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 (4) above).

The new Tribunal hearing the remitted appeal will be dealing with the closed period from 13 April 2023 to 27 May 2025 (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.

I note the Appellant’s request for this appeal to the Upper Tribunal to be dealt with ‘on the papers’ and so without holding an oral hearing. The Appellant explains:

I have taken that request into account as required by regulation 34. I am satisfied that it is fair and just to accede to that request, not least as it is not the Upper Tribunal’s primary role to engage in fact-finding. An appeal before the Upper Tribunal is confined to an error of law jurisdiction, and this case can be properly dealt with at this level on the papers.

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). A District Tribunal Judge should decide the mode of hearing.

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 Appellant, who has mental health issues (ADHD, depression and anxiety), applied for PIP. The Secretary of State’s decision-maker refused the Appellant’s claim, scoring him at zero points for both daily living and mobility activities. The Appellant appealed to the FTT, which held an oral face-to-face hearing. The FTT confirmed the decision to disallow the Appellant’s PIP claim, scoring the Appellant at just 2 points for daily living descriptor 9b. The FTT refused an application for permission to appeal. The Appellant then applied to the Upper Tribunal for permission to appeal.

The Appellant’s original grounds of appeal were as detailed on Form UT1. They may be summarised as (i) a failure to apply regulation 4(2A) of the Social Security (PIP) Regulations 2013, (ii) inadequate findings of fact and failure to engage with the evidence, (iii) misapplication of the law and medical terms, (iv) procedural unfairness and (v) disregard of key context and factual contradictions. I gave him permission to appeal, observing that “the Appellant’s grounds of appeal are on the face of it arguable. However, it may be that the grounds are really seeking to re-argue the factual merits of the case, in which case the appeal cannot succeed. So, the fact that permission to appeal has been granted should not be taken as any indication of the likelihood on closer scrutiny of the appeal succeeding.”

Mr S. May, the Secretary of State’s representative in these proceedings, supports the appeal. He helpfully reformulated the original grounds of appeal as follows:

As to Ground 1, Mr May observes as follows:

As to Ground 2, the Secretary of State’s representative submits that “It is not clear from the SOR that the Tribunal considered this fully, investigating further the frequency of the burnout episodes and the impact on daily living and mobility activities for most of the time.”

As regards Ground 3, Mr May notes that this “would require listening back to the recording of the proceedings. A copy was requested but unfortunately has not been received prior to the deadline for the submission. To ensure the appeal is dealt with in a timely manner, we respectfully request that this is subsumed.”

The Appellant also provided some further grounds of appeal, which Mr May addressed in some detail in his written submission supporting the appeal. He considered that some but not all of these extra grounds were made out. Thus, he argued, the FTT failed to give full consideration to the Senior President of Tribunals’ Practice Direction of 30 October 2008 (Practice Direction (First tier and Upper Tribunals: Child, Vulnerable Adult and Sensitive Witnesses)).

For completeness, I should add that in the light of the Secretary of State’s overall support for the appeal to the Upper Tribunal, the Appellant has no further or additional substantive observations. He does, however, make some submissions about remittal, which I refer to below.

I am accordingly satisfied that the First-tier Tribunal erred in law for the reasons summarised above. 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.

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 August 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 21 August 2023.

The new Tribunal will also note it is now dealing with the case as covering a closed period. This is because on 28 May 2025 the Appellant made a further claim for PIP, which it appears has yet to be decided. The FTT hearing the remitted appeal will therefore be dealing with the closed period from 13 April 2023 to 27 May 2025.

Finally, I return to the issue of the mode of hearing. In his reply to the submission by the Secretary of State’s representative, the Appellant supports the proposal that the matter be remitted to a fresh FTT for a new hearing. He adds:

I believe that the usual practice is for appeals remitted to the FTT for a fresh hearing to be listed for a conventional face-to-face oral hearing. However, this is not an absolute rule. I refer the Appellant’s request for a paper hearing to the District Tribunal Judge to determine in the light of all the circumstances.

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.