BM v The Secretary of State for Work and Pensions

This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

The members of the First-tier Tribunal who reconsider the case should not include any of those who were previously involved in considering the claimant’s appeal.

The legislation requires that the tribunal can only base their decision on circumstances as they were at the date of the original decision by the Secretary of State.

The parties should send any further evidence upon which they wish to rely to the HMCTS regional tribunal office within one month of the issue of this decision. Any further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State.

The new First-tier Tribunal are not bound in any way by the decision of the previous tribunal and may reach the same or a different outcome depending on the findings of fact that they make.

On 31 January 2025 Judge West gave the claimant permission to appeal on the grounds set out in her grounds of appeal. The Secretary of State supports the appeal, and consents to a decision without reasons. The claimant does not agree to a decision without reasons and has asked for a telephone hearing of her appeal.

In accordance with rules 2 and 34 of the Upper Tribunal Rules I have had regard to the claimant’s wish for a hearing but have decided not to hold one; this is for the following reasons: first, the issues for me are issues of law; secondly, I am deciding the appeal in the claimant’s favour; thirdly, the only course that I can sensibly take is to remit the claimant’s case to be re-decided by a new tribunal; and the claimant will have the opportunity to participate in a hearing before the new tribunal. What follows are my reasons for the decision I have made.

The claimant suffers from a number of medical conditions, including osteoarthritis and rotator cuff tendinopathy. She was awarded a Personal Independence Payment (PIP) with effect from 8 November 2023; this was pursuant to a decision of the DWP on 22 April 2024 taken upon a mandatory reconsideration of her claim to PIP. The decision maker decided that the claimant needed an aid or appliance in connection with the activities of preparing food, washing and bathing, managing toilet needs, and dressing and undressing.

The claimant appealed, arguing that she should have been awarded more points in the Personal Independence Payment assessment. She said that she needed help with dressing and undressing and with washing, bathing and showering and getting in and out of the bath; she could not cook a meal because of difficulty with peeling vegetables and holding saucepans and hot oven dishes. She submitted various pieces of medical evidence.

The appeal came before the First-tier Tribunal on 27 September 2024. The claimant did not attend. It is clear from the statement of reasons that the tribunal approached the case in a thorough and conscientious manner. They agreed with the Secretary of State that the claimant needed an aid or appliance in connection with the activities of preparing food, washing and bathing, managing toilet needs, and dressing and undressing. They confirmed the Secretary of State’s decision and dismissed the appeal.

The claimant appealed on the grounds that the tribunal had not looked properly at her appeal and had not awarded the correct points, saying that she could not dress her upper body or wash her upper body without help. It is implicit in this that she considered she should have been awarded four points rather than two in respect of both washing and bathing and dressing and undressing. This would have raised her score to 12 points, entitling her to the enhanced rate of the daily living component of PIP.

The extent of the claimant’s disabilities is a question of fact. I can only interfere with the tribunal’s decision if the decision involved an error of law. But the law requires a tribunal to give an adequate statement of their reasons for reaching a particular decision. A statement of reasons is adequate if it enables the reader to see why the tribunal reached the conclusion they did, in sufficient detail to show whether they applied the law correctly.

In my view there are some inconsistencies and unexplained conclusions in the tribunal's statement of reasons which do not enable the reader to understand why the tribunal reached their conclusion on some points. These may be due to the lack of an opportunity for the tribunal to discuss the position with the claimant.

In relation to the claimant’s medical condition generally, the tribunal accepted that she had pain in her joints and restricted movement in her right shoulder (which is the shoulder affected by rotator cuff tendinopathy); she would have difficulty lifting her right arm above her head.

In the case of washing and bathing, the tribunal found that because of pain the claimant could not use both hands to wash her hair; they found that the claimant could get in and out of a bath using a rail, which comes within the definition of using an aid. The tribunal did not disturb the Department's finding that the claimant needed an aid to be able to wash or bathe. It is not clear whether they thought that the claimant needed to use an aid in order to wash herself as well as to get in or out of a bath and, if so what kind of aid was required. They had found that she could apply cream to her upper body, which suggests that they thought that she could wash her upper body as well, but this is not made clear. I therefore agree with the Secretary of State that the tribunal have failed to explain adequately how they reached the decision that the claimant required the use of an aid to wash, or how the use of an aid would help the claimant overcome her difficulties in washing her upper body.

In the case of dressing the tribunal accepted that the claimant had painful hands, shoulders, arms and knees and restricted movement in her right shoulder. They found that the evidence did not support the conclusion that her left arm was similarly restricted such that she would be unable to dress her upper body, for example putting clothes over her head. They nevertheless found that it would be reasonable to have aids to assist her to dress without help, but did not indicate what form of aid they had in mind. Here again I agree with the Secretary of State that the tribunal's reasoning is not adequate because it does not explain how the use of an aid would overcome the claimant’s problems with dressing her upper body.

I must therefore set the decision aside. It is not appropriate for me to remake the decision, which is best done with the expertise of a First-tier Tribunal panel. I therefore remit the case to be decided by a freshly constituted tribunal. I have given some directions at the beginning of this decision. I stress that I have been concerned only with the legal question whether the tribunal gave adequate reasons for their decision. I have not reached any conclusion on what descriptors the claimant met and nothing in my decision is intended to suggest that I have. I have directed a hearing; it is very much in the claimant’s interest to attend it, but she is not obliged to.

In her submission to the Upper Tribunal the claimant has said that she now has plantar fasciitis and can hardly walk. If this amounts to a change in the claimant’s condition since 2 February 2024 (the date of the Department’s original decision on her claim) it is not legally relevant to her current appeal. This is because of section 12(8)(b) of the Social Security Act 1998, which says that in deciding an appeal the First-tier Tribunal shall not take into account “any circumstances not obtaining at the time when the decision appealed against was made”. (Technically, the decision was made on 2 February and revised on 22 April 2024.) If the claimant considers that her entitlement to PIP has become greater since February 2024 because of a worsening of her medical condition, the correct course is for her to approach the Department and ask for a review of their decision on the grounds of a change of circumstances. This will not in any way prejudice her arguments in this appeal, which are that she was already entitled to a larger award of PIP than the Department gave her.