MM v Secretary of State for Work & Pensions

MM’s appeal against the Secretary of State’s decision of 14 May 2021 (as revised on 28 July 2021) is to be re-decided by a differently constituted panel of the First-tier Tribunal;

the First-tier Tribunal is to hold a hearing before re-deciding MM’s appeal;

if either party wishes to rely on any further written evidence or argument, these must be received by the First-tier Tribunal within one month of the date on which these directions are issued.

In these reasons, the Appellant is referred to as ‘MM’.

The background to this case, and the grounds of appeal to the Upper Tribunal, were was set out in the Upper Tribunal’s grant of permission to appeal against the First-tier Tribunal’s decision, as follows:

“9.

That leaves [MM’s] criticisms of the First-tier Tribunal’s determination that his condition merited zero points under the ‘planning and following journeys’ PIP assessed mobility activity. [MM’s] representative submitted to the Tribunal that he would only leave the house to attend appointments and only then if accompanied. Whenever he left the house, his mental health would deteriorate and anxiety increase significantly, whether he went to a familiar or unfamiliar place. The representative sought the 12-point descriptor for this activity (unable to follow the route of a familiar journey without another person).

10.

The First-tier Tribunal recorded [MM’s] oral evidence that “his mental health has got worse since May 2021 [when the Secretary of State’s PIP decision was taken]. He could get about then but now if he tried to go out alone, he would go all hot and sweaty”. The Tribunal interpreted this as “evidence from the appellant that at the time of the decision [he was] able to go out” (paragraph 64 of the Tribunal’s reasons). The Tribunal also found that there was no medical reason why [MM’s] ability to plan and follow journeys should be so limited as to satisfy any of the points-scoring descriptors for mobility activity 1, and that he did not describe overwhelming psychological distress at the date of the DWP’s decision (paragraph 65 of the Tribunal’s reasons).

11.

I have decided to grant [MM] permission to appeal to the Upper Tribunal on the ground that the First-tier Tribunal arguably gave inadequate reasons for its determination that [MM] ability to plan and follow journeys was not so limited as to justify any PIP assessment points:

(a)

one factor that the Tribunal appears to have relied on was [MM’s] oral evidence. Arguably, the Tribunal failed to explain why [MM’s] oral evidence was consistent with him scoring no points for this PIP assessed activity. That evidence was described by the Tribunal as being ‘able to go out’ but, on its own, that would not have been determinative. It did not address whether [MM] went out alone or accompanied nor whether his abilities varied depending on whether a journey was familiar or unfamiliar. Arguably, the Tribunal should have explained why [MM’s] oral evidence was inconsistent with him satisfying any points-scoring descriptors;

(b)

the Tribunal also found that there was no medical reason why [MM’s] ability to plan and follow journeys should have been so limited as to satisfy a points-scoring mobility descriptor. Arguably, that might have been sufficient had the Tribunal made clear findings about the nature of [MM’s] mental health problems but, at this point, an inconsistency in the Tribunal’s treatment of [MM’s] mental health-related limitations, in connection with daily living activities, arguably becomes relevant. The Tribunal’s decision notice expresses agreement with the Secretary of State that [MM] needed prompting to engage with other people (2 points). The Tribunal’s reasons also state that it agreed with the Secretary of State’s determination that [MM] scored 11 points for daily living activity limitations (which included two points for difficulties engaging with other people). However, the Tribunal’s reasons go on to contradict its decision notice as well as its confirmation of the 11 daily living points awarded by the Secretary of State. The reasons say that there was no medical reason why [MM’s] ability to engage with other people should be so restricted as to justify points under the ‘engaging with people’ assessed activity. So, it is arguably unclear whether the Tribunal accepted that [MM] had a disabling mental health condition. The Tribunal’s findings as to the severity of [MM’s] mental health condition might have influenced what was required in order for its reasons for refusing any mobility activity 1 points to be adequate. If the Tribunal found that [MM] mental health condition was severe enough to prevent him from engaging with other people without prompting, arguably it would have needed to explain why, despite that, it rejected his argument that his ability to plan and follow journeys was impaired to such an extent that mobility activity 1 points were justified (since in both cases he relied on similar mental health symptoms). But, as I have said, it is arguably unclear what the Tribunal made of [MM’s] mental health condition and that arguably rendered inadequate the brief statement given in the Tribunal’s reasons that there was no medical reason why [MM’s] ability to plan and follow journeys should be as limited as he claimed.”

Conclusion

12.

Permission to appeal is granted on the ground described in paragraph 11 above.”

The Secretary of State supports this appeal, and her representative invites the Upper Tribunal to set aside the First-tier Tribunal’s decision and remit this matter to that tribunal for re-hearing.

The Upper Tribunal does not have any record of the Appellant supplying a reply to the Secretary of State’s submissions.

I decide that the First-tier Tribunal’s decision involved an error on a point of law, as described in paragraph 11 of the Upper Tribunal’s permission determination. The First-tier Tribunal’s decision is set aside and MM’s case remitted to a differently constituted panel of that tribunal for re-hearing as provided for in the directions given before these reasons.