CWE v Secretary of State for Work and Pensions

The First-tier Tribunal must (by way of an oral hearing) undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the First-tier Tribunal’s discretion under Section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

The First-tier Tribunal hearing the remitted appeal shall not involve the members of the panel who heard the appeal on 9^th January 2024.

In reconsidering the issues raised by the appeal the First-tier Tribunal must not take account of circumstances which were not obtaining at 6^th June 2022, the date of the original decision of the Secretary of State under appeal. Later evidence is admissible provided it relates to the time of the decision: R(DLA) 2 & 3/01.

If the appellant has any further evidence to put before the First-tier Tribunal, that evidence should be sent to the regional office of His Majesty’s Courts and Tribunals Service within one month of the date on which this decision is issued. Any such further evidence must relate to the circumstances as they were at the date of the decision of the Secretary of State under appeal (see Direction 3 above).

The First-tier Tribunal hearing the remitted appeal is not bound in any way by the decision of the previous First-tier Tribunal. Depending on the findings of fact it makes the new panel may reach the same or a different outcome from the previous panel

This is an appeal by the appellant against the decision of the First-tier Tribunal given on 9^th January 2024. By its decision the tribunal dismissed the appellant’s appeal against the decision of the Secretary of State given on 6^th June 2022 that the appellant was not entitled to either component of personal independence payment (“PIP”).

Following an oral hearing of the appellant’s application for permission to appeal held on 12^th February 2025 by CPV, in which the appellant was represented by Mr. Jeremy Ogilvie-Harris of counsel, I granted permission to appeal on the grounds set out in Mr. Ogilvie-Harris’s skeleton argument and directed the Secretary of State to make a submission on the appeal within one month from the date on which the submission was sent to her. There was unfortunately some delay before the Secretary of State was able to make the submission and when it was made, it was accompanied by a validation request seeking an extension of time up to the date the submission was received. It is not clear to me that the extension has been formally granted and to the extent that may be necessary I grant it now.

There have been some further internal delays in determining the appeal and I apologise to the parties for that fact.

In the event the Secretary of State’s submission supported the appeal and not surprisingly the appellant made no observations in response. Her representative, UCL Integrated Legal Advice Clinic, did, however, ask for a reasoned decision on the ground that the appeal appeared to raise issues on which it would be helpful for the Upper Tribunal to give guidance, particularly in relation to fluctuating conditions. This decision contains such guidance as seems to me appropriate given the particular circumstances of the appellant.

The appellant’s claim to PIP was made on 18^th February 2022. In her PIP questionnaire submitted on 10^th March 2022 she stated that she was suffering from chronic fatigue syndrome/ME and had done so for about 14 months. She was taking lansoprazole and painkillers (paracetamol and dihydrocodeine) every day and waiting for an ultrasound and endoscopy and for a referral to a consultant. She explained that her condition affected the daily living activities of preparing food, eating and drinking, taking medication, washing and bathing, dressing and undressing, talking, listening and understanding, mixing with other people and managing money. She also explained that she had difficulties with the mobility activities of planning and following journeys and moving around. She produced evidence of her medical referrals and her prescriptions, which included a warning to take as little dihydrocodeine as possible "and only intermittently” because it was addictive. She made reference to her children, but did not then give their ages.

On 25^th May 2022 the appellant had a consultation by videolink with a healthcare professional (“the HCP”). She explained that she lived with her three children aged approximately 6, 5 and 19 months, for whom she was the sole carer. She was taking paracetamol daily and dihydrocodeine four days a week, which took some of the edge off. She said she had three good days a week and four bad ones. On a bad day “she will have pain and fatigue, exhaustion to do the daily tasks” (sic).

Entitlement to PIP is assessed by reference to the claimant’s ability to perform 10 daily living activities and two mobility activities, using a series of point-scoring descriptors. During the consultation with the HCP the appellant again explained her difficulties with those activities. The HCP’s opinion, in the light of what she was told by the claimant and her observations over the videolink, was that the appellant satisfied daily living descriptor 1(b), meaning that she needs to use an aid or appliance to be able either to prepare or cook a simple meal, daily living descriptor 4(b), meaning that she needs to use an aid or appliance to be able to wash or bathe, and mobility descriptor 12(b), meaning that she can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided. In the HCP’s opinion the appellant did not score points in relation to the other specified activities.

The decision maker at the Department of Work and Pensions (“the DWP”) agreed with the HCP’s opinion in a decision dated 6^th June 2022 and awarded the claimant scores of 2 points for descriptor 1(b), 2 points for descriptor 4(b) and 4 points for descriptor 12(b). As the decision letter explains, in order to be entitled to the daily living component of PIP it is necessary to score 8 points in respect of daily living activities to receive the standard rate and 12 points in respect of such activities to receive the enhanced rate. To be entitled to the mobility component it is similarly necessary to score 8 points to receive the standard rate and 12 points to receive the enhanced rate, the points being in respect of mobility activities. The decision was therefore that the appellant was not entitled to an award of either component of PIP.

The appellant applied for mandatory reconsideration of the decision. She completed the relevant form, which is dated 20^th July 2022, and sent it to the DWP. She gave some further information about her difficulties and added that she had difficulty with the daily activity of reading because of difficulty in concentrating. She had had a telephone assessment appointment with the Bristol ME Service on 22^nd June 2022 which led to a letter of that date to the appellant’s G.P. setting out the appellant’s problems and details of the consultation and confirming a diagnosis of ME/CFS. The letter is described in the papers as “the consultant’s letter” or “the specialist’s letter” and I shall follow that usage.

The consultant’s letter included the following:

“Problems:

Fatigue – long standing and persistent, causing significant impact, with post exertional [malaise] and slow recovery.

Cognitive dysfunction

…

Additional signs and symptoms

Muscle pain

Joint pain

Headaches

Painful lymph nodes without pathological enlargement

Sore throat

General malaise or ‘flu-like’ symptoms

Dizziness/not fainting

Nausea and bowel – significant weight loss

Palpitations in the absence of identified cardiac pathology

…

These symptoms are all in keeping with a diagnosis of ME/CFS.

Additional conditions:

Previously Depression

[The appellant] reports generalised muscle and joint pain. Whilst her pain and fatigue do interplay, they may vary independently of one another. She describes her fatigue as the more disabling of the two.

…

Activity and exercise: On better days [the appellant] is able to manage a small amount of food shopping, some contact with friends although mostly messaging/telephone, the school run and basic household and parental responsibilities. However, this level of activity is often unsustainable, and [the appellant] finds that she experiences significant crashes that render her bed bound for up to a week most months.

Relationships, communication and social activity: [the appellant] has a good friendship network, describing her friends as more like family. She has to rely on their help with childcare when she experiences a crash…

Occupational: [the appellant] has not worked for the past 6 years whilst she has focussed on raising her three young children (6, 5 and 19 months). However, she is clear that her health would prevent her from being able to manage any kind of paid employment.”

On 25^th July 2022 the DWP contacted the appellant by telephone to discuss the various PIP activities. On 1^st August 2022 the DWP made its reconsideration decision, but did not change the original decision. The appellant then brought her appeal to the First-tier Tribunal.

On 21^st September 2022 another healthcare professional produced a medical report for the purposes of the appellant’s claim to universal credit. The advice given was that the appellant meets the criteria for limited capability for work related activity because on the basis of the evidence considered, which included a specialist letter from Bristol ME Services, it appeared that the appellant could not mobilise 50 metres repeatedly, within a reasonable timescale and unaided by another person because of significant discomfort or exhaustion due to chronic fatigue syndrome. Although the “specialist letter” is said to be dated July 2022, it is also said to confirm the diagnosis of ME/CFS and so appears to be the consultant’s letter to which I have referred.

The appellant’s appeal form was prepared with assistance from Citizens Advice and included further material relating to her difficulties. It was also accompanied by a “Diary of my Day” dealing with 22^nd August 2022 and a statement in support from a long-standing friend. Citizens Advice prepared a submission dated 6^th March 2023 in anticipation of a hearing shortly to take place in which each of the daily living activities previously in issue was addressed in some detail, together with both mobility activities. Further evidence was provided in the form of evidence of the appellant’s blue badge entitlement, a further letter from the family friend, a current prescription list and an occupational therapy assessment dated 1^st December 2022. It appears that, among other adjustments, the dihydrocodeine had been replaced as a painkiller with naproxen, which was not said to be addictive but which carried the warning “Use in short courses, as infrequently as possible”.

The occupational therapy report contained the following relevant passages:

“[The appellant] has chronic fatigue syndrome (CFS), ongoing joint pain and extreme fatigue constantly… [The appellant] takes paracetamol and codeine for pain relief.

…

Applied for PIP but was refused so currently appealing this, feels she has had little help or support as people look at her and think she’s ‘fine’ but actually feels unable to cope.

Goes shopping with her friend every few days, prefers it this way as cannot think to plan ahead for a big shop, struggles with memory/planning and thinking due to ME.

…

[The appellant] independently mobile [but] fatigues easily, says her fatigue levels fluctuate daily however at times struggles to get out of bed or get the children to school. School have not been understanding of her difficulties and children being late.

…

[The appellant] is struggling with her parental role and for managing her domestic tasks at home, she would benefit from some social input to support her with this. At present she feels that she has been left and falling between the cracks of services. She feels that she is relying on her 7 year old daughter to do some of the tasks around the house and doesn’t feel that she can play or offer her children 1:1 time as she is so fatigued.

[The appellant] is struggling to stand to wash up/cook/bathe or read to the children, so a perching stool up and downstairs, she’s also struggling to get in and out of the bath due to joint pain and weakness.”

The statutory provisions governing PIP are to be found in Part 4 (ss.77 to 95) of the Welfare Reform Act 2012 and the Social Security (Personal Independence Payment) Regulations 2013, S.I. 2013 No. 377, as currently in force (“the PIP Regulations”).

In summary, s.77 of the Act introduces PIP and provides that entitlement may be entitlement to the daily living component or the mobility component. S.78 sets out a framework for assessment of entitlement to the daily living component by reference to daily living activities, much of the detail of which is to be prescribed by regulations, and s.79 similarly sets out a framework for assessment of entitlement to the mobility component by reference to mobility activities, again much of the detail of which is to be prescribed. Reg. 3 of the PIP Regulations then identifies daily living activities as the activities set out in column 1 of the table in Part 2 of Schedule 1 and mobility activities as the activities set out in column 1 of the table in Part 3. Regs. 5 and 6, together with columns 2 and 3 of the table in Schedule 1, provide for the scoring of points and the determination of entitlement as summarised in paragraph 7 above.

There are two additional points to be taken into account. First, reg. 7 provides that the applicable Schedule 1 descriptor is, where applicable, the descriptor which is satisfied on over 50% of the days of the required period and makes further provision to the effect that if more than one descriptor is satisfied on over 50% of the days of that period, the applicable descriptor is the one which scores the highest number of points, and if no descriptor is satisfied for over 50% of the days but two or more point-scoring descriptors are satisfied for periods which together amount to more than 50% of the days of the required period, the applicable descriptor is the one which is satisfied on the greater or greatest number of days or, if the proportion is equal, the descriptor which scores the highest number of points. The “required period” is defined by the combined effect of reg. 7(3) and reg. 14, in the appellant’s case, as the period from three months before the date of her claim to nine months after it.

Secondly, reg. 4 provides:

“…

(2A)

Where C’s [i.e., the claimant’s] ability to carry out an activity is assessed, C is to be assessed as satisfying a descriptor only if C can do so –

(a)

safely;

(b)

to an acceptable standard;

(c)

repeatedly; and

(d)

within a reasonable time period.

…

(4)

In this regulation –

(a)

“safely” means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity;

(b)

“repeatedly” means as often as the activity being assessed is reasonably required to be completed; and

(c)

“reasonable time period” means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity.”

The issue which the tribunal was required to decide was, in effect, whether the decision maker had correctly assessed the Schedule 1 descriptors applicable to the claimant in the light of the available evidence and applying regs. 4 and 7.

Unfortunately, although the appeal was listed for a video hearing on 7^th August 2023, it transpired at that hearing that the appellant had never received what was described as “a copy of the DWP’s bundle including the claim form and the Health Care Assessment report”, and not surprisingly the tribunal adjourned the hearing for the appellant to be supplied with the documents.

When the appeal came to be heard, the appellant gave oral evidence as to her ability to carry out the relevant activities. The tribunal then dismissed the appeal, deciding that the appellant scored 4 points for daily living activities and 4 points for mobility activities, as determined by the decision maker.

The tribunal’s statement of reasons includes the following:

“Findings of Fact

13.

The appellant has a diagnosis of chronic fatigue syndrome/ME.

14.

The appellant saw Bristol ME Services on 22/06/2022. They reported the following which is a correct synopsis of how the appellant was functioning in the period to be considered:-

[Here the tribunal set out what was said in relation to activity and exercise in the consultant’s letter as set out in paragraph 10 above.]

15.

The appellant did not have any mental health problems that were affecting her in the period to be considered. She therefore cannot score any points for requiring prompting as she does not suffer a lack of motivation.

…

17.

The appellant is able to safely drive an automatic unadapted car. She can use satnav to navigate herself to locations. The appellant prefers to have someone with her but does not suffer overwhelming psychological distress and does not have a significant cognitive difficulty that would prevent her from safely following directions.

18.

The appellant is able to undertake DIY and gardening, with pacing herself and does this with her friend. She also goes food shopping with this friend, walking around supermarkets either holding the trolley or pushchair.

19.

The appellant has seen occupational therapy since the decision. This is still relevant as she is not claiming to have improved… The appellant does not have assistance with the children for the majority of the time and due to the age of the children, the children require active parenting. The oldest child does try and assist but the main parental role, particularly caring for the toddler, is done by the appellant.

20.

The appellant goes out regularly. She does the school run most of the time and does shopping with her friend every few days.

21.

The appellant does not use any walking aids but does fatigue easily.

22.

The appellant has been placed in the support group and has a blue badge.

23.

The appellant claimed in oral evidence to be far more limited than in her claim form, HCP assessment and in her specialist’s letter and OT report. The report of the specialist is most likely to be a correct representation of the appellant’s functioning in addition to the HCP report.

24.

The appellant does not take strong painkillers each day. She does have painkillers prescribed.

25.

The appellant is able to self care. She has the range of movements necessary to undertake personal care, particularly with the use of aids for cooking and washing.

26.

The appellant can take nutrition unaided. She confirmed she has not experienced weight loss. If the appellant was not taking on adequate calories, she would lose weight from the calorie deficit.

27.

The appellant knows what medication she is to take and does not have a cognitive difficulty. She has not been referred to a memory clinic.

…

33.

The appellant does go out. She goes shopping and was in a park with her children when [rung] by the DWP. The appellant is walking distances in excess of 200 metres. She has been scored points for being limited to 50-200 metres. The appellant can certainly do at least that for the majority of the time. Should the appellant have been more limited than this, the specialist would have highlighted this in his report as it is clinically relevant for someone as young as the appellant.

Reasons for the decision

…

35.

We then directed ourselves on the rules on Personal Independence Payment. We reminded ourselves that the Tribunal must consider what activities the Appellant could do throughout the required period. That period began 3 months before the date of the Appellant’s claim as she had the effects of the conditions she was claiming on the basis of for more than 3 months prior to date of claim. It then extended to 9 months after the date of the Appellant’s claim.

36.

We then directed ourselves as to the variability rule set out in regulation 7 …

37.

We also directed ourselves to section 2 of Personal Independence Payments (Amendment) Regulations 2013 which inserted Regulation 4

…

38.

We found that the appellant in her appeal hearing and submission was attempting to overstate her limitations in a way that was both not consistent with previous position but also not consistent with the other evidence available, such as the consultant’s letter and the letter from her friend talking about them building beds together and undertaking gardening, albeit with pacing.

39.

We found that the appellant, in stating that she was in bed most of the time and that she could not do anything for her children, such as get them dressed and that her children would put away food shopping that was done on line, was not credible or consistent. The appellant’s youngest child was 19 months. Even if the oldest child was very helpful, the child would be in school for much of each day. The reports state that the appellant was undertaking the school run most of the time and the OT report states that the school was not being helpful. This is not consistent with saying that the teacher comes to the car to get the children out of the car for school. Further, the appellant cannot be not getting out of bed most of the time and doing an almost daily school run.

40.

The appellant was reported to be a sole carer numerous times and having limited support. In the appeal hearing she then claimed that her children were in essence being raised by others and/or raising themselves. These positions are opposites and thus both cannot be true.

41.

We find that the appellant has been so inconsistent that her evidence cannot be relied upon. We therefore look at the other evidence available and prefer the medical and OT evidence. We accept of course that the appellant has the diagnosis claimed and that it causes her fatigue. We accept that normal day to day activities are more tiring for her than those without the condition and that periodically, this becomes too much for her and that for around a week most, not all, months, she needs to rest in bed. This is not the majority of the time.

…

43.

The appellant previously suffered from depression. The specialist claimed that she stated that that issue was not affecting her any longer and the appellant was not on any medication for any mental health condition. The appellant, therefore, we find, did not have a mental health condition in the period to be considered. Indeed, she did not claim any. She therefore cannot score any points for the mental health activities.

44.

The appellant has no cognitive, intellectual or sensory impairments. The appellant is a driver. She claims she is a safe driver and it is relevant that her specialist has not caused her to refer herself to the DVLA. The appellant cannot score any points for any of the activities relating to understanding, planning or memory therefore.

45.

The appellant, by attending supermarkets every few days and taking her children to the park is clearly walking good distances. The appellant has been given points for being limited to 50-200 metres. The appellant, by virtue of attending just supermarkets, must be [walking] in excess of that. Further, using the medical expertise of the Tribunal, we find that it would be clinically relevant if the appellant was not able to walk 50 metres and would be reported in the specialist’s letter. We accept of course that the appellant would be more limited than someone without her condition, we just find that she is not limited to less than 50 metres.”

The grounds of appeal, as set out in Mr. Ogilvie-Harris’s skeleton argument and on the basis of which I gave permission to appeal, are as follows:

As noted in paragraph 4 above, the Secretary of State supports the appeal. That is on the basis that the tribunal failed to make sufficient findings of fact and to give adequate reasons for its decision. In substance, the Secretary of State supports the appeal on the basis of grounds 2, 3, 4 and 5 of the grounds of appeal and therefore submits that the matter should be remitted to a new and differently constituted tribunal. It is submitted that the matters raised by the remaining grounds of appeal can be considered by the new tribunal as part of its general consideration.

Also as noted in paragraph 4 above, the appellant’s representative is particularly anxious that attention should be given to the fluctuating nature of the appellant’s condition.

I begin with the tribunal’s assessment that the appellant’s evidence cannot be relied on. The tribunal has given reasons for its conclusion, which I summarise as: the inconsistencies between the appellant’s original account of her limitations on the one hand and the case put in her submission to the tribunal and her oral evidence on the other; the inconsistencies between the appellant’s evidence and other available evidence; and the internal contradictions in the appellant’s evidence such as her statements that she was in bed most of the time but took the children to school most days and her statements that she was the sole carer for her children but they were in essence being brought up by others or were bringing themselves up.

For the purposes of this decision I proceed on the basis which was therefore adopted by the tribunal and prefer the medical evidence while also having regard to the other available evidence. It was not contended that the tribunal had erred in law in making its assessment and taking that approach. In the absence of such a contention and in the light of the Secretary of State’s support for the appeal I have not found it necessary to listen to the recording of the tribunal hearing in order to determine the appeal.

Turning to the grounds of appeal themselves, I begin with ground 2, which relates to the tribunal’s finding that the appellant did not have cognitive dysfunction. This is expressed in terms of findings of fact of lack of “significant cognitive difficulty” in paragraph 17 of the statement of reasons and having “the cognitive ability to budget” in paragraph 32. The reasons given for those findings despite the numerous references in the appellant’s evidence to forgetfulness, becoming overwhelmed, brain fog, mental exhaustion and confusion appear to be the general rejection of the appellant’s evidence, the absence of a referral to a memory clinic (paragraph 27), the absence of any “mental health condition” (which it is said the appellant did not claim) (paragraph 43) and her being a safe driver (paragraph 44).

The tribunal did not, however, refer to the recording of cognitive dysfunction in the consultant’s letter and the statement that it was a symptom in keeping with a diagnosis of ME/CFS, despite describing the letter as being “most likely to be a correct representation of the appellant’s functioning in addition to the HCP report” (paragraph 23). Nor did the tribunal refer to the statement in the occupational therapy report that the appellant could not think to plan ahead for a big shop and struggled with memory, planning and thinking as a result of her ME. The submission to the tribunal included links to websites which would support the proposition that problems of this nature are associated with chronic fatigue syndrome. It is not clear whether or not the tribunal accepted that as a general proposition.

It is of course the case that the HCP did not observe any difficulties with the appellant’s mental state at the assessment and specifically recorded that there was no evidence of cognitive impairment, the appellant answered all the questions fully and appropriately and the appellant did not appear anxious or distressed (the last point being disputed by the appellant). I note, however, that the HCP did not have the advantage of having seen the consultant’s letter, since the consultation had not yet taken place. Still less had the HCP seen the occupational therapy report.

The net effect, in my view, is that there is a conflict of medical evidence on the question whether the appellant suffers from cognitive dysfunction. A tribunal must consider all the evidence. It is then entitled to prefer one piece of medical evidence to another, but must give reasons for doing so. This is the point recently made again in MB v. Secretary of State for Work and Pensions [2024] UKUT 271 (AAC), which is cited by Mr. Ogilvie-Harris. Here, the tribunal does not appear to have recognised the existence of a conflict and, even putting to one side the appellant’s own evidence, certainly has not given reasons for preferring the HCP assessment to the evidence of the consultant’s letter and the occupational therapy report. In that respect, the tribunal made an error of law.

This leads to consideration of ground 3 of the grounds of appeal, which relates to the tribunal’s self-direction that it need not consider mental health related activities or descriptors. This ground, as the skeleton argument made clear, is in effect a consolidation of the tribunal’s statements that the appellant could not score any points for requiring prompting, because she did not suffer a lack of motivation (paragraph 15), that the appellant could not score any points for “the mental health activities” (paragraph 43) and that the appellant could not score any points for the activities relating to understanding, planning or memory (paragraph 44).

There are point-scoring descriptors based on a need for prompting in daily living activities 1 to 6 and 8 to 10 and in mobility activity 1. “Prompting” is defined in Part 1 of Schedule 1 to the PIP Regulations as “reminding, encouraging or explaining by another person”. There are no activities in the Schedule which are specifically described as “mental health activities”. A mental health condition might cause problems with communicating verbally (daily living activity 7) or reading and understanding signs, symbols and words (daily living activity 8), but so might deafness or blindness, as is clear from the descriptors. It might well be relevant to daily living activity 10 (making budgeting decisions) and “overwhelming psychological distress” is a part of a descriptor relating to daily living activity 9 (engaging with other people face to face) and two descriptors relating to mobility activity 1 (planning and following journeys). Mobility activity 1 is the only activity which includes planning in the description of the activity itself and daily living activity 8 is the only activity which includes understanding in the description of the activity itself. Memory is not expressly included in the description of any activity or in any of the descriptors relating to any activity, although clearly a failure of memory may give rise to a need for prompting.

This means that, while it is clear that the tribunal has taken a blanket approach to the appellant’s ability to satisfy any descriptor referring to prompting and has decided that none of them can be satisfied, it is not clear which activities have been treated as mental health activities or activities relating to understanding, planning or memory unless there is a specific finding of fact which necessarily identifies the activity or descriptor the tribunal has in mind. Where there is such a finding, it is often based on the tribunal’s finding that the appellant did not have cognitive dysfunction. So, for example, although the appellant says (and said in her PIP questionnaire) that she uses a dosette box to assist with her medication the tribunal, without addressing that evidence, states in paragraph 27 that the appellant knows what medication she is to take and does not have a cognitive difficulty. Similarly, in paragraph 32 the tribunal states that the appellant has the cognitive ability to budget and impliedly rejects, without referring to, the friend’s evidence that she and the appellant remind each other to eat, to keep track of things and to pay bills, although other parts of the friend’s evidence are relied on. Paragraph 17 also refers, in conjunction with a reference to the appellant’s ability to use a satnav, to the absence of a significant cognitive difficulty which would prevent the appellant from safely following directions, but leaves it unclear how that relates to her ability to plan the route of a journey.

I recognise that the tribunal’s findings of fact do address each of the daily living activities and both the mobility activities. Nevertheless, I am left uncertain as to the activities and descriptors in relation to which the tribunal has applied its self-direction as to mental health activities and activities relating to understanding, planning or memory. Coupled with the error of law I have already identified as respects cognitive dysfunction, I would if necessary conclude that this constitutes a further error of law. It is not, however, necessary to reach such a conclusion in the light of my further conclusion relating to prompting.

As respects prompting generally, the definition of prompting does not refer to any cognitive difficulty as such or to a need for prompting specifically because of a lack of motivation. It also appears that the tribunal has proceeded on the basis that lack of motivation can only exist for the purposes of the descriptors if it is attributable to a particular mental health condition. Certainly lack of motivation as a result of a mental health condition such as depression may be one reason why reminding, encouraging or explaining is required, but straightforward forgetfulness or disinclination to make the effort because of serious fatigue may, on the face of the words used, be others. The effect of the tribunal’s approach is that it did not consider the possibility that the appellant’s fatigue was such as to give rise to a need for prompting in relation to the many activities in respect of which prompting features in a descriptor. It has recently been made clear, in EW v. Secretary of State for Work and Pensions [2025] UKUT 307 (AAC), that consideration must be given to a claimant’s ability to carry out the various activities at the time of day at which it is reasonable to carry them out, having regard to the fatigue experienced by the claimant. I conclude that the tribunal’s approach constituted a further error of law.

The combined effect of the tribunal’s errors in relation to cognitive dysfunction and prompting is clearly capable of affecting its conclusions on many of the activities and is therefore material.

I then turn to ground 4, which is concerned with mobility activity 2 (moving around). The tribunal made findings of fact in relation to this activity in paragraph 33 and gave its reasons in paragraph 45. In summary, the tribunal found that “by attending just supermarkets”, which the appellant did “every few days”, she was walking in excess of 200 metres, but did not disturb the points award based on the appellant’s walking being limited to 50 to 200 metres. The tribunal also, rightly, noted in paragraph 22 that the appellant had been placed in the support group for universal credit purposes on the basis of limited capability for work-related activity consisting of inability to mobilise 50 metres repeatedly. It did not, however, refer to that evidence when making its finding about the appellant’s walking ability or giving its reasons.

Regs. 4 and 7, referred to in paragraphs 17 and 18 above, are of particular importance here. There is no finding as to whether “every few days” was construed as meaning the majority of the time, which is certainly not self-evidently the case. Clearly, on the basis of the consultant’s letter and the evidence about taking the children to school, the appellant is not in bed most of the time but that leaves a large area of possibility as to her walking ability for what seems to be the majority of the time between the days on which she feels able to go to the supermarket and the days on which her chronic fatigue syndrome has caught up with her to such an extent that she is effectively bed-bound.

By way of illustration of the effect of reg. 7, on the factual basis adopted by the tribunal it appears that on seven days out of a month of 30 days the appellant satisfies either mobility descriptor 2(e) (can stand and then move more than 1 metre but no more than 20 metres), either aided or unaided) or perhaps less probably, descriptor 2(f) (cannot, either aided or unaided (i) stand; or (ii) move more than 1 metre). Either descriptor carries a score of 12 points. One might assume that out of the remaining 22 days the appellant goes to the supermarket every third day, which would be a maximum of 8 days, and on those days she satisfies descriptor 2(a) (can stand and then move more than 200 metres, either aided or unaided). (I note that she refers to leaning on the trolley or pushchair.) On the remaining 14 days she falls between the two extremes. If on 9 of those days she satisfies descriptor 2(c) (can stand and then move unaided more than 20 metres but no more than 50 metres), for which the score is 8 points, she will satisfy descriptors entitling her to the mobility component on the majority of days in the month (16 days), even if on the remaining days she can walk between 50 and 200 metres, as found by the decision maker. If the pattern of that month is repeated throughout the required period, the appellant is entitled to the mobility component at the standard rate. It is therefore important to make findings of fact as to the pattern of the appellant’s walking ability throughout the month. Some light might be shed on the situation if, bearing in mind that the appellant seems to drive the children to school on the majority of school days, it is established how far away the car is parked and how close to the school she can park if, as seems unclear, she takes the children into school.

In addition, it is important to consider the reg. 4 factors. The tribunal did not make any express findings as to the effect on the appellant of walking between 50 and 200 metres (for example, in terms of pain or additional fatigue), her ability to repeat walking that distance within a reasonable period or the speed at which she would manage to walk that distance and whether she would need to rest before completing the distance. These are the sorts of matters identified in KN v. Secretary of State for Work and Pensions (PIP) [2016] UKUT 261 (AAC), to which the skeleton argument refers. It may be that the tribunal regarded those points as covered by its finding that the consultant’s letter would have recorded the fact if the appellant was not able to walk 50 metres, but that is not necessarily to be inferred.

In my view, the tribunal ought also to have explained why it apparently did not attach any weight to the fact that that the appellant was in the support group for the purposes of universal credit, as noted in paragraph 38 above. It is true that the tests for the different benefits are not identical, but there are common elements, including the ability or inability to move more than 50 metres within a reasonable timescale. The appellant ought fairly to be enabled to understand why having been allocated to the support group was apparently irrelevant to her PIP claim.

For those reasons I have come to the conclusion that the tribunal erred in law in failing to make sufficient findings of fact and to give adequate reasons in relation to mobility activity 2. This error was also clearly material.

The effect of my conclusions in relation to grounds 2, 3 and 4 of the grounds of appeal is that the appropriate way forward here is, as submitted by the Secretary of State, to set aside the tribunal’s decision and to remit the appeal to be reheard. It is therefore not necessary for me to consider in detail the remaining grounds of appeal, but I offer some comments in relation to those grounds in the hope they may be of assistance.

Ground 5 concerns the appellant’s ability to carry out the various activities “reliably”, which I take in this context to be shorthand for “to the standard required by reg. 4”. To the extent that the skeleton argument suggests that the reg. 4 requirements cannot be satisfied at any time because the effect of carrying out the activities is to render the appellant bedbound for a week every month, this approach is difficult to reconcile with the fluctuating nature of the appellant’s condition, which leaves her able to go to the supermarket every few days. The pattern does not seem to be one of ever-increasing fatigue until the appellant eventually collapses. The new tribunal may wish to look more closely at what triggers the collapse. It will also need to take into account reg. 7, which focuses on what a claimant can do on a particular day. It is nevertheless the case that accumulated fatigue over the course of the day can be relevant to whether a claimant is able to carry out daily living and mobility activities at the time of day when it is reasonable to carry out those activities, as explained in AE v. Secretary of State for Work and Pensions (PIP) [2024] UKUT 381 (AAC), cited in the skeleton argument in support of this ground.

Ground 6 raises the possibility that the appellant’s ability to carry out certain activities was the result of the specific impetus arising from the need to take care of the children, drawing upon the decision of Judge Hemingway in GG v. Secretary of State for Work and Pensions (PIP) [2016] UKUT 194 (AAC). That is a decision which relates to the descriptors which refer to prompting. It is to the effect that if a claimant is able to carry out a particular activity under some particular pressure, it does not follow that if the claimant does not do so on other occasions it is a matter purely of choice. The explanation may be that the genuine difficulties arising from the claimant’s health condition are not being overcome by the specific impetus and the tribunal needs to assess why activities are not being performed on days when that is the case.

It is to be noted that in GG the impetus in question was described as “specific or unusual” and that what the tribunal ought to have considered was whether, on days when the impetus was not present, the claimant could carry out the activities or was prevented from doing so by his health conditions and whether, if he was so prevented, those days existed for more than 50% of the time. That is to say, it is not a case which deals with the situation when any specific impetus is present so frequently that on the majority of days the claimant carries out the relevant activities. It is therefore not easy to see how it assists in the present case. I do not regard it as an error of law for the tribunal not to have referred to the possibility that what it found to be the appellant’s ability to perform relevant activities on the majority of days was the result of a specific impetus. That is not to say that the new tribunal should not consider that possibility if it appears relevant when making its findings of fact.

The final ground of appeal relates to the activity of taking nutrition. The difficulty with the tribunal’s findings of fact and reasons here is that, having decided it could not rely on the appellant’s evidence, it accepted her evidence at the hearing that she had not suffered weight loss and did not refer to medical evidence in the form of the consultant’s letter that she had suffered significant weight loss, which was supported by the letter from the appellant’s friend. In addition, the tribunal did not expressly address the appellant’s case that she could not use standard cutlery owing to pain in her hands. As against those points, the appellant did not refer to an inability to use standard cutlery in her PIP questionnaire, although she did say that pain and fatigue meant she could not hold a knife steady when preparing food and that she was often too tired to eat or needed prompting from her children. The HCP report records that she uses normal cutlery, but that is accompanied by the statement that she uses scissors to cut cooked food, and eats on four days a week.

It is understandable that the tribunal accepted the appellant’s own oral evidence as to weight loss, given that it was not supportive of her claim, and I would not have concluded that it was in error in doing so without reference to the consultant’s letter. With some hesitation, however, I have come to the conclusion that the tribunal did not consider whether, on the footing that the appellant had not lost weight, that was because she was in part using the aid of a pair of scissors when eating and that it ought to have done so. In reaching that conclusion I bear in mind that “aid” is defined in reg. 2 of the PIP Regulations to mean “any device which improves, provides or replaces [the claimant’s] impaired physical or mental function” and Part 1 of Schedule 1 defines “take nutrition” to include cutting food into pieces.

Mr. Ogilvie-Harris accepted that this ground alone would not constitute a material error, but of course it does not stand alone. The overall effect of my decision is that a new tribunal will need to consider the appellant’s claim afresh and that will include consideration of her ability to take nutrition both without an aid and without a need for prompting.

For the above reasons, I set aside the decision of the First-tier Tribunal and remit the matter for reconsideration in exercise of the power given by s.12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007. The case is plainly one in which it is appropriate to direct that the members of the First-tier Tribunal who are chosen to reconsider it should be different from those who made the previous decision, so that the members of the new tribunal will come with fresh minds to the case, and I give that direction pursuant to s.12(3)(a).