HW v The Secretary of State for Work and Pensions

These directions may be supplemented or changed by a District Tribunal Judge (DTJ) giving listing and case management directions.

The Secretary of State is to provide a fresh Response to the tribunal, setting out the decision under appeal as required following a departmental telephone ‘offer’, as clarified by Upper Tribunal Judge Wright in DO v SSWP (PIP) [2021] UKUT 161 (AAC).

The appellant’s representative has the opportunity to respond to that, or make further submissions, within one month of that Response being sent to him.

The case will be listed as an oral hearing in front of a freshly constituted tribunal. The appellant is advised to attend.

The new panel will make its own findings and decision on all relevant descriptors.

In this appeal Mr Khan acts for the appellant, and Miss Howard for the Secretary of State, and I thank both representatives for their assistance with this appeal. I am grateful in particular to Miss Howard for the background set out in this section, from which this introduction is substantially taken, and for Mr Khan for his thorough analysis of the Statement of Reasons.

My references to legislation are, unless otherwise stated, to the Social Security (Personal Independence Payment) Regulations 2013.

This decision concerns a Personal Independence Payment (PIP) award that has been in payment to the appellant from 13/02/2016. The award was originally of the mobility component at the standard rate, for problems meriting 10 points under Activity 12d, and only 6 points for the daily living component, insufficient for an award. In a decision made on 13/02/2017, an additional 2 points were awarded from the original effective date, awarding the standard rate of both components from the original date of claim, 23/03/2016.

On 24/6/2020 the appellant asked for that award to be looked at again (she made a supersession request) on the basis that her condition had deteriorated.

Following an assessment by a Health Care Professional, a Decision Maker (DM) found that she scored only 6 points under the daily living activities, which was insufficient to make an award of that component. The mobility award remained at the standard rate. In a Mandatory Reconsideration of that decision, another DM decided that the decision remained unchanged. The claimant lodged an appeal against the decision to the First-tier Tribunal (FtT).

The appeal was before a tribunal on 2/12/2024. This appears to have been a second hearing following a successful appeal to the Upper Tribunal; I am not certain about this, and have not read a decision, but the papers lead me to this conclusion, and also that it may have been before another judge with a similar name to mine, Judge Grey KC, and I mention that to avoid confusion.

The tribunal with which I am concerned heard evidence from the appellant on two days. The decision was made that the appeal was allowed “in part”; that is because the tribunal awarded the standard rate of the daily living component, however, a point to which I will return is that the DWP response to the appeal to the FtT, at the page marked G, shows a telephone call between the appellant’s nephew and the Department about the supersession application in which the Department made an ‘offer’ of the standard rate of the care component. It was stated that a decision did not need to be made there and then, and a call was arranged for the following day to further discuss the offer. That call was also noted, and whilst the appellant’s decision (through her nephew) was not to accept the ‘offer’ as she wished to appeal (seemingly in the hope of securing the enhanced rate of the mobility component) there is case law to the effect that such an offer is as a matter of law a revision of the decision, and the position of the Department in this appeal should have been that of supporting an award of the standard rate of both components from the outset. The documents I have seen suggest that no one there on that day, including the Department’s Presenting Officer, referred to this important matter.

The appellant sought permission to appeal to the Upper Tribunal, having had an initial application to the FtT refused.

The matter came before Upper Tribunal Judge Church. He granted permission to appeal on the basis of the papers, and made directions for the filing of submissions. He said:

While the Upper Tribunal is generally very slow to interfere with the First-tier Tribunal’s fact finding role, I am persuaded that it is arguable with a realistic prospect of success that the Tribunal failed adequately to address the medical evidence in the appeal bundle about your diagnosis of cholesteatoma, and failed to consider whether your dizziness and balance could be due to cholesteatoma rather than to migrainous vertigo. If it did err in this way such error could be material because had the Tribunal not made such error it might have been led to different findings as to whether you would have the opportunity to take action to avoid falls when you felt a headache starting.

I am persuaded that this warrants a grant of permission to appeal to the Upper Tribunal. My grant of permission extends to all matters raised in Mr Khan’s letter of 30 June 2025.”

Miss Howard on behalf of the Secretary of State has now filed a submission supporting the appeal. She argues that the tribunal materially erred in law in its explanation of the reasons for its decision, and in failing to find facts. She does not require me to give reasons for my decision if I accept her arguments. I do accept them, but there are additional issues that require mention.

Mr Khan has not disagreed with anything that Miss Howard said. He asks me to give guidance on certain issues, but this is rarely appropriate for the Upper Tribunal where that guidance relates to matters not in issue. I address the matters he mentions, but only up to a certain point.

This is set out in tabular form in the document, but it is set out in a discursive format below:

I observe that the date on the Response that was submitted to the FtT is 5/2/2021. The two cases that I cite below were after that date, but state the position as it was as a matter of law even prior to the interpretation.

Where the Department has offered the appellant more than they already have, that is an effective revision of the prior departmental decision. This is so whether or whether or not the additional points are capable of amounting to an award: TL v Secretary of State for Work and Pensions(PIP) [2024] UKUT 282. I use the words of Upper Tribunal Judge Butler, granting permission to appeal in that case, to explain the general position. She said:

In DO v Secretary of State for Work and Pensions (PIP) [2021] UKUT 161 (AAC) , Upper Tribunal Judge Wright held that where the SSWP had offered to revise a PIP entitlement decision in a claimant’s favour if the benefit claimant accepted that offer and the appeal did not go ahead, the position was that the SSWP was no longer seeking to uphold the decision being appealed. This meant the points that had been offered were no longer issues in the appeal.

Although the tribunal states it was not bound by the SSWP’s recommendations, it is not clear from the Statement of Reasons that it considered whether and if so, how, the principles set out in DO applied to your appeal. In particular, the Statement of Reasons does not address what was, or remained, in issue between the parties at the date when the tribunal determined your appeal. The tribunal may therefore have misdirected itself in law about this issue.”

In allowing that appeal she sets out the crux of Judge Wright’s decision:

The Response to any further appeal should reflect the legal position, both in documentation and in any on the day position by a Presenting Officer. That is why I have made directions for a further response.

As is clear from above, the Response document of 5/2/2021 does detail the telephone calls in why the offer was made, but the text does not make it clear as to that position now being the decision under appeal. Throughout the appeal is said to be against the supersession decision made on 17/9/2020 following a request on behalf of the appellant to increase her award. This awarded only 6 points under the daily living component following the advice of the health care professional.

Now, ( and at the time of the tribunal decision that I am considering) the award of the standard rate of the Daily Living component should be, and should have been the tribunal’s starting point, unless it was making a conscious decision to place it in issue under section 12(8)(a) Social Security Act 1998, which reads:

The award at the standard rate was no longer an issue between the parties, therefore the tribunal needed to explain, both at the hearing itself (to give the appellant an opportunity to withdraw the appeal) and in its written decision, why it was starting from a lower base of an award of less than 8 points.

Here, this was not done, very probably because the tribunal had not read the full details of the Response document, and the Presenting Officer did not mention it. That omission of the tribunal is also an error of law.

The tribunal did conclude (despite the reservations I examine below) that a standard daily living award was merited. That affects the materiality of this error. It does not affect the fact that the decision overall was in error of law.

The Statement of Reasons is where the tribunal’s conclusions are explained in the context of its use of the evidence to find the facts. An essential task of the tribunal is to find the facts. In his book Tribunals: Practice and Procedure, my colleague Upper Tribunal Judge Edward Jacobs describes a fact as being what you get when you apply a process of reasoning to the evidence.

In her submission Miss Howard points out that large parts of it are merely a recitation of the evidence, and she is right. There is little if any fact finding apparent. What we have is a recitation of parts of the evidence without clarification of what the tribunal made of it: it is that explanation that comprises the facts.

What follows the summary of the various parts of the note of evidence are generic references that could apply in many cases, references to the reliance of the tribunal on its own expertise as well as the medical evidence and the expertise of the Departmental Examiner. These are not an explanation to the appellant of why the tribunal rejected their case, or parts of it. For the Upper Tribunal they are effectively an invitation to examine the statement yet more closely: in CH-v- Secretary of State for Work and Pensions (PIP) [2020] UKUT 19 (AAC) at [44] and [45] this type of ‘reasoning’ was described as a “protective essay” raising the question whether parts of the statement are “merely a form of words designed to protect the decision from scrutiny, rather than explanation of the actual reasoning that led to the decision.” I sense that here.

A particular concern here is that the only matters mentioned that do suggest why the tribunal concluded, as it did, that the appellant was overstating her problems, are of observations of her during the hearing, and indeed by one tribunal member outside the hearing room prior to it. The observations are used to suggest that the appellant is more capable in her activities than her claims suggest. There is no indication that any of the observations were put to the appellant for her comments. This is of itself a procedural defect that amounts to an error of law.

There is a long history of authorities on the difficulties of relying on observation evidence, and the importance of offering an appellant the chance to hear what has been observed, and comment on it, before using it as a reason for a decision. Not to do so may render the hearing procedurally unfair.

IC v Secretary of State for Work and Pensions (PIP) [2025] UKUT 223 (AAC) is the most recent decision in this long line, and there, from [21], Upper Tribunal Judge Fitzpatrick refers to some of the earlier cases.

A specific aspect of Mr Khan’s submissions was critical of the way in which the tribunal dealt with the appellant’s diagnosis of cholesteatoma. I look at this because the fresh tribunal will need to consider it in connection with the appellant’s claims of headaches and dizziness. It is not necessary for the tribunal to attribute headaches or dizziness to this, or indeed to any specific cause, but the previous tribunal rejected her evidence that she was affected by them without reference to what seems to me be a clear diagnosis in her medical evidence of this condition, which might have caused or contributed to such episodes as are described. I am not a doctor, and the fresh tribunal will use the expertise of the medical member to inform its views about what she describes, and whether either the cholesteatoma or the vertiginous headaches that the medical evidence mentions in other contexts may render her account plausible. If so, that plausibility must be assessed as to whether, in the round, it is more likely than not that she suffers such episodes, and if so, whether they affect the quality of her performance in relation to the PIP activities under consideration.

If there is a potential medical cause for her complaints, and they are rejected, the onus on the tribunal to detail their findings and the reasons for them increases.

Here, the tribunal should have in mind the principle set out in regulation 4(2A) that the various descriptors must be able to be performed safely. That was considered by a three judge panel in RJ and others v Secretary of State for Work and Pensions (PIP) [2017] UKUT 105 (AAC), as is set out in Miss Howard’s submission. Essentially, the tribunal found the test to be that an activity is not accomplished safely where there is a risk involved that cannot sensibly be ignored.

I am directing that the case be listed as an oral hearing; I appreciate that the appellant has already given her account to this tribunal at considerable length over two days, but it will be in her interests to attend and explain to the fresh tribunal what her problems were with the activities of daily living, and in getting around.

She may, through her representative or personally, make any further points that he wishes to on all issues at the rehearing, or on paper prior to that. I have made provision for both this, and for a fresh Response form the Secretary of State in my Directions.

For completeness, I also draw to the attention of the new tribunal the approach set out by Upper Tribunal Judge Hemingway in TR-v- Secretary of State for Work and Pensions (PIP) [2015] UKUT 0626 (AAC) which establishes that if a claimant is unable to perform an activity for part of a day that day counts towards that period provided that the inability to perform it affects them on that day to more than a trivial extent: in particular see [32-34].

Finally, I warn theappellant that the fact this appeal has succeeded here on an issue of law is not an indication that the rehearing will automatically be successful, because it is the new tribunal that will consider the evidence and determine the outcome.