EL v Secretary of State for Work and Pensions

I am satisfied on the arguments before me that that the First-Tier Tribunal (“the FTT”) erred materially in law in the decision to which it came on 25 April 2205 and that the decision should be set aside as a result.

It is plain from the FTT’s reasons that it dealt with the appeal in considerable detail. However, in my judgement it erred in law in its approach to that detail in the following respects.

First, this is a case in which the appellant had had (unbroken) awards of the mobility component and the daily living component of PIP for over ten years: from 3 April 2014 to 18 January 2026. Not all of the evidence that lay behind those awards was before the FTT. It was the final award (from 8 September 2021 to 18 January 2026) that was removed by the Secretary of State’s supersession decision with effect from 5 August 2024, and it was that supersession decision which was under appeal to the FTT. Given it was a supersession decision removing entitlement which as under appeal, the FTT erred in law in paragraphs 4 and 46 of its reasons by directing itself that the burden of proof rested on the appellant to show that he satisfied the conditions of entitlement to PIP. Insofar as who bore the burden of proof was a material issue on the appeal, it was for the Secretary of State to show that the appellant no longer met the conditions of entitlement, which the Secretary of State had decided on 3 February 2022 he would meet until 18 January 2026, from 5 August 2024.

Secondly, and allied to the first ground of appeal, as the decision under appeal was a supersession decision removing an existing award of PIP, and it was at least part of the appellant’s appeal that he had not improved and his conditions had worsened, the FTT failed to provide an adequate explanation, based on all relevant evidence, for why the award of PIP was no longer merited: see DS v Secretary of State for Work and Pensions (PIP) [2016] UKUT 538 (AAC); [2017] AACR 19 at paragraphs [16]-[20] and KB v Secretary of State for Work and Pensions (PIP) [2016] UKUT 537 (AAC) at para. [13]. There is little or no consideration by the FTT of the evidence underpinning the previous awards or an explanation for why that evidence was no longer persuasive. In particular, the previous HCP report had seemingly been the basis for the award which was superseded on 5 August 2024, it was a report which was also conducted over the telephone, and was, on the face it, as comprehensive a report as the HCP’s report on which the FTT relied. What was needed, but was not provided, was some reasoning from the FTT as to why, in the context of the appellant’s case that he had not improved, the latest HCP report provided a sounder evidential basis for determining entitlement to PIP than the previous HCP report.

Thirdly, the FTT in my judgment failed sufficiently to address the detail of the appellant’s criticisms of the most recent HCP report at addition A in the FTT bundle. Even ignoring for the moment whether the FTT adequately addressed the requirements of rule 27 of its procedure rules, the FTT needed to do more than it did in paragraph 12 of its reasons to address the specific concerns the appellant had raised about the HCP report in circumstances where the FTT relied in full on that report (see paragraphs 35-37 and 58 and 62 of the FTT’s reasons). Paragraph 12 of the FTT’s reasons reads as follows:

“12.

We noted that while [the appellant] disputed aspects of the [HCP’s] report, he had not requested an oral hearing where he could give evidence directly or be questioned about the inconsistencies in the evidence. His preference for a paper determination, combined with the comprehensive documentary evidence available, satisfied us that we could make proper findings of fact without the need for oral testimony.”

As the FTT considered it did not need to hear from the appellant about his criticisms of the HCP report, in my judgement it needed to explain why none of those criticism were made out. For example, why it did not consider a transcript of the HCP assessment was needed and why it accepted that the appellant was driving his daughter to school. It was, again, relevant context that the previous HCP report had been the basis for the award which was superseded on 5 August 2024, was also conducted over the telephone, and was just as comprehensive as the HCP’s report on which the FTT relied.

Fourthly, the FTT’s consideration of rule 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules (“the SEC Rules”) was inadequate. Specifically, the FTT’s consideration in paragraph 12 of its reasons failed to address or appreciate that the appellant’s criticisms of the HCP’s report (at Addition A) were made on 21 January 2025 and thus after he had made his appeal (on 28 November 2024) in which he had not asked for a hearing of the appeal. That lack of request for an oral hearing was, as a result, not made on a fully informed basis by appellant (as to what the HCP report said), and so ought not to have been taken as having been made by the appellant in full knowledge of the case he had to meet on the appeal. In these circumstances, and bearing in mind rule 2(2)(c) of the SEC Rules – ensuring, so far as is practicable that the parties are able to participate fully in the proceedings - the FTT’s consideration of rule 27 of the same rules was not adequate.

These issues are further explored in the Secretary of State’s submission to the Upper Tribunal in support of the appeal, dated 23 December 2025. The submission reads materially as follows:

“Secretary of State’s submission

9.

I support UT Judge Wright’s view and respectfully submit that the FTT have erred on all 4 grounds raised in the appeal.

Ground 1

10.

The FTT have erred by incorrectly placing the burden of proof on the appellant to show their entitlement of PIP.

11.

At paragraph 4 of the statement of reasons (SOR) the FTT state ‘The burden of proof rests with the claimant to demonstrate, on the balance of probabilities, that they satisfy the criteria for the descriptors claimed’. The Secretary of State (SoS) initiated the supersession; therefore, the burden of proof would lie with the SoS to show why we considered the appellant was no longer entitled to their award of PIP. This is confirmed by the FTT at paragraph 19 of the SOR which states ‘The Department for Work and Pensions commenced an unplanned intervention on 23 April 2024… Based on this assessment, the Secretary of State made a supersession decision on 5 August 2024…’ (UT bundle, page 17).

12.

Furthermore, the FTT found the evidence provided by the appellant was limited. At paragraph 33 of the SOR the FTT state ‘The medical evidence in this case is notably limited’ and continuing from this at paragraph 34 the FTT also state ‘The most significant piece of objective medical evidence is an MRI scan from December 2019… this scan is over four years old..’ The following was held in Kerr v Department for Social Development (Northern Ireland) [2004] UKHL 23 which states –

‘15. In this situation there is no formal burden of proof on either side. The process is essentially a fact-gathering exercise, conducted largely if not entirely on paper, to which both the claimant and the department must contribute. The claimant must answer such questions as the department may choose to put to him honestly and to the best of his ability. The department must then make such inquiries as it can to supplement the information which the claimant has given to it. The matter is then in the hands of the adjudicator. All being well, the issue of entitlement will be resolved without difficulty.

16.

But there some basic principles which made be used to guide the decision where the information falls short of what is needed for a clear decision to be made one way or the other:

(1)

Facts which may reasonably be supposed to be within the claimant's own knowledge are for the claimant to supply at each stage in the inquiry.

(2)

But the claimant must be given a reasonable opportunity to supply them. Knowledge as to the information that is needed to deal with his claim lies with the department, not with him.

(3)

So it is for the department to ask the relevant questions. The claimant is not to be faulted if the relevant questions to show whether or not the claim is excluded by the Regulations were not asked.

(4)

The general rule is that it is for the party who alleges an affirmative to make good his allegation. It is also a general rule that he who desires to take advantage of an exception must bring himself within the provisions of the exception. As Lord Wilberforce observed, exceptions are to be set up by those who rely on them: Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107, 130.’

13.

It is clear the FTT have not considered if the appellant was asked to provide more up to date evidence, or if there was any. It is for the SoS and in this case the FTT to give the appellant a reasonable opportunity to supply this evidence. At paragraph 55 of the SOR the FTT state ‘[The appellant] disputes these findings… but chose not to request an oral hearing where such disputes could be properly explored.’ The appellant cannot be faulted for not knowing what evidence to provide or for not requesting an oral hearing in order to provide additional evidence which would have been helpful to the FTT. The FTT could have adjourned as to allow the appellant the opportunity to provide additional evidence.

Ground 2

14.

Moving on to the second ground, I submit the FTT have failed in adequately addressing the supersession decision.

15.

SC v SSWP (PIP) [2019] UKUT 165 (AAC) sets out the steps the FTT should follow when dealing with a supersession decision –

“(a)

asking if there is a basis in law for DWP’s supersession decision (which means identifying the legal ground available to supersede the award); and

(b)

if so, ask whether DWP has provided adequate reasons (when addressing all the evidence available) to explain and sustain the decision.”

16.

At paragraph 19 of the SOR the FTT state ‘The Department for Work and Pensions commenced an unplanned intervention on 23 April 2024, leading to a telephone assessment…Based on this assessment, the Secretary of State made a supersession decision.. ‘. It is clear that the FTT have acknowledged the superseding decision and they have demonstrated the starting point as being the HCP report, as per (a) of the above case law, however the FTT’s reasoning is still inadequate.

17.

SC v SSWP (PIP) [2019] UKUT 165 (AAC) also held the following -

'27. However, the mere receipt of a healthcare professional's report, while the trigger for a possible supersession, is not in itself sufficient. There must be consideration of the evidence therein (the factual basis for the superseding decision), compared and contrasted to the other evidence available, to sufficiently justify exercising the power to supersede.

28.

The above point was illustrated by Upper Tribunal Judge Wikeley in TH v Secretary of State for Work and Pensions (PIP) [2017] UKUT 0231 (AAC), where Judge Wikeley observed: '…it was not simply enough to assume that the appearance of a new PIP assessment report provided an automatic grounds for supersession of the original award decision under regulation 26(1)… It could not simply be assumed that the second PIP assessment report, in some way trumped the first PIP assessment report, for example, by virtue of being more recent. The appellant, as a matter of justice, was entitled to an explanation as to why his award has been terminated ahead of time…[see] R(M) 1/96 and SF v Secretary of State for Work and Pensions (PIP) UKUT 481 AAC.'

18.

Although the FTT consider whether the appellant met the descriptors at length, the FTT do not appear to consider how the appellants condition has improved from the previous award. As per the case law above, it cannot be assumed that since the HCP report that triggered this supersession under regulation 26 is more accurate because it is newer than the previous evidence.

19.

It was also held at paragraph 13 in KB v Secretary of State for Work and Pensions (PIP) [2016] UKUT 537 (AAC) the following -

‘..it may be necessary to consider the circumstances obtaining when the existing award was made and during the period of the award as part of “all the relevant evidence” and as part of an adequate explanation of the outcome if it is less favourable than the existing award that is being replaced on supersession..’

The explanation by the FTT is inadequate and is unclear to the reader how the appellants condition had improved since the appellants previous award of enhanced daily living and mobility. The FTT failed to compare the evidence to the previous award, therefore failing to address any principal arguments by the appellant that their condition had not improved to the point they were no longer entitled to an award of benefit. If the FTT’s considerations are not clearly spelt out it is not clear whether the FTT has misdirected itself or not taken into consideration some material consideration in the case. The lack of consideration by the FTT I submit amounts to an error of law.

Ground 3

20.

The FTT have failed to address the appellant’s criticisms of the HCP report, they have failed to demonstrate that they have given proper consideration to this evidence.

21.

At paragraph 12 the FTT state ‘…[the appellant] disputed aspects of the healthcare professional’s assessment report…’ Although, the FTT are entitled to give weight to whatever evidence that it chooses. Where evidence is conflicting and potentially material to the outcome of a decision, the FTT have an obligation that they must in the first instance explore and consider it in a holistic manner and provide sufficient reasons explaining why it preferred the evidence that is has.

22.

At paragraph 13 Judge Hemingway in SM v SSWP (PIP) [2021] UKUT 140 held –

'There will, of course, be some inconsistencies which are so very stark or potentially so very damning, or which might of themselves be determinative of an appeal, where the requirements of natural justice would require an FtT to specifically put the matter to a claimant for comment'.

Applying the case law above, due to the uncertainties surrounding the appellants improvement in health in which the FTT have acknowledged at paragraph 39 of the SOR which they state, ‘The Tribunal notes significant inconsistencies between these two medical opinions..’. In light of this the FTT should have considered whether to adjourn or issue further directions to the appellant to attend the hearing and provide further information on their condition. It is unclear how the appellants condition has been considered to have improved, especially since the claimant reports that it has worsened, this is acknowledged by the FTT at paragraph 26 stating ‘..though he suggested they have gradually worsened over time’. Further information would need to be gathered by the FTT on this matter.

23.

Additionally, the FTT noted that the appellant’s medication had remained the same for several years, stating at paragraph 30 of the SOR ‘The GP records show these medications had been prescribed consistently over several years with minimal review or adjustment, which is unusual for such potent pain medications.’ Further evidence provided by the appellant could have resulted in an increased level of award. It is unclear from the SOR whether the FTT considered adjournment or issuing the appellant further directions to assist in this case, this I submit amounts to an error of law.

Ground 4

24.

The final ground concerns whether the FTT erred in failing to consider Rule 27 and proceeding with the paper hearing. I submit the FTT have erred on this ground.

25.

In the case at hand, the claimant submitted on the SSCS1 form (seen at page 6 of the FTT bundle) that they would not be attending the hearing. Despite this request, the FTT still must consider whether to proceed in this way. It must consider whether it would be in the interests of justice to adjourn for an oral hearing instead, considering rule 2, the overriding objective, and rule 27(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.

26.

The consideration of rule 27 is a three-stage process as set out in the case of MH v Pembrokeshire CC [2010] UKUT 28 (AAC):

‘Exercising that power involves three stages.

11.The first stage occurs when a case is put before a tribunal for consideration on the papers and without the parties. That is done on the basis that none of the parties has asked for an oral hearing. It is probably done by a clerk and without any individual judicial consideration of the case.

12.The second stage occurs at the start of the tribunal’s consideration. It must be satisfied that no one has asked for an oral hearing. That is a condition of its power to consider the case on the papers. It that condition has not been satisfied, it has no power to proceed and must adjourn and direct an oral hearing. This is a judicial decision under rule 27(1)(a). There is no scope for the overriding objective to apply. Either there has been a request for an oral hearing or there has not. The condition is either satisfied or it is not.

13.The third stage occurs when the tribunal has considered the case. It must then decide whether to give a decision or to adjourn. The adjournment may be to allow an oral hearing to take place or to give directions to a party on evidence that is required. If an oral hearing is directed, this is a judicial decision under rule 27(1)(b). If the case is adjourned with directions, this is a judicial decision under rule 5(3)(h) (case management power to adjourn). In either case, the decision must be made in the light of the overriding objective.’

27.

I respectfully submit that there is insufficient evidence within the decision notice and SOR to show that the FTT considered the third stage and whether it was able to decide the matter without an oral hearing or further evidence. At paragraph 10 of the SOR the FTT simply state ‘Having regard to the overriding objective Rule 2 of the Tribunal Procedure...Rules 2008, we were satisfied that we could deal with the case fairly and justly without a hearing’. However, no explanation is given as to why the FTT found it appropriate to decide the issue on the papers. As held in paragraph 14 of CE/841/2010 which states -

‘A failure to explain expressly (or impliedly) why discretion was exercised in a particular way may, therefore, involve an error of law. This would leave the tribunal’s reasons open to attack for inadequacy. A bald statement that ‘the tribunal have considered the overriding objective in deciding to proceed on the papers’ is unlikely to be enough if there were clear and obvious factors which pointed the other way. The tribunal would then need to do more to show how it balanced the factors in deciding to go ahead.’

28.

Applying this case law to the case at hand, there is little in the way of an explanation in the decision notice or SOR as to why the FTT believed it was in the interests of justice to proceed in the absence of the claimant. Whilst rules 2 is mentioned, I submit the reasoning is not sufficient enough, especially where the FTT have found numerous inconsistencies with the appellant’s evidence (SOR paragraphs 12,30 & 39,). Having the claimant present at the hearing may have had a material difference to the outcome of the appeal if the appellant could have provided more evidence about the inconsistencies the FTT highlighted.

29.

Overall, the FTT were required to bear in mind throughout the hearing, whether or not an adjournment was necessary in order for the FTT to fulfil its investigative and inquisitorial role. As it is not evident that the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 were adequately considered in this case, or clear why discretion was exercised in a particular way, I respectfully submit that the FTT have erred on this ground.

30.

As such, if the UT Judge accepts my submission that the FTT have erred in law on the above grounds, I invite them to set aside the decision and remit the appeal for rehearing by a freshly constituted FTT.”

For the reasons set out above, the appeal succeeds. The Upper Tribunal is not able to re-decide the first instance appeal. That appeals will therefore have to be re-decided afresh by a completely differently constituted FTT, after an oral hearing. Given the grounds on which this appeal has been allowed, I trust it is obvious that the appellant is encouraged to attend that hearing.

The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether his appeal will succeed on the facts before the new FTT, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.