RB 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 20 March 2025 and that the decision should be set aside as a result.

The FTT erred in law because, having kept the award of nine points in place in respect of the appellant being unable to get to a familiar place without being accompanied by another person, it failed to provide an adequate explanation for why it considered the appellant could get to the Jobcentre and potential jobs without a substantial risk to his or another person’s health. The core reasoning of the FTT on this issue is in the first sentence in paragraph 78 of its reasons. The FTT’s view in that sentence that the appellant would be able, without any substantial risk to his or another’s health, to get to and from the Job Centre and to attend a place of work on his own, fails to grapple at all with the award of nine points under descriptor 15(b) in Schedule 6 to the Universal Credit Regulations 2013 (“the UC Regs”). That award meant that the appellant could not get to any specified place, familiar or unfamiliar, on his own. To then reason in the first sentence in paragraph 78 of the FTT’s reasons that this was not the case was contrary to the nine point award under descriptor 15(b) and irrational.

If the FTT did not accept descriptor 15(b) was met, and this explains its reasoning in the first sentence in paragraph 78 of its reasons, it had to grasp the nettle and bring the appellant’s satisfaction of descriptor 15(b) into issue on the appeal before the FTT. Having not done so (see paragraph 65 of the FTT’s reasons), however, the FTT had to approach the substantial risk issue under paragraph 4 in Schedule 8 to the UC Regs on the basis that the appellant could not get to any specified place on his own.

Insofar as the FTT provided an alternative basis for the appellant not satisfying paragraph 4 in Schedule 8 to the UC Regs in the second sentence in paragraph 78 of its reasons – namely that there were three people who were available to take him to places he needed to go - that reasoning was insufficient. It was not an adequate explanation because the FTT failed to find facts as to how often the appellant would have been likely to attend at the Jobcentre or a job in July 2024 (on the basis that he was ‘fit for work’) or make findings as to the likely actual availability of the appellant’s father, stepmother and sister to make those trips to and from the Jobcentre and job(s) with him: see paragraphs [6]-[12] of ET v SSWP (UC) [2021] UKUT 47 (AAC) and the case law cited therein.

For the reasons set out above, the appeal succeeds. Despite the appellant’s request that the Upper Tribunal redecide whether he satisfies paragraph 4 in Schedule 8 to the UC Regs and should hold an oral hearing to decide this issue, I do not consider the Upper Tribunal is able to re-decide the first instance appeal. The fact-finding expertise of the two-member FTT is required to hear from the appellant and determine whether he had limited capability and (inter alia) whether he satisfied paragraph 4 in Schedule 8 to the UC Regs as at July 2024. The appeal is not just about satisfaction of paragraph 4 in Schedule 8 to the UC Regs.

The appeal will therefore have to be re-decided afresh by a completely differently constituted FTT, after an oral 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.