DA v Secretary of State for Work and Pensions (PIP)

The tribunal to hear the remitted case must either have the exact same constitution as, or an entirely different constitution from, the tribunal whose decision is set aside.

If either party seeks to contend that , in respect of the period ending on 1 November 2021, the new tribunal should reach a different conclusion as to the daily living component from the tribunal whose decision is set aside, they must notify the First-tier Tribunal and the other party within 28 days of the date of issue of this Decision.

This appeal applies the decision of the Three-Judge Panel in TR and GD v SSWP (PIP) [2025] UKUT 332 (AAC) to the particular circumstances of this case. Neither party has sought an oral hearing and both have indicated consent to a decision without reasons. I conclude that the appeal may properly be decided on the papers and consider that brief reasons should be given.

The First-tier Tribunal (“FtT”) had revised decisions of 12 September 2016 and 13 March 2019 so as to add a further 2 points to the Appellant’s award over the period from 13 May 2016 to 1 November 2021, on the basis that for PIP activity 9, in order to engage with other people he required social support (as that had been shown by caselaw correctly to be understood) (i.e. descriptor 9c) rather than prompting (descriptor 9b). As a result, he became entitled to the enhanced, rather than the standard, rate of the daily living component. Considering the case before the decision in TR and GD was available, the FtT took the view that when conducting the revisions it had no jurisdiction to alter the points awarded, except to the extent that to do so flowed from the error of law which had provided the basis for the revisions to be conducted. Accordingly, it took the view that it was not entitled to consider any change to the mobility component, to which the Appellant continued to have no entitlement.

TR and GD establishes that the FtT’s approach was incorrect – in particular for present purposes, in that entitlement to the mobility component ought to have been considered.

In his application for permission to appeal to the Upper Tribunal, as well as wanting his entitlement to mobility component in the period to 1 November 2021 to be considered, the Appellant also asked if his entitlement to the daily living component from November 2021 could be reassessed “based on the full evidence” with a view to obtaining the enhanced rate going forward.

The background to that latter point is that on 2 November 2021 a decision(“the 2021 decision”) was taken awarding the Appellant 11 points for the daily living component. The 11 points included 2 points for descriptor 9b. The effect of that decision was to limit the period to be considered by the FtT to expire the previous day. The FtT concluded that the 2021 decision was not within its jurisdiction. It was correct to do so: there was no appeal against that decision before it. It did its best, by suggesting to the parties that they might want to look again at that decision in the light of the evidence there was about the Appellant’s need for social support, but it could do no more than that. As the FtT had no jurisdiction to consider an appeal against the 2021 decision, neither does the Upper Tribunal on appeal from it. The 2021 decision is final unless changed in accordance with legislation or appealed against: that is the effect of s.17 of the Social Security Act 1998. Unless the DWP are prepared to supersede or revise the decision, an appeal against it would need to have been made to the First-tier Tribunal. Enquiries by the Upper Tribunal have not so far suggested that one has been made, but that it is not something the Upper Tribunal has power to do anything about.

In her submission of 4 December 2025, Ms Woods submits that the case should be remitted to a differently constituted tribunal, to consider afresh the Appellant’s appeal against the DWP’s decision dated 31 October 2023. In her submission, with which I agree, when carrying out a reconsideration of the Appellant’s needs following the notification of a change of circumstances on 13 May 2016 and the new healthcare professional report provided on 27 February 2019, the FtT should do so in the light of both any new relevant factual matters the available evidence brings to light and any new case law that section 27 of the Social Security Act 1998 does not prevent it from applying. For the avoidance of doubt, this extends to any matters which may bear on the Appellant’s entitlement to the mobility component and, for the reasons given above, it does not extend to any period after 1 November 2021.

On 8 December 2025 the Appellant provided a submission that he had nothing further to add.

There are two aspects of Ms Woods’ submission on which I would comment further.

First, I do not consider it is essential that the tribunal to which the case is remitted be differently constituted. Where, as here, the FtT concluded, reasonably on the then state of the law, but ultimately shown to be wrongly, that it had no jurisdiction, there is no reason why the same constitution should not hear the remitted case. For practical reasons, that is perhaps unlikely, but their existing familiarity with the case may make that an efficient option if it can be achieved.

Secondly, it would be open to a tribunal to take the view that it need not re-examine the award of the daily living component at the enhanced rate for the period from 13 May 2016 to 1 November 2021 unless either party asks it to. I have given a Direction aimed at clarifying the parties’ position.