Appeal No. UA-2025-001415-PIP
Between:
SL
Appellant
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Wright
Decided on the papers
On appeal from:
Tribunal: First-tier Tribunal (Social Entitlement Chamber)
Tribunal members: Judge S Aziz, Ms C Lock and Dr SEC Laverty
Tribunal Case Nos: SC319/24/01629
Tribunal Venue: Walsall
Decision Date: 25 February 2025
DECISION
The decision of the Upper Tribunal is to allow the appeal.
The decision of the First-tier Tribunal made on 25 February 2025 under case number SC319/24/01629 was made in error of law.
Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, the decision is set and the appeal is remitted to an entirely differently constituted First-tier Tribunal to be redecided, after an oral hearing, and in accordance with the law set out in this decision.
REASONS FOR DECISION
I am satisfied on the arguments before me that the First-Tier Tribunal (“the FTT”) erred materially in law in the decision to which it came on 25 February 2025 and that the decision should be set aside as a result.
District Tribunal Judge Cossar gave permission to appeal
“because the content of paragraphs 12 and 13 of the statement of reasons give rise to 2 arguable errors of law, namely:
a) the Tribunal found an ESA report to be the only document of probative value from the PIP award in June 2022 without explaining why other documents, such as the Appellant’s claim form, did not have probative value; and
the Tribunal found there was no medical or other satisfactory evidence to
persuade them of the extent of the Appellant’s claimed deterioration, without
explaining why documents such as the Appellant’s own claim form were not
deemed “satisfactory evidence”.”
In my judgement, and for the reasons more fully explained by the Secretary of State’s submission on this appeal to the Upper Tribunal, the FTT did err in law in the ways suggested by DTJ Cossar.
The Secretary of State’s submission to the Upper Tribunal in support of this appeal is dated 16 January 2026 and reads, materially, as follows:
“4.2 It is my submission, that the FtT has erred in law in both their fact finding and duty to provide adequate reasons for their decision. The conclusions from the FtT on how they assessed the claimant’s functional abilities appears limited in their reasoning.….the claimant was awarded 8 points for daily living descriptors 1(b), 4(b), 5(b) and 6(b) and 10 points for the mobility component descriptor 2(d). Therefore, any error of law would need to result in a minimum of 4 additional points being awarded for the daily living descriptors and 2 points for the mobility descriptors of PIP for it to be material. It seems that what the FtT has provided at paragraphs 12 and 13 of the SOR with regards to the claimant’s difficulties with mobility activity 2 – moving around appears to be no more than a rehearsal of part of the evidence and a conclusion without an adequate explanation.
4.3 The claimant was diagnosed with Fibromyalgia and Osteoarthritis; she was diagnosed in early 2022 following symptoms since 2010. She is prescribed tramadol (50mg) which is partially effective. She has previously been prescribed various pain relief medication which was not effective. She experiences body fatigue and widespread pain daily which is worse to the lower back, pelvis and lower limbs. Due to these issues, she experiences these symptoms daily, most of the time her function is slow and on worse days she struggles to get out of bed. The claimant was also diagnosed with anxiety and depression in 2019; she is prescribed sertraline (200mg) which is effective. As well as type 2 diabetes, diagnosed in 2000.
4.4 As noted in the PTA (permission to appeal) the FtT found that the claimant did not satisfy a higher scoring descriptor than mobility activity 2(d) – can stand and then move using an aid or appliance more than 20 metres but no more than 50 metres, as they provided the following reasons detailed at paragraph 12 and 13 of the SOR which states:
“12. There is simply insufficient evidence before us to suggest that since her initial PIP award made on 14 June 2022 that there has been a deterioration in any of her diagnosed (or other) medical conditions. The only documentary evidence of probative value that we have from when she was initially awarded PIP in June 2022 is the ESA medical report from May 2023 (about a year before the date of decision). We have quoted extracts from that report at paragraph 11(g) above and those extracts undermine [claimant’s] assertions that she can no longer walk more than 10 m because her mobility is so poor. The only evidence from around the date of decision is the patient medication history from March-September 2024 (pages 128 – 131). However, this is of limited value in assisting [claimant] in establishing her case.
The radiology test result from 15 October 2021 (pages 15–16) concluded that she was suffering from mild osteoarthritis in her pelvis. There is no further medical or other satisfactory evidence to persuade us that her health has since deteriorated to the extent that she cannot walk more than 10 m or suffers from the other symptoms highlighted in her grounds. As such, the evidential burden has not been discharged and we do not find that her condition has deteriorated to the extent that she should be awarded any further points (other than those that she has already been awarded) to qualify for an enhanced award of PIP in either component.”
The FtT in their reasoning (repeated above) appear to have simply summarised the evidence before them and then concluded that at the date of the decision under appeal, the claimant did not satisfy the higher rate of mobility activity 2 without providing adequate reasoning to support and explain how they reached their conclusion that the claimant was able to move around in accordance with the provisions of Regulations 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 (the PIP Regs 2013).
It appears the FtT failed to acknowledge that the claimant does have restrictions in her ability to move around more than 10 metres. However, the FtT have relied on the ESA report to come to their conclusion without adequately explaining why they didn’t acknowledge other documents. The FtT have consequently, failed to recognise that the claimant’s aid is not useful in helping her walk. For instance, she claims in the PIP2 form that she cannot use a walking stick because of her body weight and the impact this has on her wrists (FtT bundle, p.13). She states that using a walking stick has resulted in a fall in the street. It is therefore, unclear how the claimant can move around within the requirements of Regulation 4(2A) of The Social Security (Personal Independence Payment) Regulations 2013. This I submit, is an error in law.
Going further, the claimant has expressed “I have recently started getting out of breath when walking so I am even slower” (PIP2 Form, FtT bundle, p.13). She also states that she “…cannot walk pain-free…” (Letter to DWP, FtT bundle, p.54). Yet, the FtT have stated that the claimant can walk more than 10 metres, even though the claimant clearly states that she can only walk up to 10 metres pain-free (Claimant letter, FtT bundle, Addition C p.1). In response to this evidence, it is uncertain why the FtT have not considered the claimants pain levels when moving around. Consequently, the FtT have given inadequate reasons for their conclusion in their treatment of mobility activity 2 as well as their treatment of evidence.
As the claimant clearly states:
“With regard to my walking you state that there is no medical evidence to support my claim of only being able to walk 10 metres. I actually stated in my claim that I could only walk up to 10 metres pain free. Also because there is no previous evidence doesn't mean it is not a fact. I know that after I have walked a short distance each step becomes harder and more painful” (Claimant letter, FtT bundle, Addition C p.1).
This evidence suggests that she cannot walk to a reasonable standard and without pain past 10 metres, so it raises the question, why was this evidence not acknowledged without adequate reasoning?
In view of this, it is unclear how the FtT reached the conclusion that the claimant is capable of moving around and whether she is able to do so within the requirements of Regulation 4(2A) of The Social Security (Personal Independence Payment) Regulations 2013.This leaves the reader in doubt as to what evidence the FtT relied upon and whether they failed to consider evidence in the round when dismissing the evidence to consider the cumulative impact of the comorbidities of the claimant’s health conditions. This I submit is a further error in law.
Although the FtT is entitled to give weighting to whatever evidence that it chooses, where there is conflicting evidence, it must in the first instance explore and consider it in a holistic manner and provide sufficient reasons explaining why it preferred the evidence that it had. In this appeal the FtT does not appear to have done that. There appears to be a distinct lack of reference to the evidence provided by the claimant and the medical evidence which demonstrate the nature of her health conditions and longstanding physical and mental health difficulties. Therefore, it could be said that had the FtT given appropriate consideration to all the evidence, including accurately identifying the effects of the claimant’s conditions, the FtT may have considered the claimant’s limitations. As such, I submit that the FtT have failed to give adequate reasons as to why evidence in parts was not accepted when deciding what points were awarded.
Consequently, I respectfully submit that the inadequacy of reasons makes it difficult for the claimant to know whether the FtT applied the correct legal tests in assessing the evidence, making its findings of fact, and arriving at its decision. Furthermore, the errors of law identified and detailed within this submission are material, as had the claimant been awarded at least 2 additional point for the mobility descriptors of PIP she would have scored sufficient points to be awarded the enhanced rate of the mobility component of PIP.
If the UT Judge accepts my submission that the FtT has erred in law, I invite them to set aside the FtT’s decision and remit the appeal to be re-heard by a differently constituted FtT.
For completeness the UT Judge will wish to know that the claimant has not made any further claims to PIP.”
For the reasons set out above, the appeal succeeds. The Upper Tribunal is not able to re-decide the first instance appeal. 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 her 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.
Stewart Wright
Judge of the Upper Tribunal
Authorised for issue on 17th March 2026