Aleksandrs Nikolajenko v The Secretary of State for Work and Pensions

This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 30 May 2025.

The Appellant is reminded that the new First-tier Tribunal can only consider the appeal by reference to their health and other circumstances as they were at the date of the original decision by the Secretary of State under appeal (namely 12 April 2017).

If the Appellant has any further written evidence to put before the First-tier Tribunal relating to that period, including any further medical evidence, this should be sent to the relevant HMCTS regional tribunal office within one month of the issue of this decision.

The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

I allow the Appellant’s appeal to the Upper Tribunal. The First-tier Tribunal’s (‘FtT’) decision dated 30 May 2025 involves an error on a point of law and I therefore set aside the decision.

The case now needs to be reheard by a new FtT. I cannot predict the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the appeal before the new FtT will succeed on the facts. The new FtT may reach the same, or a different, decision to that of the previous tribunal.

The Appellant was born on 29 August 1988. He is profoundly deaf. He communicated using British Sign Language and has no access to sound.

On 10 May 2017, the Appellant made a claim for Personal Independence Payment (‘PIP’). By a decision dated 12 April 2017, the Appellant was assessed by the Respondent as scoring 8 Daily Living points (descriptor 7d) and 10 Mobility points (descriptor 1d). The Appellant was, accordingly, awarded the Daily Living and Mobility component of PIP at the standard rate from 10 May 2017. By a decision dated 1 November 2024, the Respondent reviewed the Appellant’s PIP award and assessed him as scoring an additional 2 Daily Living Points (descriptor 4b). As the Appellant still fell short of the required 12 points for an award of PIP at the enhanced rate, the Appellant’s PIP award remained unchanged. The decision was reconsidered by the Respondent on 15 November 2025 but not revised.

The Appellant appealed to the FtT. By a Decision Notice dated 30 May 2025, the FtT allowed the appeal. The FtT confirmed the Appellant’s existing scores and awarded a further 2 Daily Living points (descriptor 1b). The Appellant was, accordingly, awarded the Daily Living component of PIP at the enhanced rate from 10 May 2017. As the Appellant still fell short of the required 12 points for an award of the Mobility component of PIP at the enhanced rate, the Appellant’s PIP award for the Mobility Component remained unchanged. By a further Decision Notice dated 11 August 2025 the FtT refused permission to appeal to the Upper Tribunal.

The Appellant then applied to the Upper Tribunal for permission to appeal. On behalf of the Appellant, Mr Dean submits that the FtT erred in its approach and reasoning and that the Appellant ought to have been awarded an additional 2 Mobility points (descriptor 1f).

By an order dated 23 December 2025, Upper Tribunal Judge Citron granted permission to appeal on the grounds that it was arguable that the FtT:

The Respondent supports the appeal to the Upper Tribunal and invites the Upper Tribunal to set aside the FtT’s determination and to remit the matter back to the FtT for a fresh hearing.

In his reply to the Respondent’s submissions, Mr Dean stated that the Appellant does not agree to the Upper Tribunal giving a decision without reasons and requests that the Upper Tribunal re-make the decision if possible.

Neither party seeks an oral hearing or an anonymity order.

Not least given the Respondent’s support for the appeal, I am persuaded that the FtT erred in law for the reasons set out below.

Regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 provides that a person is to be assessed as satisfying a PIP descriptor only if they can do so safely, to an acceptable standard, repeatedly and within a reasonable period of time.

In RJ and others v SSWP [2017] AACR 32 the Upper Tribunal considered the meaning of ‘safely’ in Regulation 4(2A) and held as follows (para [56]):

“In conclusion, the meaning of “safely” in regulation 4(2A) and as defined in regulation 4(4) is apparent when one considers the legislation as a whole and with the assistance of the approach by the House of Lords to the likelihood of harm in the context of protecting people against future harm. An assessment that an activity cannot be carried out safely does not require that the occurrence of harm is “more likely than not”. In assessing whether a person can carry out an activity safely, a tribunal must consider whether there is a real possibility that cannot be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case. It follows that both the likelihood of the harm occurring and the severity of the consequences are relevant. The same approach applies to the assessment of a need for supervision.” (emphasis added)

In the written submissions filed on behalf of the Appellant for the appeal before the FtT, it was said that it was unsafe for the Appellant to follow the route of any journey unaccompanied because he “has no prior warning of impending danger due to his deafness. So, whereas a hearing person would hear, for example, an emergency vehicle on the way or a cyclist on the pavement. The appellant does not get that warning. He cannot safely travel alone”. It was said that “these needs are the same whether progressing along familiar or unfamiliar routes (paras [27]-[28]).

The FtT found that the Appellant was unable to follow the route of an unfamiliar journey without another person, assistance dog or orientation aid to the standard required by Regulation 4(2A) (descriptor 1d) but that he was able to follow the route of a familiar journey without such assistance (descriptor 1f). The FtT’s reasons are set out in paragraph 11 of the Statement of Reasons (‘SoR’) as follows:

“It was contended that the appellant should also receive the enhanced mobility component rather than standard as it was said that he cannot undertake any journey safely. However, the appellant has no sight or cognition defects and no mental health conditions. He reported travelling to work alone by bus and going to the local shops alone. He also travelled to the assessment centre alone. There is no universal restriction placed on driving licences on account of profound deafness as the ability to see is acknowledged as the most important sense. Most people now utilise navigation aids on their phones such as google maps, Citi mapper, or Trainline. The latter two have live updates which details closure of stations and platform changes. In the unlikely instance of a major incident being declared at a major transport hub it is likely that this would be relayed visually as well as via these applications on mobile phones. Indeed, if an evacuation was ordered it would be fairly apparent to the appellant that there was a mass exodus and he would follow everyone else. In event of a diversion, the journey then becomes an unfamiliar one, which has already been acknowledged in the award. The ability to see is the most important faculty in maintaining safety as a pedestrian and it is not always possible to hear bikes or electric vehicles and other traffic even for those with no hearing deficit. Accordingly, the standard rate of mobility is confirmed.”

Whilst the FtT considered various unexpected scenarios that the Appellant might encounter whilst undertaking a familiar journey and how he would/might deal with them, the FtT failed to properly focus on and consider (in accordance with para [56] of RJ and others v SSWP) whether, if the Appellant had undertaken a familiar journey unassisted, there would have been a real possibility that could not be ignored, of harm occurring, having regard to the nature and gravity of the feared harm in the Appellant’s particular case. As was pointed out in RJ and others v SSWP the likelihood of harm occurring and the severity of the consequences are both relevant considerations.

The FtT is under a general duty to make adequate findings on relevant issues (Benmax v Austin Motor Co Ltd[1955] AC 370 at 373). The FtT is also under a general duty to give adequate reasons to explain how relevant findings were made and its conclusions (Re B (Appeal: Lack of Reasons) [2003] FLR 1035 at para [11]).

The FtT found that the Appellant was unable to undertake an unfamiliar journey without assistance to the standard required by Regulation 4(2A) but was able to undertake a familiar journey without such assistance. In doing so, the FtT did not adequately explain why that was the case. The FtT did not properly explain or engage with the difference between the two types of journeys and why the Appellant, as a person with profound deafness with no access to sound and the ability to only communicate by sign language, would encounter less difficulties or risks undertaking a familiar journey as opposed to an unfamiliar journey. For example, the FtT did not explain how or why the difficulties and risks to the Appellant from unexpected platform changes, diversions and evacuations, the inability to hear announcements, the inability to hear emergency vehicles, cyclists on a pavement and/or other vehicles passing in close proximity, would be any different whether the Appellant was following a familiar or unfamiliar journey.

Further, the FtT did not properly engage with the Appellant’s evidence as to the effect on him of undertaking any form of journey without assistance. In reaching its conclusion, the FtT relied upon the Appellant’s ability to travel alone by bus to work and to go the local shops alone, as demonstrating his ability to follow the route of a familiar journey without assistance. The Appellant had, however, stated in his PIP2 Questionnaire form dated 27 January 2017 that he did not:

“…feel safe traveling on his own because I cannot hear announcements on buses, tube or train and I would panic if people leave the tube and left me on my own. I would try to speak to a member of staff for an update or clarification but once I said I am deaf and I would be ignored and left isolated not knowing where to go.

I sometimes avoid going out because I get nervous about whom I will meet and feel isolated because I am unable to communicate with other people. I usually feel excluded from society when I go out.”

Similarly, in the Healthcare Professional’s report dated 27 March 2027 it is recorded that the Appellant reported that:

“…he does not use tubes as he misses the tube announcements and has difficulty when gets on the wrong train or the trains are prematurely terminated and he does not know where to go and he will not be able to ask people.”

At p.95 the HP records the following concerning the claimant’s difficulties with following the route of a journey:

And that:

“…he catches a bus to work alone, and he works out the times and is able to get to work, but he does not go anywhere else alone due to fear and a sense of insecurity especially at night…”

It is not clear what, if anything, the FtT made of this evidence. There is no reference to this part of the evidence in the SoR.

Still further, the Appellant’s evidence as to his fears and anxiety when travelling without assistance did not draw a distinction between familiar or unfamiliar journeys. The inability to hear announcements, the risk of being left alone on public transport and the inability to communicate with staff, would be present in both familiar and unfamiliar journeys. The FtT did not, however, make any adequate findings and/or explain whether the Appellant would experience less fear and anxiety when undertaking a familiar journey as opposed to an unfamiliar one, and if so, why.

Ground (iii) follows on from Grounds (i) and (ii). The FtT did not adequately explain how or why a familiar journey ‘becomes’ an unfamiliar one in the event of a diversion and/or why this meant that the Appellant was able to undertake a familiar journey without assistance. Further and in any event, I am satisfied that the FtT erred in approaching the matter in this manner. The risk of a diversion exists when undertaking both a familiar journey and an unfamiliar journey. It follows that the Appellant’s fear and anxiety associated with and the risks to him as a profoundly deaf of a diversion are a feature of both types of journeys. When considering the issue of a possible diversion, in accordance with RJ and others v SSWP the FtT ought to have focused on the likelihood of harm occurring to the Appellant if he was undertaking a familiar journey without assistance and a diversion were in place. The FtT failed to do so because it took the view that the journey would no longer be a familiar one and so was covered by Mobility descriptor 1d. In doing so, the FtT failed to properly consider Mobility descriptor 1f in accordance with RJ and others v SSWP.

I am satisfied that the FtT’s failures as set out above amount to material errors of law. Accordingly, I allow the appeal, set aside the FtT’s decision dated 30 May 2025 (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)) and remit the original appeal for re-hearing before a new FtT subject to the directions above (section 12(2)(b)(i)). As facts need to be found, it is not appropriate for me to re-make the decision on paper.

There will need to be a fresh hearing of the appeal before a new FtT. Although I am setting aside the FtT’s decision dated 30 May 2025, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to the Mobility component of PIP at the enhanced rate. That is a matter for the new FtT. The new FtT must review all the relevant evidence and make its own findings of fact accordingly.

In doing so, however, the new FtT will have to focus on the Appellant’s circumstances as they were as at 12 April 2027, and not the position as at the date of the new FtT hearing. This is because the new FtT must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (section 12(8)(b) of the Social Security Act 1998).