KH v The Secretary of State for Work and Pensions (PIP)

KH made a claim for personal independence payment (PIP) on 14 February 2023. The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, asked KH to take part in a telephone medical assessment on 03 May 2023. Having received advice from that assessment, on 12 June 2023, DWP decided KH did not score any points for either PIP daily living activities or mobility activities.

KH appealed to the First-tier Tribunal on 07 November 2023. On 27 February 2024, her appeal was decided at Workington on the basis of the written evidence in the appeal bundle. The First-tier Tribunal (“FTT”) awarded KH 6 points for PIP daily living activities, consisting of the following descriptors: 1.b (2 points), 4.b (2 points) and 6.b (2 points). It awarded KH no points for the PIP mobility activities. As the threshold for an award of PIP is 8 points, the FTT therefore refused KH’s appeal.

On 08 November 2024, KH applied to the Upper Tribunal for permission to appeal against the FTT’s decision. In a decision dated 14 February 2025, I admitted KH’s application (which had been made late). I granted KH permission to appeal against the FTT’s decision on the basis it was arguable the FTT had made one or more of the following errors of law (the first three of which reflected arguments from KH’s representatives):

Mrs Hawley is the Secretary of State’s representative in these proceedings. She supports the appeal to the Upper Tribunal in a helpful written submission dated 08 April 2025. Mrs Hawley invites the Upper Tribunal to set aside the FTT’s decision dated 27 February 2024 for containing material errors of law, for the reasons set out below.

Mrs Hawley submits the FTT has provided limited conclusions about how it assessed KH’s functional abilities. She highlights, in particular, the FTT’s reasoning about PIP daily living activities 2 (taking nutrition) and 5 (managing toilet needs). Mrs Hawley submits that what the FTT wrote about these at paragraphs 5 to 9 of its Statement of Reasons appears to be no more than a rehearsal of the evidence and a conclusion reached without an adequate explanation.

Adequacy of reasoning about washing and bathing (PIP activity 4): Mrs Hawley submits that at paragraphs 5 to 8 of its Statement of Reasons, the FTT appears to have made narrow findings, based on KH’s evidence that her daughter helped her bathe 3 times a week. However, the FTT did not comment on KH’s evidence (recorded in the PA4 assessment at page 117) that she had 4 bad days a week and her daughter would help her in and out of the bath on those days. This evidence appears to suggest that KH might need assistance getting in and out of the bath on the majority of days in the required period to bathe, possibly satisfying the criteria for descriptor 4.e (3 points).

Mrs Hawley also submits that given the evidence, KH might alternatively satisfy descriptor 4.e based on regulation 7(1)(c) of the Social Security (Personal Independence Payment) regulations 2013 (“the PIP regulations 2013”). This provides for a person who does not satisfy one descriptor for more than 50% of the days in the required period, but who does satisfy two or more for periods, which in combination meet that threshold, to be awarded the descriptor that is:

Mrs Hawley highlights that the FTT has failed to address this possibility as well as failing to address KH’s evidence about the difficulties she experienced when washing and bathing. She submits this amounts to an error of law.

Adequacy of reasoning for managing toilet needs (PIP activity 5): Mrs Hawley highlights that an earlier PA4 medical report dated 07 June 2022 recorded KH reporting she had been diagnosed with malabsorption syndrome, following an operation on a twisted bowel four years earlier. This is a digestive condition preventing a person effectively absorbing nutrients from food, and which causes stomach pain, cramps, nausea and urgency opening the bowel. Mrs Hawley highlights that KH told the healthcare professional in 2022 that these symptoms happened without warning and she would have to go to the toilet, making her anxious when outside as she had previously had accidents.

When KH was assessed at the telephone assessment on 03 May 2023, she reported wearing incontinence pads all the time and that her condition had stayed the same since surgery (page 116 of FTT bundle). The healthcare professional then recorded KH saying she last had an episode of incontinence 12 months earlier (page 119 of FTT bundle). Mrs Hawley observes that KH’s evidence recorded on 03 May 2023 appeared to contradict what she had provided in the assessment on 07 June 2022. Mrs Hawley submits that the FTT should have used its inquisitorial function to reconcile the conflict in this evidence. She submits the FTT should also have considered whether KH needed to wear pads as a precautionary measure (see the guidance in SSWP v NH (PIP) [2017] UKUT 258 (AAC)). Mrs Hawley argues that as such, further findings are required to determine whether KH would satisfy a point scoring descriptor within this activity.

Adequacy of reasoning about taking nutrition (PIP activity 2): Mrs Hawley highlights that KH reported poor grip and sometimes struggling to cut tough meat in her PIP2 questionnaire (page 89 of FTT bundle). Mrs Hawley observes that the healthcare professional recorded on 03 May 2023 that KH reported used normal cutlery but struggled to press anything with her right thumb, managed cutting up food but struggled, and could not use right hand, having to use her right hand because she was more scared of dropping her cutlery (page 117 of FTT bundle).

Mrs Hawley also highlights the evidence about KH’s difficulties with hand function and grip provided by the consultant rheumatologist treating KH’s mixed connective tissue disease (pages 17, 29-30 and 142-3 of FTT bundle). Mrs Hawley highlights the consultant recorded on 16 June 2023 that KH continued to struggle with widespread arthralgia and observed she had puffy finger symptoms. The consultant also recommended considering pregabalin for pain management, highlighting the worse symptoms in the right upper limb, including dropping things, were more related to right C6 brachialgia (pages 142-3 of FTT bundle).

Mrs Hawley submits that in light of the evidence from KH and her treating consultant about her poor grip, the Statement of Reasons does not adequately explain why the FTT did not consider awarding KH points for using an aid for taking nutrition. This is particularly so, given the FTT acknowledged KH’s hand function was deteriorating when awarding her descriptors 1.b (preparing food) and 6.b (dressing and undressing) (see paragraphs 3 and 10 of the Statement of Reasons). Mrs Hawley submits the FTT should have used its inquisitorial function to determine whether KH could take nutrition within the meaning of regulation 4(2A) of the PIP regulations 2013.

Explaining its decision to determine the appeal on the papers: Mrs Hawley explains the FTT briefly mentioned determining the appeal without a hearing in paragraphs 6 to 7 of its Decision Notice dated 27 February 2024. She highlights that paragraph 2 of the Statement of Reasons states simply: “The case was dealt with by way of a paper hearing”. Mrs Hawley submits that the FTT failed to provide an explanation of why it felt able to determine KH’s appeal without a hearing. She comments this is particularly the case, given the FTT highlights in the Statement of Reasons a lack of evidence to support KH’s claim and some inconsistencies within her evidence and the medical documentation. These were factors potentially pointing against determining the appeal on the papers.

Mrs Hawley submits the FTT has failed to explain why it considered rule 27(1)(b) of the Tribunal Procedure (First-tier Tribunal) Rules 2008 (“the FTT Rules 2008”) was satisfied. This requires the FTT to confirm it considers it is able to decide the matter without a hearing. Mrs Hawley explains that a mere reference to the overriding objective in rule 2 of the FTT Rules 2008 is not sufficient to discharge that requirement if obvious factors pointed the other way. This reflects the Upper Tribunal’s decision in MM v SSWP (ESA) [2011] UKUT 334 (AAC). Mrs Hawley submits that no reasoning has been provided to clarify why the FTT determined it fair and just to decide KH’s appeal on the papers.

Given the Secretary of State’s support for the appeal to the Upper Tribunal, KH’s representatives have, understandably, chosen not to make further substantive representations in their reply dated 04 June 2025.

Neither party requested an oral hearing of the appeal. I took these preferences into account. I considered the appeal file. I decided the interests of justice did not require an oral hearing. The parties agree the FTT made material errors of law. It was proportionate to determine the appeal on the papers.

At the permission stage, I only needed to be persuaded that it was arguable with a realistic (as opposed to fanciful) prospect of success that the FTT had made an error of law in a way that was material.

At this substantive stage, I need to be satisfied on the balance of probabilities that the FTT did make an error or errors of law that were material.

I am satisfied, on the balance of probabilities, that the FTT made material errors of law in relation to the appeal grounds addressed by Mrs Hawley at at paragraphs 5 to 15 above, dealt with in more detail by her submission dated 28 April 2025.

This appeal has included reference to the wording at paragraphs 6 and 7 of the FTT’s Decision Notice, which cites rules 2 and 27 of the FTT Rules 2008. I hope it is helpful to the parties if I provide the following explanation about it.

From my previous experience as a First-tier Tribunal Judge, I know that in around 2021, the First-tier Tribunal (Social Entitlement Chamber) started using an online appeals system called Judicial Case Manager (“JCM”). It is also often known as Core Case Data (“CCD”).

The online appeals system includes a digital decision notice tool. This allows an FTT judge to write key information about its decision into the online appeals system. Using this, the decision notice tool generates automatically a draft Decision Notice for the decision. The decision notice tool asks the FTT Judge to tick one of two boxes, based on whether the appeal was dealt with on paper or at an oral hearing. This question must be answered before the tool moves on to complete the next part of the Decision Notice (meaning this particular field of entry cannot be skipped).

If the FTT judge ticks the box confirming the appeal was decided on the papers, the decision notice tool generates the following standard wording for the Decision Notice:

“No party has objected to the matter being decided without a hearing.

Having considered the appeal bundle to page [autogenerated number based on bundle length] [plus additional evidence] and the requirements of rules 2 and 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 the Tribunal is satisfied that it is able to decide the case in this way.”

Other sections of the digital decision notice tool allow a FTT judge to write in their own choice of text to be included in the decision. However, the wording quoted at paragraph 23 above is provided automatically. It is a product of what the system has included in response to the FTT judge ticking one of two boxes that must be completed.

Where a Decision Notice contains the wording quoted at paragraph 23 above, this does not, of itself, confirm the FTT gave active consideration to the requirements in rules 2 and 27 of the FTT Rules 2008. In any event, the wording quoted at paragraph 23 above does not explain why the FTT has decided rules 2 and 27 of the FTT Rules 2008 made it appropriate to determine the particular appeal in front of it on the basis of the papers. This requirement is explained in paragraph 7 of DT v SSWP (UC) [2019] UKUT 268 (AAC)and in paragraphs 11 to 12 of MM v SSWP (ESA) [2011] UKUT 334 (AAC).

Having decided the FTT’s decision involved material errors of law, it is appropriate to exercise my discretion to set aside the Tribunal’s decision dated 27 February 2024 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act provides that I must either remit the case to the First-tier Tribunal with directions for their reconsideration or remake the decision.

Neither party invited me to remake the FTT’s decision. In any event, it is necessary for facts to be found. The First-tier Tribunal is best placed to evaluate the evidence, including using its medical and disability expertise, and to make appropriate findings of fact.

I therefore remit KH’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about whether KH should be entitled to PIP at the date of DWP’s decision on 12 June 2023.

Although I have set aside the FTT’s decision dated 27 February 2024, I am not making any findings, or expressing any view, about whether KH should be entitled to PIP. The next tribunal will need to hear evidence, make its own findings of fact, and provide its reasoning for the decision it reaches.