IN THE UPPER TRIBUNAL Appeal No. UA-2025-000081-PIP
(ADMINISTRATIVE APPEALS CHAMBER)
On Appeal from the First-tier Tribunal (Social Entitlement Chamber) SC246/24/00284
BETWEEN
DJD
Appellant
and
THE SECRETARY OF STATE FOR WORK AND PENSIONS
Respondent
BEFORE UPPER TRIBUNAL JUDGE WEST
Decided on consideration of the papers: 4 July 2025
ON APPEAL FROM
Tribunal: First-tier Tribunal (Social Entitlement
Chamber)
Tribunal Venue: Wakefield
Tribunal Case No: SC246/24/00284
Tribunal Hearing Date: 19/8/2024
DECISION
The decision of the First-tier Tribunal sitting at Wakefield dated 19 August 2024 under file reference SC246/24/00284 involves an error on a point of law. The appeal against that decision is allowed and the decision of the Tribunal is set aside.
The matter is remitted to a differently constituted tribunal for a complete rehearing.
The new tribunal must considerand make relevant findings as to whether or not the claimant satisfied the criteria to be awarded the daily living component and/or the mobility component of personal independence payment from and including 14 July 2023 to and including 24 September 2024. In so doing the new tribunal should in particular have regard to the claimant’s grounds of appeal dated 8 November 2024 and the submissions of the Secretary of State dated 1 April 2025.
This decision is made under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.
REASONS
This is an appeal, with my permission, against the decision of the First-tier Tribunal sitting at Wakefield on 19 August 2024.
I shall refer to the appellant hereafter as “the claimant”. The respondent is the Secretary of State for Work and Pensions. I shall refer to her hereafter as “the Secretary of State”. I shall refer to the tribunal which sat on 19 August 2024 as “the Tribunal” and the tribunal to which I am remitting the matter as “the new tribunal”.
The claimant appealed against the decision of 22 October 2023 that he was entitled to 2 points for the daily living component and 0 points for the mobility component of personal independence payment. He was not therefore entitled to either component of personal independence payment from and including 14 July 2023. The decision was subsequently reconsidered, but not revised, on 11 January 2024.
The matter came before the Tribunal on 19 August 2024 when the appellant appeared by telephone and gave oral evidence. No presenting officer was present. The appeal was refused.
The Tribunal found that the appellant was entitled to 4 points for the daily living component and 0 points for the mobility component of personal independence payment. He was not therefore entitled to either component of personal independence payment from and including 14 July 2023.
On 14 February 2025 I acceded to the claimant’s application and granted him permission to appeal. It seemed to me that there was an arguable case that the Tribunal had erred in law for the grounds set out in his grounds of appeal.
On 1 April 2025 the Secretary of State provided submissions and supported the appeal. The claimant had nothing to add on 13 May 2025.
The Secretary of State confirmed that the claimant made a further claim for personal independence payment on 25 September 2024, which was successful and he was awarded the enhanced rate of the daily living component after scoring 17 points for daily living descriptors 1(b), 3(b), 4(c), 6(c), 9(d) and 10(b) and the standard rate of the mobility component after scoring 10 points for mobility descriptor 1(e), the award being for the period from and including 25 September 2024 to and including 16 December 2027. The appeal therefore concerns the closed period from and including 14 July 2023 to and including 24 September 2024.
Neither party has sought an oral hearing and I do not consider that it is necessary to hold one in order to resolve the matter. Both parties have also consented to a decision without reasons under rule 40(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
The Secretary of State submitted that
“3. Grounds of appeal
3.1 The claimant’s representative’s grounds of appeal are detailed at pp. 8 and 17-19 of the UT appeal bundle, which I have summarised as follows:
1. The FtT has not explained within the SOR why they relied upon and preferred the evidence detailed in the PA4 consultation report dated 09/10/2023, when the claimant’s representative asserted that the evidence within the report was not fully accurate and could not be relied upon.
2. The FtT has failed to explain in the SOR why they preferred the evidence within the PA4 consultation report dated 09/10/2023 to that of the ESA85 report dated 08/01/2019 and UC85 report dated 18/08/2023.
3. The FtT found the claimant’s evidence inconsistent based upon evidence within PA4 consultation report without considering other evidence before them. The FtT has also drawn inferences about the reliability of the claimant’s evidence based upon the GP patient records about his employment history and the reported circumstances of his arrest for motoring offences.
4. Secretary of State’s submission
4.1 Permission to appeal has been granted by UT Judge West [UT appeal bundle pp.29-31], as …there is an arguable case that the Tribunal erred in law for the reasons set out in his grounds of appeal.” (summarised above).
4.2 As noted above (at paragraph 2.4) the claimant was awarded 4 points for daily living descriptor 9(c), therefore, any errors of law would need to result in a minimum of 4 additional points being awarded for the daily living descriptors of PIP for it to be material.
4.3 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. It seems that what the FtT has provided within the SOR, regarding the claimant’s difficulties with the daily living and mobility activities of PIP, appears to be no more than a rehearsal of part of the evidence and a conclusion without an adequate explanation.
4.4 The claimant reports that he suffers from a variety of health conditions that affect his functional ability to undertake day to day activities, the most significant of which for the present purposes are attention deficit hyperactivity disorder (ADHD), anxiety, depression, and plantar fasciitis. With regards to his mental health difficulties the claimant experiences symptoms of irritability, anger, and aggression; at the date of the decision under appeal he was prescribed Prochlorperazine and Mirtazapine by his GP to help manage the symptoms of his anxiety and depression. I note that the claimant told the FtT at the appeal hearing that he was no longer taking Mirtazapine as the medication “did not agree with him” and that he is having counselling with Turning Point following a referral by his GP [paragraphs 16 and 17 of the SOR].
4.5 It is noteworthy that the claimant in the past has taken medication for his ADHD but stopped taking it, as it made him feel drowsy and spaced out and is now reportedly not taking any medication for the condition [p.48].
4.6 The claimant’s plantar fasciitis was diagnosed in September 2023 after experiencing symptoms for 3-4 months prior to diagnosis. The condition causes him to experience stabbing pains in his left foot, which worsen when resting. The claimant has been given exercises to do and is awaiting an appointment with physiotherapy [paragraph 16 of the SOR].
4.7 It was noted by the FtT at paragraph 5 of the SOR that the claimant when lodging his appeal with HMCTS against the DM’s decision dated 22/10/2023, asserts that he should have been awarded points for the following daily living and mobility descriptors of PIP:
“…1(d) or (e), 2(d), 3(b), 4(b)/(c), 5(b), 6(c)/(d), 10(b), 11(d)/(e). He further adds that he has difficulties speaking to people, reading and physical problems walking.”
4.8 Turning to the first and second grounds of appeal (noted above), which relate to the FtT’s preference and reliance upon the evidence and opinions contained within the Healthcare Professional’s (HP) PA4 consultation report completed on 09/10/2023. Along with the concerns raised by claimant’s representative about the apparent discrepancies between the PA4 consultation report [pp.47-69] and the UC85 and UC85A medical reports, which I note were both completed on 18/08/2023 [Addition F pp.59-68], some two months earlier, which recommend that the claimant meets the criteria for Limited Capability Worked Related Activity (LCWRA).
4.9 Upon reading the SOR the FtT at paragraph 29 simply state that they “…place reliance upon the HCP report and find the Appellant does not meet the criteria for an award of PIP of either the daily living or mobility components.” The FtT have not provided any reasoning within the SOR as to why they preferred the HP’s PA4 consultation report dated 09/10/2023 to any other evidence before them such as the UC85 and UC85A medical reports completed on 18/08/2023. Thereby leaving the claimant in some doubt as to why the HP PA4 consultation report was preferred by the FtT.
4.10 Whilst the FtT are entitled to rely upon whatever evidence they wish, it is noteworthy, that there appears to be limited analysis or comparison of the evidence and opinions of the HP who completed the UC85 and UC85A reports [Addition F pp.59-68] by the FtT within the SOR. I would note that the FtT appear to quote extensively from the PA4 consultation report regarding the claimant’s difficulties with both the daily living and mobility activities of PIP. This seems to have resulted in the FtT taking a somewhat narrow view of all the evidence before them.
4.11 This is of particular relevance given the claimant’s representative’s assertions in their written submission to the FtT [Addition A pp.1-3] that the HP PA4 consultation report was not fully accurate and explaining why this was the case, noting that the respondent (the Secretary of State) refers to the HP consultation report 13 times, the GP patient records 3 times and the UC85 medical report just once. I respectfully submit FtT has failed to engage with the totality of the evidence before them and this amounts to an error of law.
4.12 Moving to the third ground of appeal detailed by the claimant’s representative at pp.18-19 of the UT appeal bundle, regarding the FtT’s conclusions that the claimant’s evidence was inconsistent and unreliable [paragraph 30 of the SOR]. This finding appears to be based upon their reliance on the evidence and opinions contained within the PA4 consultation report dated 09/10/2025 [47-69]. As previously highlighted in my submission the FtT seem to have failed to engage with the totality of the evidence before them. This can be seen with regards daily living activities 1 – (Preparing food) and 2 (Taking nutrition) at paragraphs 21-22 of the SOR, the FtT noted the following:
“21. The Appellant said in oral evidence that he does not cook if his son does not give him food he will not eat…He could not clarify why he had told the HCP that he can only stand for a few minutes due to his plantar fasciitis (50). He said he normally has takeout meals and occasionally a friend will cook him a Sunday dinner. He said he can knock pans, get angry, have cuts and bruises. He added that he had butterfly stiches for his cuts which his son purchases from the pharmacy. He added that he can forget to eat, drinks lots of water and his weight has dropped from 17.5 stone to 15 stones.
We find the oral evidence with regards to preparing food and taking nutrition is inconsistent with that recorded within his HCP assessment (50) and with his medical conditions. In the circumstances we find he does not have difficulties with these descriptors.”
Whilst I note that the abovementioned evidence concerning daily living activities 1 and 2 is different to that recorded in the PA4 consultation report at p.50, the main issue here is that the claimant has consistently raised in both his verbal and written evidence difficulties particularly with daily living activity 1 and that both his physical and mental health difficulties were affecting his ability to prepare and cook a simple meal and also his ability to take nutrition.
In light of this should not the FtT have used their inquisitorial duty to clarify and make further findings as what difficulties the claimant is experiencing with preparing and cooking a simple meal to determine whether for example he may require an aid to cook and prepare a simple meal such as a perching stool, given their acceptance at paragraph 16 of the SOR that the claimant’s plantar fasciitis “…causes a stabbing pain on the sole of his left foot … he has been given exercises to do and was awaiting therapy.” Moreover, should not the FtT have clarified with the claimant at the appeal hearing why he “…can knock pans, get angry, have cuts and bruises.” Was this due to the effects of his mental health difficulties?
Likewise, with regards daily living activity 2 should not the FtT have used their inquisitorial function to establish why the claimant was forgetting to eat, was this due to his mental health difficulties, over what period had he had lost 2.5 stone and whether he had consulted his GP about his weight loss.
Additionally, the FtT note the following at paragraph 25 of the SOR with regards daily living activity 4 – (Washing and bathing):
“25. With regards to washing and bathing he told the HCP that he bathes daily without prompts, uses the shower but will not stand for long periods due to his foot pain. He is able to get in and out of the bath leaning on the side of the bath and using the bars which are on the bath. He said in his oral evidence that his son has to tell him to shower; he could not recall what he had told the HCP adding that his son has to prompt him. We find his mental or physical did not impact his ability to wash or bathe.”
It is notable that the claimant reported to the HP during the telephone assessment that he has difficulties with showering, as standing for long periods causes him pain in his left foot. It could be said that the claimant is referring to the effects of his plantar fasciitis, again this is consistent with his reported difficulties with standing, to which he also refers to with regards daily living activity 1. Should not the FtT have considered whether the claimant may benefit from an aid when showering or bathing especially given the difficulties highlighted when standing in a wet area and relying on holding onto the bath.
Similarly, with regards the claimant’s assertions that that he required prompting from his son to take a shower should not the FtT have made findings to establish whether the prompting was required due to the effects of the claimant’s mental health difficulties.
It is my submission that the FtT has materially erred in law, as they have failed to make sufficient findings within the SOR based upon the evidence before them to determine whether the claimant could undertake the daily living activities 1, 2 and 4 in accordance with the provisions of regulation 4(2A) of the Social Security (Personal independence Payment) Regulations 2013 (the PIP Regs 2013), as such further findings are required.
Furthermore, I concur that my views are generally aligned with those of the claimant’s representative’s regarding the concerns raised and detailed at p.19 of the UT appeal bundle. The FtT appear to draw unfavourable inferences that claimant’s evidence “…is unreliable and inconsistent” from the GP’s recording of what the claimant reported to them [p.123] concerning when he last worked, the circumstances relating to motoring offences for which he was arrested and whether his son was or was not present at the time [paragraph 19 of the SOR]. It is unclear why the FtT placed weight upon this evidence rather than any other evidence before them and whether this evidence supports their decision when deciding not to award points for the descriptors claimed for.
Although, the FtT is entitled to give weighting to whatever evidence that they choose, where there is conflicting evidence they must in the first instance explore and consider it in a holistic manner and provide sufficient reasons explaining why they preferred the evidence that they had. In this appeal the FtT does not appear to have done that. There seems to be a distinct lack of evaluation of the claimant’s evidence regarding the difficulties he experiences when the undertaking the claimed daily living activities of PIP due to impact and effects of his physical and mental health difficulties, when determining whether the claimant was able to undertake the daily living activities of PIP in accordance with the provisions of regulation 4(2A) of the PIP Regs 2013, apart from daily living activity 9 – (Engaging with other people face to face).
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 should be awarded.
In view of the above, Irespectfully submit that the FtT has materially erred in law, as 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 their findings of fact, and arriving at their decision regarding the claimant’s appeal. Moreover, had the FtT awarded the claimant a further 4 points for the daily living descriptors of PIP as highlighted at paragraphs 4.11-4.17 of this submission then he would have scored sufficient points to be awarded the daily living component of PIP.
4.24If the UT Judge accepts my submission that the FtT has erred in law, I invite her to set aside the FtT’s decision and remit the appeal to be re-heard by a differently constituted FtT.”
For the reasons identified by the Secretary of State, I am satisfied that there was the Tribunal made errors of law which were material to the decision and for that reason the decision of the Tribunal should be set aside.
In the circumstances I do not need to consider whether the Tribunal made any other errors of law.
I am satisfied that the resolution of any other grounds of appeal will fall to be subsumed at the hearing before the new tribunal.
I therefore allow the appeal and set aside the decision of the Tribunal. I remit the matter to a new tribunal which should conduct a complete rehearing of the matter.
I must stress that the fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication as to the outcome of the rehearing by the new tribunal. It is quite possible that the new tribunal may end up effectively coming to the same decision as the previous Tribunal, namely that the claimant was not entitled to either component of personal independence payment from and including 14 July 2023 to and including 24 September 2024.
Alternatively, it is possible that the new tribunal might take a different view of the facts from that of the Tribunal and reach the conclusion that in fact the claimant was entitled to one or other or both components of personal independence payment from and including 14 July 2023 to and including 24 September 2024.
It is for the new tribunal itself to decide which of these alternative options open to it applies, depending on the view it takes of the facts and providing it makes proper findings of fact and gives adequate reasons. It would not be appropriate for me to express any opinion either way on the merits of the appeal.
The following directions apply to the hearing before the new tribunal:
The new tribunal should not involve any member who was a member of the Tribunal involved in the hearing of the appeal.
The new tribunal must considerand make relevant findings as to whether or not the claimant satisfied the criteria to be awarded the daily living component and/or the mobility component of personal independence payment from and including 14 July 2023 to and including 24 September 2024. In so doing the new tribunal should in particular have regard to the claimant’s grounds of appeal dated 8 November 2024 and the submissions of the Secretary of State dated 1 April 2025.
Mark West
Judge of the Upper Tribunal
Signed on the original on 4 July 2025