IF v Secretary of State for Work and Pensions

I am satisfied on the arguments before me that that the First-Tier Tribunal (“FTT”) erred in law in the decision to which it came on 18 December 2024 and that its decision should be set aside as a result.

The FTT erred in law in my judgement in failing to provide an adequate account in its findings in fact and its reasons for why the appellant did not qualify for any award of points under the mobilising activity in Schedule 6 to the Universal Credit Regulations 2013 (“the UC Regs”) .

There are two errors of law. These are persuasively explained in the Secretary of State’s helpful submission on the appeal to the Upper Tribunal dated 28 April 2025. I agree with that submission and respectfully adopt it in this decision.

First, but perhaps of less significance given this led the FTT to focus instead on whether the appellant could mobilise the relevant distances under activity 1 in Schedule 6 to the UC Regs using a manual wheelchair, the FTT failed to answer whether the appellant could walk the relevant distances under activity 1. As the Secretary of State points out:

“2.

The Tribunal’s recorded findings of fact in relation to the activity one may reasonably be described as somewhat oblique. A significant discrepancy was identified between the evidence recorded in the UC85 medical report, which suggested the Appellant was able to walk for around 10 minutes using a walking aid without needing to stop (and such a walk was regularly completed to visit his local shop) (FtT bundle page 40-41) and that subsequently provided by the Appellant during his dispute and at the hearing. The Appellant suggested that the nurse completing the examination had falsified this testimony and they were in fact only able to walk 40m with a stick before needing to stop to prevent their back from spasming and significant discomfort (FtT Bundle pages 3, 93, & Addition B1).

3.

From a reading of paragraph 19 of the statement of reasons, it is unclear precisely what determination the Tribunal reached in relation to the Appellant’s walking tolerance or how this conflict was resolved. It is noted that the Tribunal felt the GP records showing a prescription for Tramadol provided some support for the Appellant’s oral evidence, but it remains uncertain what conclusions were reached in regard to the distance the Appellant could walk and what weighting was attached to the respective pieces of conflicting evidence or their reasons for doing so. The Tribunal might have chosen to explore the fact that the Appellant is in receipt of an award of the Adult Disability Payment, a fact highlighted in the Secretary of State's response to the appeal, regrettably with little further detail, but if they did so there is no record of this present in the statement of reasons.”

It may be said, however, that this first error of law is not a material error of law as it was seemingly not for this reason that the FTT did not award the appellant any points under mobilising in activity 1 in Schedule 6.

The second error of law is, however, a material error of law, as it seems clear that it was on this basis that the FTT found no points were merited for mobilising. The error in essence is the FTT’s failure to have any, or any adequate, regard to the three-judge panel’s decision in SI v Secretary of State for Work and Pensions (ESA) [2014] UKUT 308 (AAC) in deciding that the appellant could reasonably use a manual wheelchair. The failing is put well by the Secretary of State in paragraphs 7-12 her submission, though I set out the prior paragraphs of that submission as well as they also make valuable points about reasonable use of a wheelchair and other material deficits in the FTT’s approach to that issue.

“4.

Rather than reach a conclusion on the Appellant’s walking tolerance the Tribunal appear instead to have turned to consider whether the use of a manual wheelchair would improve the Appellant’s ability to mobilise. The Appellant had submitted they would be unable to do so due to poor grip and back pain. The Tribunal, placing weight on the absence of any significant supporting medical evidence for upper limb restriction, the Appellant’s ability [to] drive an automatic car and grip a walking stick and the fact their restrictions to washing and dressing were the result of backpain rather than issues with grip, found the Appellant’s contention of grip issues to lack credibility. As such having found he could sit for 20 minutes they concluded he would be able to propel a manual wheelchair for sufficient a period to cover 200m. Accordingly, they concluded descriptor 1(e) of Schedule 6 to the UC Regs must apply (UT bundle page 20 para 21).

5.

The Appellant’s representative’s contention that the Tribunal failed to adequately investigate how the Appellant’s back problems might prevent him from propelling a manual wheelchair therefore appears justified. The statement of reasons makes no comment as to why they felt these symptoms would not prevent him from doing so, despite the fact they did accept the condition presented with significant restrictions to his sitting tolerance, to the extent they considered descriptor 2(b) applied. The Respondent notes that the Appellant had stated he needed to constantly change position whilst sitting to avoid discomfort (FtT bundle 40), but no reference has been made in the statement as to why the Tribunal did not think this material to his ability to self-propel such an aid.

6.

The Tribunal further stated that as the Appellant was able to remain seated for 20 minutes, he would be to mobilise more than 200m in a manual wheelchair but has not commented on what period he might reasonably be able to continuously self-propel nor cited any evidence referring to a benchmark as to what distance might be covered in that period. As found in SG v Secretary of State for Work and Pensions (ESA) [2018] UKUT 34 (AAC), the omission of such a finding of fact or reference to the evidential basis on which that was made represents a material error in law.

7.

More widely, it is clear that the Tribunal failed to engage with the guidance for the approach to be taken when a judgement on whether a manual wheelchair might reasonably be used, as outlined by the three-judge panel in SI v Secretary of State for Work and Pensions (ESA) [2014] UKUT 308 (AAC). Having concluded that “in principle, all circumstances should be taken into account when considering whether a person can reasonably use a manual wheelchair or other aid” the Judges outlined at paragraphs 76-81 a five-part test:

“76.

First, because the work capability assessment is not to be divorced from the real world of work and the claimant does not actually have an employer, the test must be applied on the basis that the notional employer from whom the claimant might obtain employment has a modern workplace and is prepared to make reasonable adjustments in order to enable the claimant to be employed. To that extent the test is a thought-experiment like the “cooking test”.

77.

Secondly, as the Secretary of State concedes, all medical considerations will need to be taken into account. This includes “attendant consequences, for example, muscle wasting” identified by Judge Gray in TB which, we observe, are matters beyond the current “physical and mental condition” mentioned in section 1(4)(a) of the 2007 Act and regulation 19(1) of the ESA Regulations and the current “specific bodily disease” and “specific mental illness” mentioned in regulation 19(5). However, we draw attention to the view of the First-tier Tribunal in the second case before us that “there would not be any detriment to the appellant’s health if she were to utilise a wheelchair for a 30 significant portion of the day” because “she would still have the remaining portion of the day in which she could utilise her limbs and continue with ensuring the circulation of blood”. Also, while we agree with Judge Williams in AR that all aspects of wheelchair use need to be taken into account, we would point out that a person unable to get in and out of a wheelchair unaided is unlikely to need to score points under Activity 1 because he or she would probably score 15 points under Activity 2 (standing and sitting) on the ground that he or she “[c]annot move between one seated position and another seated position located next to one another without receiving physical assistance from another person”.

78.

Thirdly, the home environment is potentially relevant but, for the reason suggested in [74] above, an inability to use a manual wheelchair at home or to store it there due to the physical layout of the home is unlikely to be as important as was suggested in DM and NT.

79.

Fourthly, the availability of manual wheelchairs is a question of fact, to be proved by evidence although the First-tier Tribunal is entitled to use its own knowledge. No Upper Tribunal judge has adopted Mr Commissioner Stockman’s emphasis in MG on NHS assessments. Whatever may be the position in Northern Ireland, there are powerful arguments for not requiring there to be an NHS assessment before it is considered reasonable for a claimant to use a manual (or powered) wheelchair in Great Britain. This is not simply a matter of practicality, although we are inclined to agree with the Secretary of State that requiring such an assessment would be impractical, but is because such an assessment is not required by the legislation and, at least in England, the criteria for providing wheelchairs through the NHS or local authorities vary from area to area and are generally wholly unrelated to the issues raised by the ESA Regulations. No doubt any assessment would be valuable evidence, but it is not necessary to obtain one if one does not already exist. Moreover, there are other ways of obtaining manual wheelchairs. Judge Mark referred in BG to the “relative cheapness” of manual wheelchairs and to their availability from charities where reasonably required. They can also often be rented at a modest cost that might be met out of earnings, although this may not be possible everywhere.

80.[…]

81.

Fifthly and more generally, it will be clear from what we have already said that it is necessary for the Secretary of State to anticipate or at least answer objections that claimants who do not use manual wheelchairs or other aids might make to being expected to consider using one. Thus reasons for decisions or submissions to the First-tier Tribunal need to show why the decision that the use of an aid is reasonable for that claimant accords with and promotes the underlying purposes of the legislation governing entitlement to ESA. They would also indicate to the claimant, those concerned with JSA and the First-tier Tribunal why it was thought that the particular claimant’s capability for work should be assessed on the basis that he used the relevant aid or appliance. Naturally, those reasons and the manner in which they are provided will be case and aid or appliance specific. Some (eg medical issues) will appear in and can be given by the provision of or by reference to the Health Care Professional’s report. Other reasoning could no doubt be based on generic and published evidence-based material.

8.

It is clear from a cursory reading of the statement of reasons, the Tribunal failed to follow this approach. It should be noted that they were not assisted by the Secretary of State’s response to the appeal, which made only the most passing reference to the use of a manual wheelchair (FtT Bundle para 5.4, page F). This was perhaps unsurprising as the Respondent had not sought to rely on the use of a manual wheelchair, arguing instead that the evidence indicated the Appellant was likely to be able to walk more than the prescribed distances for a scoring descriptor to apply. This was consistent with the evidence of the approved HCP who also advised a scoring descriptor for activity one could be excluded on the basis of the Appellant’s walking tolerance (FtT bundle 55).

9.

As the Tribunal appeared not to concur with that conclusion (although as noted earlier their finding of fact on the Appellant’s walking tolerance remained oblique), they were required to consider all circumstances as to whether the Appellant might reasonably use a manual wheelchair and outline their findings for each aspect.

10.

As already submitted, with regard to medical matters, the rationale of the Tribunal appears to fall short of the required standard. The Respondent notes that in addition to the Appellant’s back complaint, the UC85 also cites symptoms of chest pain and radiating pain to their neck and shoulders; both of which might reasonably have some impact on their ability to self-propel such an aid (FtT bundle page 38-39). The statement however is silent in relation to this matter. The Appellant also suffered from a hernia in the groin which appears likely to have some relevance to the use of a manual wheelchair, but again no reference at all is made to this in the statement, which restricts its medical considerations only to grip and sitting tolerance. It is submitted the failure to make findings in relation to these co-morbidities and their impact or lack of impact on whether a manual wheelchair could reasonably be used represents a material error in law.

11.

The Tribunal also appear to have given no consideration as to whether a manual wheelchair could reasonably be stored or used at the Appellant’s home. It may be the case the Tribunal considered these factors not to be relevant, as such an aid, if required to increase mobility could reasonably be stored at the place of employment by the hypothetical employer as a reasonable adjustment. However, the failure to make any reference to such a finding would suggest it is more plausible the Tribunal did not consider this area at all.

12.

It is further noted, there is no reference in the statement of reasons as to whether the Appellant possesses or indeed has ever used a manual wheelchair and therefore whether the Tribunal when determining them reasonably able to use such an aid, had given any consideration as to the availability of such an aid to the Appellant. The Respondent notes it has been contended in the grounds of appeal to the Upper Tribunal, the Appellant gave oral evidence at the hearing they had borrowed but found they could not use a manual wheelchair, although there is no reference to such a statement in the case papers. The Respondent has no access to a copy of the record of proceedings to verify this assertion but would submit that the failure to make any reference to whether the Appellant had access to or how they would reasonably obtain such an aid represents a material error in law regardless of the veracity of this statement.”

It probably does not need to be recorded, but the errors of law in the FTT’s approach to mobilising were plainly material errors of law given the FTT had found that 9 points were merited under activity 2. So 6 points under activity 1 would have led to the appeal being allowed.

For the reasons set out above, the appeal succeeds. The Upper Tribunal is not able to re-decide the first instance appeal, nor is it asked to do so. 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 his 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.