CM v Secretary of State for Work and Pensions (PIP)

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 17 August 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 reason about how it had decided to approach dealing with the appellant as a vulnerable adult, due particularly to her autism: see RT v SSWP (PIP) [2019] UKUT 207 (AAC); [2020] AACR 4.

Paragraph [98] of the decision in RT is particularly relevant as it states that:

“[w]herever the line between material and immaterial is to be drawn, failing to follow the Practice Direction where a claimant has a documented diagnosis of autistic spectrum disorder is on the wrong side of it.”

This is not necessarily to conclude that the FTT erred in law by not following the Practice Direction. Rather, it is a sufficient (and material) error of law that the FTT failed to show how it had followed the Practice Direction.

Given this overarching error of law, strictly speaking it is not necessary for me to address whether the FT erred materially in law in any other respects, as those other arguments may be subsumed in the issues the next FTT may need to consider.

However, I am satisfied that the FTT also erred in law in its findings and reasons on daily living activities 1 and 6.

First, the FTT failed to adequately explain why either job in which the appellant had been employed read across and showed that her OCD did not lead to her to take too long to prepare and/or cook food because of excessively washing during the particular features of preparing and/or cooking food using fresh ingredients (e.g. washing cutting implements and boards after use).

Second, the FTT’s reasoning in relation to daily living activity 6 was inadequate. The FTT inferred from the fact that the appellant would in fact always change her underwear, that she did not need prompting to choose or change her other clothes. This , however, leaves it unclear if the FTT accepted whether the appellant in fact did not change her clothing other than her underwear. If the appellant did not in fact change those other clothes, the FTT in my judgement needed to explain more clearly than it did why it concluded that her not changing those other clothes was not as a result of her mental health conditions and/or did not require her to be prompted in order to change those other clothes.

The Secretary of State supports the appeal being allowed on the above (and other) grounds of appeal in a helpful submission to the Upper Tribunal dated 13 January 2025. That submission should be before, and taken into account by, the new FTT when it redecides the appeal.

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.