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

MM claimed personal independence payment (“PIP”) unsuccessfully in February 2020. MM made a subsequent claim for PIP on 08 February 2023. The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, asked MM to take part in a video medical assessment on 22 May 2023. On 31 May 2023, having received advice from that assessment, DWP awarded MM no points for any PIP activities and refused her claim. MM requested a mandatory reconsideration, but DWP maintained its position that she did not score any points, and she was not entitled to PIP.

On 03 September 2023, MM appealed to a First-tier Tribunal. On 10 June 2024, a First-tier Tribunal (“FTT”) heard MM’s appeal as a remote video hearing at Sutton. The FTT decided MM scored 2 points for daily living activities and 4 points for mobility activities. The threshold for an award of either the daily living component or the mobility component is 8 points. The FTT therefore refused MM’s appeal.

On 08 October 2024, MM applied to the Upper Tribunal for permission to appeal against the FTT’s decision. On 05 December 2024, I granted MM permission to appeal on the basis it was arguable the FTT had made one or more of the following errors of law:

Mrs Hawley is the Secretary of State’s representative in these proceedings. She supports the appeal in a detailed and helpful written submission dated 12 February 2025. Mrs Hawley invites the Upper Tribunal to set aside the FTT’s decision dated 10 June 2024 for containing material errors of law, for the reasons set out below.

Failing to make adequate findings of fact / or provide adequate reasons to support its decision: Mrs Hawley submits the FTT’s conclusions about how it assessed MM’s functional abilities are limited. She submits the FTT appears to have simply rehearsed the evidence and provided a conclusion, without providing an adequate explanation for that conclusion.

Mrs Hawley submits the FTT accepted MM has a number of health conditions, including haemoglobinopathy, osteoarthritis, lower back pain, joint and leg pain due to vascular problems. These are detailed in the HP medical records dated 24 March 2023 and 19 June 2023 (pages 75-81 and Addition B, pages 3-10 in the FTT bundle). They are also addressed in the letters from the Vascular Surgery Consultant Mr Roy dated 05 January 2023 and 25 May 2023 (pages 82 and 113-116 of FTT bundle).

Mrs Hawley submits the that when reading the FTT’s Statement of Reasons, it appears the FTT only made factual findings about PIP daily living activity 5 (managing toilet needs) and PIP mobility activity 2 (moving around). Mrs Hawley submits there is a lack of findings by the FTT in relation to the remaining PIP activities raised in the appeal.

Mrs Hawley submits the FTT has not addressed those activities despite having noted MM’s oral evidence about them at paragraphs 13 to 15 of the Statement of Reasons. Mrs Hawley submits the FTT appears simply to repeat portions of MM’s evidence at paragraphs 15 to 16 of the Statement of Reasons, without making any findings or observations about what they made of that evidence.

Mrs Hawley gives an example of the lack of factual findings in paragraph 16 of the Statement of Reasons. The FTT recorded MM telling them she had not had any falls in the bath as she was careful, and she could also dress if she did so carefully. Mrs Hawley submits that the FTT does not appear to have used its inquisitorial duty to determine why MM needed to be careful when undertaking those activities (e.g., due to functional restrictions from her health conditions).

Mrs Hawley argues the FTT appears to have made no clear factual findings about MM’s ability to carry out the remaining PIP activities within the meaning and application of regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013. Mrs Hawley argues that the lack of clarity and factual finding by the FTT leaves one in doubt about whether the FTT properly applied the law when reaching its conclusions about MM’s appeal

In respect of the second appeal ground, Mrs Hawley highlights that MM’s medical records confirm the result of an MRI scan on 29 November 2016. This referred to MM having lower back pain for several years radiating to both legs. The GP records also note an ultrasound was carried out on MM’s right knee on 30 June 2022, confirming degenerative changes were seen and concluding she had osteoarthritis. This was supported by an earlier x-ray on 29 March 2022, noting difficulties in the right knee. Dr Roy noted on 05 January 2023 that MM presented with a long history of heaviness and discomfort mobilising her lower limbs, with the left much more severe than the right. He indicated below the knee or thigh high compression hosiery might help improve MM’s symptoms.

Mrs Hawley submits the FTT accepted the evidence in MM’s GP medical records and in Mr Roy’s letters but has failed to address whether MM’s lower limb difficulties and lower back pain would cause her difficulties with activities involving a functional ability to stand, sit down, move from sitting to standing and to lean over. She submits the FTT appears to have failed to exercise its inquisitorial duty to determine from the evidence whether MM’s lower limb difficulties and lower back pain may impact on her ability to prepare food, manage therapy (regarding compression hosiery), dress and undress and wash and bathe.

Mrs Hawley submits that as a result, the FTT has failed to provide adequate reasons for its decision and that this is a material error of law.

In response, MM has provided representations. She agrees with Mrs Hawley that the FTT made material errors of law by failing to make sufficient or reasoned findings in relation to a number of the PIP activities where she reported difficulties. MM submits that despite raising a range of PIP activities, the FTT only assessed two activities formally and provided no explanation for disregarding the remaining ones.

MM also submits the FTT failed to apply or even refer to regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 (“the PIP regulations 2013”) in its written reasons. She submits the FTT also failed to evaluate properly the detailed medical evidence she provided in support of her appeal. MM submits that in her PIP2 form and her oral evidence at the hearing, she said she was limited to walking less than 20 metres. However, the FTT concluded she could walk more than 50 metres.

MM argues she believes this results from a miscommunication during the hearing (where she gave evidence through a Somali interpreter). MM argues that the 4 minutes of walking referred to in the PA4 report referred to very limited movement within her home and she must stop frequently, due to dizziness, pain, and breathlessness. MM submits that she told the FTT she uses crutches and, when she goes outside, she relies on a wheelchair. She argues this was not reflected in the FTT’s conclusions.

MM submits that while the FTT decided there was no persuasive medical evidence for her experiencing dizziness or breathlessness, she told the FTT she has experienced these since birth due to her haemoglobinopathy. She told the FTT she regularly experiences dizziness when cooking, bathing, walking, or going to the toilet, and they should have been considered under regulation 4(2A) of the PIP regulations 2013.

Neither party asked for a hearing. I took that into account. Having looked at the matter for myself, I decided an oral hearing is not required. 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 paragraphs 5 to 12 above, dealt with in more detail by her submission dated 12 February 2025.

MM has raised further examples of errors of law she states occurred. Given she and the Secretary of State agree there were other, material, errors of law, I do not need to resolve them to decide this appeal. It is more proportionate to decide the appeal on the agreed basis than delay matters by asking the Secretary of State to comment on the additional arguments. However, I acknowledge that MM has raised these arguments and have included them here, so that they may be considered in determining her appeal to the First-tier Tribunal.

Having decided the FTT’s decision involved material errors of law, I have decided to use my discretion to set aside the Tribunal’s decision dated 10 June 2024, applying section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Applying section 12, I must decide either to remit (send back) the case to the First-tier Tribunal to decide afresh, or to decide the case myself.

None of the parties asked me to decide the case myself. Furthermore, this is a case where more facts need to be found, and the Tribunal needs to think about all the medical evidence. 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 MM’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about whether MM was entitled to PIP at the date of DWP’s decision on 31 May 2023.

Although I have set aside the FTT’s decision dated 10 June 2024, I am not making any findings, or expressing any view, about whether MM 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.