Appeal No. UA-2025-000294-PIP
Between:
J.B.
Appellant
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Wikeley
Decided on consideration of the papers
Representation:
Appellant: Ms K. Huthwaite, Leeds City Council Welfare Rights
Respondent: Mrs H. Hawley, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-Tier Tribunal (Social Security and Child Support)
Tribunal Case No: SC007/24/00037
Digital Case No: 1700661510562705
Tribunal Venue: Leeds
Hearing Date: 2 August 2024
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with this decision and the following directions.
DIRECTIONS
This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.
The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 2 August 2024.
The Appellant is reminded that the tribunal can only deal with the appeal, including her health and other circumstances, as they were at the date of the original decision by the Secretary of State under appeal (namely 16 June 2023).
If the Appellant has any further written evidence to put before the tribunal and, in particular, further medical evidence, this should be sent to the HMCTS regional tribunal office within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).
The new Tribunal hearing the remitted appeal will be dealing with the closed period from 20 February 2023 to 7 April 2024 (see paragraph 14 below).
The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal or the new award. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal or the new award.
These Directions may be supplemented by later directions by a Tribunal Legal Officer, Tribunal Registrar or First-tier Tribunal Judge.
REASONS FOR DECISION
Introduction
The Appellant’s appeal to the Upper Tribunal succeeds and so there will need to be a completely fresh hearing of the original Personal Independence Payment (PIP) appeal before a new First-tier Tribunal (FTT).
The Upper Tribunal’s decision in summary and what happens next
I allow the Appellant’s appeal to the Upper Tribunal. The decision of the First-tier Tribunal involves a legal error. For that reason, I set aside the Tribunal’s decision.
The Appellant’s case now needs to be reheard by a new and different First-tier Tribunal. I cannot predict what will be the outcome of the re-hearing. So, the new tribunal may reach the same, or a different, decision to that of the previous Tribunal. It all depends on the findings of fact that the new Tribunal makes. The fact that an award of the enhanced rate daily living component and the standard rate mobility component has been made by the DWP for a subsequent period is no guarantee that the remitted appeal covering an earlier period will succeed, or succeed to the same extent.
The factual background
On 16 June 2023 the DWP decision-maker, on considering the available evidence, scored the Appellant at 0 points for both the daily living and mobility descriptors of PIP. As such the Appellant was not entitled to an award of PIP as from the date of claim (20 February 2023). Following an unsuccessful mandatory reconsideration, the Appellant appealed to the FTT. On 2 August 2024 the FTT allowed the Appellant’s appeal, scoring her at 8 points for PIP daily living descriptors 1(d), 4(c), 6(c), 9(b) and 0 points for the PIP mobility descriptors. The points scored were therefore sufficient for the Appellant to be awarded the standard rate of the daily living component for the period from 20 February 2023 to 14 July 2024.
The grounds of appeal
The Appellant’s grounds of appeal to the Upper Tribunal were summarised by her representative as follows:
… the Tribunal have made insufficient findings of fact and gave inadequate reasons for their conclusion in their treatment of activities 1,2, 5, and 11 as well as in their treatment of the evidence. This was a closed period award running from 2/2/23 [a typo for 20/02/23] to 7/7/24, the appellant had made a subsequent claim for PIP that was successful resulting in an award of Enhanced rate Care and Standard rate mobility, awarded from 8/4/24.
There is a strong emphasis on the deterioration of the appellant’s condition after 16/06/23, despite the fact that the appellant had a diagnosis of OCD at the time of the decision that was significantly impacting her ability to carry out several of the activities in question.
I gave permission to appeal, commenting as follows:
The Appellant’s grounds of appeal are arguable. I note the FTT placed some emphasis in its decision on the admitted deterioration after 16 June 2023, but of course the Appellant may have qualified for e.g. the enhanced rate of the daily living component before that date and then got worse. In that context it is questionable whether the FTT found sufficient facts or gave adequate reasons for its decision as a whole.
Mrs H Hawley, the Secretary of State’s representative in these proceedings, supports the appeal. She sums up her analysis as follows:
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 statement of reasons (SOR) with regards 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.
Upon reading the SOR I would concur with UT Judge’s Wikeley’s observations when granting permission to appeal, in so far as it appears that the FtT have placed some emphasis on the fact that there has been reports of a deterioration in the claimant’s mental health conditions that were made following the date of the decision under appeal 16/06/2023 [Additions C p.1, D p.1 Ep.1 and F pp.1-4]. The emphasis placed by the FtT on the change in the claimant’s circumstances may leave the reader confused as to how the FtT viewed and assessed the evidence before them regarding the difficulties the claimant reported when undertaking the claimed daily living and mobility activities at the date of the decision under appeal.
Having reviewed the evidence, Mrs Hawley continues her analysis as follows, taking by way of example daily living activity 1:
Turning to daily living activity 1, the FtT upon considering the evidence before them found that the claimant satisfied daily living descriptor 1(d) – Needs prompting to be able to either prepare or cook a simple meal and provided the following reasons for their decision at paragraph 14a of the statement of reasons (SOR):
“…We awarded 1d. The submission asked for 1f on the basis that the appellant cannot enter the kitchen at all. In our judgement, she lacks the motivation to enter the kitchen in case she finds crumbs that may set off her rituals. The Tribunal is satisfied that at the date of the decision; she could be prompted to enter the kitchen to make a simple meal if the kitchen was crumb free. There is otherwise nothing wrong with her limbs or cognition that would have prevented her from preparing and a simple meal for herself.”
The FtT’s reasoning (repeated above) appears limited, seemingly placing a disproportionate weight on the claimant’s need for prompting to actually get into the kitchen and the finding that the claimant has no physical or cognitive difficulties that would prevent her from preparing and cooking a simple meal if the kitchen was crumb free. There seems to be an assumption by the FtT that once in the kitchen the claimant would not encounter any difficulties with undertaking the activity but is this actually the case? Notwithstanding of what would happen if the kitchen was not crumb free.
The claimant reported to the Healthcare Professional (HP) who conducted the telephone assessment on 24/05/2023 [p.60] that she:
“…finds kitchen difficult…OCD issues in the kitchen, no matter what room or activity she is doing it affects her, gets a thought in her head for example "if you don’t do this something bad will happen" for example picking things up and stepping over things on the floor so this overall makes her less motivation. Not a hallucination just an impulsive thought.”
The FtT in reaching their conclusions have not made any findings regarding the functional impact that the claimant’s OCD, rituals, or intrusive thoughts, may have on her ability to undertake the tasks related to preparing and cooking a simple meal. It is notable that the Consultant Child and Adolescent Psychiatrist refers to the claimant’s OCD as being “…clinically significant and causes a lot of distress …” [p.14]. In light of the above detailed evidence should not the FtT as a minimum established using their inquisitorial duty how the claimant once in the kitchen would be able to cook and prepare a simple meal, in accordance with the provisions of regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 (the PIP Regs 2013).
It is my submission that there appears to an inadequacy of fact finding made by the FtT within the SOR to support and explain why they awarded the claimant 2 points for daily living descriptor 1(d) rather than a higher scoring descriptor within the activity given the evidence regarding the significant functional impact that the claimant’s OCD on her day to day life. As such I submit that the FtT has materially erred in law and that further findings are required with to regards the difficulties the claimant may have preparing and cooking a simple meal.
Mrs Hawley then sets out the difficulties she also sees with the FTT’s treatment of daily living activities 2, 5 and 9 as well as mobility activity 1. For completeness, I should add that the Appellant’s representative has no further substantive observations.
Analysis: a summary
I agree with the detailed analysis of the Secretary of State’s representative in her written submission on the appeal, as summarised above.
I am accordingly satisfied that the First-tier Tribunal erred in law for those reasons. I therefore allow the Appellant’s appeal to the Upper Tribunal, set aside (or cancel) the Tribunal’s decision and remit (or send back) the original appeal for re-hearing to a new tribunal, which must make a fresh decision.
What happens next: the new First-tier Tribunal
There will therefore need to be a fresh hearing of the appeal before a new First-tier Tribunal. Although I am setting aside the previous Tribunal’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to PIP for the period in issue (on which see further below) and, if so, which component(s) and at what rate(s). That is a matter for the good judgement of the new Tribunal. That new Tribunal must review all the relevant evidence and make its own findings of fact.
In doing so, however, unfortunately the new Tribunal will have to focus on the Appellant’s circumstances as they were as long ago as in June 2023, and not the position as at the date of the new hearing, which will obviously and regrettably be more than two years later. This is because the new Tribunal must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998). The original decision by the Secretary of State, which was appealed to the FTT, was taken on 16 June 2023.
The new Tribunal will also note it is dealing with the appeal as only covering a closed period. This is because the Appellant made a further successful claim for PIP on 8 April 2024. On this occasion a DWP decision-maker on 14 July 2024 awarded her the enhanced rate of the PIP daily living component and the standard rate mobility component for the period from 8 April 2024 to 30 June 2027, having scored 13 points for daily living descriptors (1d, 3b, 4c, 6c, 9c, 10c) and 10 points for mobility activities (1d). As a result, the FTT hearing the remitted appeal will therefore only be dealing with the closed period from 20 February 2023 to 7 April 2024.
The mere fact that a higher award of PIP has been made for a later period is no guarantee that the remitted appeal will be successful, not least as the evidence may well be different for the different periods in question.
Conclusion
I therefore conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The case must be remitted for re-hearing by a new tribunal subject to the directions set out above (section 12(2)(b)(i)). My decision is also as set out above.
Nicholas Wikeley
Judge of the Upper Tribunal
Authorised by the Judge for issue on 20 November 2025