SO v The Secretary of State for Work and Pensions

SO made a claim for personal independence payment (PIP) on 22 June 2021. The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, asked SO to take part in a telephone medical assessment on 25 November 2021. Having received advice from that assessment, DWP decided to award SO descriptor 1.b (2 points) for daily living activities and descriptor 2.b (4 points) for mobility activities. As the threshold for an award of either component of PIP is 8 points, DWP refused SO’s claim.

SO appealed to the First-tier Tribunal on 18 March 2022. His appeal was decided following a telephone hearing on 09 February 2024, although SO did not participate (because he could not be contacted). The First-tier Tribunal (“FTT”) awarded SO descriptor 1.b (2 points), 3.b (1 point) and 4.c (2 points) for daily living activities. The FTT maintained the decision to award SO descriptor 2.b (4 points) for mobility activities. As a result, SO scored 5 points for daily living activities and 4 points for mobility activities. The FTT decided SO was not entitled to PIP and refused his appeal.

On 24 October 2024, SO applied to the Upper Tribunal for permission to appeal against the FTT’s decision. He requested an informal pause in his application being considered while he requested the FTT set aside its decision dated 09 February 2024. On 29 January 2025, SO informed the Upper Tribunal that his request had been refused by the FTT.

In a decision dated 16 March 2025, I granted SO permission to appeal against the FTT’s decision on the basis it was arguable the FTT had made one or more of the following errors of law:

Ms Keates is the Secretary of State’s representative in these proceedings. She supports the appeal to the Upper Tribunal in a helpful written submission dated 13 May 2025.

Ms Keates invites the Upper Tribunal to set aside the FTT’s decision dated 09 February 2024 for containing material errors of law, for the reasons set out below.

Dealing with SO’s previous DLA award: Ms Keates observes that SO’s representatives had asked the FTT to consider CH and whether to ask a Presenting Officer for DWP to confirm the grounds on which SO had been awarded DLA. Ms Keates submits that DWP had provided some information about SO’s DLA award (Addition J, page 1-2) including the rate of the award, although DWP had separately stated on 27 April 2022 that it could not provide information as no benefits were listed (which was clearly incorrect).

Ms Keates submits that the FTT’s Statement of Reasons does not explain whether it asked the Presenting Officer present at the hearing to give the information SO’s representatives requested. Nor did the FTT explain whether it decided not to ask (and if so, why). She notes that the FTT did have some details of the DLA award but submits this does not resolve the failure to explain the steps the FTT took in terms of asking about it.

Nor did the FTT’s statement that PIP is a different benefit to DLA, with different tests, explain areas of potential overlap between the two benefits, such as the PIP and DLA mobility components, where SO had been awarded the higher rate of DLA based on difficulties with walking. Ms Keates submits that the DLA evidence about that component might have been relevant to the test it had to apply for PIP.

Whether SO could prepare food “safely” within the meaning of regulation 4(2A): Ms Keates submits it is unclear how the FTT reached its conclusions at paragraph 27 that SO could safely prepare food with aids. Ms Keates submits it is unclear whether the FTT considered SO’s mandatory reconsideration request letter, which referred to accidents and injuries in preparing food. She submits that the FTT does not appear to have addressed the submission from SO’s former representatives on this issue either, which referred directly to RJ and the test it established. Nor did the FTT engage with the evidence in the PA4 report that SO stated he injured himself while cooking and his mother would not let him carry out that activity. Ms Keates submits that the FTT also failed to explain which aids would help SO prepare food, in the circumstances of his conditions.

Whether the FTT considered the impact of fatigue on SO’s ability to carry out PIP daily activities: Ms Keates submits that given the FTT accepted that due to fatigue, SO reasonably required prompting to wash and bathe, it should have considered whether this affected his ability to undertake other PIP daily living and mobility activities. Ms Keates submits the FTT had an inquisitorial duty to establish whether SO’s symptoms from his conditions affected his ability to carry out the PIP activities. It is unclear that the FTT gave adequate consideration to those, or looked at the evidence in a complete, and holistic, manner.

There is a written response to Ms Keates’s submissions, made on behalf of SO. The response thanks the Upper Tribunal for giving permission to appeal and the arguable errors of law identified.

Neither party requested an oral hearing of the appeal. I took these preferences into account and considered the appeal file. I decided the interests of justice did not require an oral hearing. The parties agree there were material errors of law by the FTT. I therefore determined the appeal on the papers. It was proportionate to do so.

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 Ms Keates at paragraphs 7 to 11 above and dealt with in more detail by her submission dated 13 May 2025.

Having decided the FTT’s decision involved material errors of law, it is appropriate to exercise my discretion to set aside the Tribunal’s decision dated 09 February 2024 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act provides that I must either remit the case to the First-tier Tribunal with directions for their reconsideration or remake the decision.

SO’s written response invited me to remake the FTT’s decision. The SSWP asked me to remit the appeal to a new tribunal to decide. In the circumstances, it is necessary for further facts to be found. 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 SO’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about whether he should be entitled to PIP at the date of DWP’s decision of 07 December 2021.

Although I have set aside the FTT’s decision dated 09 February 2024, I am not making any findings, or expressing any view, about whether SO 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.