PS v Secretary of State for Work and Pensions

This appeal by the claimant succeeds. Permission to appeal having been given by District Tribunal Judge Lloyd on 4 July 2024, and in accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007, I set aside the decision of the First-tier Tribunal (‘FTT’) on 13 December 2023 (under reference SC285/23/02224 / 1687-6914-7483-4847) and remit this matter to a differently constituted panel in the Social Entitlement Chamber of the First-tier Tribunal for reconsideration in accordance with the Directions given below.

Both the appellant and the respondent agree that the decision of the tribunal was made in error of law. Both have indicated that they are content for this matter to be dealt with on the papers. Having considered the papers and the submissions, I am satisfied that I can make a decision on this appeal without directly hearing further from the parties. It is fair and just to do so. The submissions and respective positions are clear for the purpose of this onwards appeal, and I explain further below my decision on remittal.

In granting permission in this Personal Independence Payment (‘PIP’) appeal, Judge Lloyd, at paragraph 6 of the decision notice, stated:

“… I find it arguable that the tribunal did not give sufficient consideration to, or explanation of, whether the “reasonable standard” test was applied to Mobility Activity 2. The last sentence of paragraph 29 refers only to “repeatability, speed and safety”. It is arguable that the omission of the term “reasonable standard” was a slip of the pen, given that it was included at paragraph 11. It is also arguable that paragraphs 28 to 29 gave adequate findings and sufficient overview of the evidence in relation to standing and walking that the omission was not material. Nonetheless, on balance, I find that ground of appeal to be arguable.”

Upon issuing case management directions, Upper Tribunal Judge Smith concurred and indicated that she found it also arguable that the other two grounds of appeal may give rise to a material error of law, namely that:

The Secretary of State supports this appeal. In a considered and lengthy response, the respondent clinically analyses the tribunal’s reasons, concluding:

“It is my submission that the Tribunal has erred in law in both its fact finding and duty to provide adequate reasons for its decision. The conclusion 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 in relation to daily living activity 9 – engaging with others, mobility activity 1 – Planning and following a journey and mobility activity 2 – Moving Around, appears to be no more than a rehearsal of evidence and a conclusion without an explanation.

….

When recording their findings in relation to mobility activity 2 – Moving Around (….), it appears that the FtT have failed to have sufficient regard to the evidence and what was observed by the HealthCare Professional (HCP), in particular given the evidence as to whether the claimant was able to mobilise in accordance with Regulation 4(2A) of The Social Security (Personal Independence Payment) Regulations 2013.

….

Whilst the FtT noted at paragraph 22 of the SOR (…) that the claimant was cautious about meeting new people and that he was observed by the HCP as appearing calm and pleasant but did become tearful on 2 occasions. Further noting that the claimant had engaged well during the hearing despite breaking down outside the hearing room and stating he was: “…a bit upset before he came in…” It is unclear if they have considered all the evidence.

….

This is particularly pertinent given that in the Supreme Court decision in SSWP v MM [2019] UKSC 34, which acknowledges that there is an overlap between “social support” and “prompting” when a claimant receives prompting (i.e., reminding, encouraging, or explaining by another person) from a person who meets the definition of a social supporter. Therefore, consideration must be given to whether the claimant’s friend could meet the definition of social supporter.

….

Upon ones reading, given the above it is clear the FtT have regarded several pieces of evidence in parts, when deciding to award points. However, from the reasoning provided it is unclear how they came to their conclusion. The claimant’s evidence and the evidence from the HCP does not appear to have been adequately considered. As such, it is my submission that the FtT’s failure to deal with the totality of the evidence renders its decision erroneous in law.

Although the FtT is entitled to give weighting to whatever evidence that it chooses, where there is conflicting evidence, it must in the first instance explore and consider it a holistic manner and provide sufficient reasons explaining why it preferred the evidence that it had. In this appeal the FtT does not appear to have done that. There appears to be a distinct lack of reference to the evidence provided by the claimant and the medical evidence, which demonstrate the nature of his health conditions. Therefore, it could be said that had the FtT given appropriate consideration to all the evidence, including accurately identifying the effects of the claimant’s conditions, the FtT may have considered the claimant’s limitations. As such, I submit that the FtT have failed to give adequate reasons as to why evidence in parts was not accepted when deciding not to award points.”

The full reasons for the Secretary of State supporting this appeal will be in the remitted bundle.

In a further helpful submission from the appellant’s representative, dated 29 November 2024, I am asked to give reasons and substitute my own decision for the decision of the FTT, on the basis that there is no need for a further hearing and that it is undesirable in the particular circumstances of the case. I am asked to make an indefinite award of the enhanced rate of both the daily living and mobility components.

It is against this background that the matter comes before me.

I am persuaded that the FTT failed to demonstrate that it had properly considered Regulation 4(2A) of The Social Security (Personal Independence Payment) Regulations 2013.

The application of regulation 4 and in particular regulation 4A should be considered a ‘basic’ for all decision makers and tribunals assessing Personal Independence Payment claims. It will not enhance my decision today to set out at length the case law and requirements of each component of the same as this is already contained in publications such as Volume 1 of ‘Social Security Legislation’, but it should be trite and incumbent on all decision makers to not only have regard to the legislation, but where applicable, its interpretation (which will often depend on the facts of the case.)

In this matter the tribunal did make reference to the regulation 4 test and attempted to apply it, but in my judgement the appellant and respondent are correct in their assessment that the tribunal made insufficient findings and gave insufficient reasons about whether walking distances could be accomplished to an acceptable standard (2A(b)).

I make no criticism of the judge, but I note, and no more, that the judge dealing with the permission matter was the same judge who heard the case. That gave the judge the opportunity to review the decision and clarify certain matters. In granting permission to appeal, the judge stated ‘Although not sufficiently clear to review, I find it arguable that the tribunal did not give sufficient consideration to, or explanation of, whether the ‘reasonable standard’ test applied to mobility activity 2. …It is arguable that the omission of the term ‘reasonable standard’ was a slip of the pen, given that it was included in paragraph 11.…’.

I simply remind myself of the judge’s powers under section 9 of the Tribunals, Courts and Enforcement Act to correct and clarify, which may have assisted in this particular case:

Having considered the papers and respective submissions, I concur with the parties that, when recording the tribunal’s findings in relation to Moving Around, the tribunal failed to have sufficient regard to whether the claimant was able to mobilise in accordance with Regulation 4(2A). That was an error of law. The tribunal does not address sufficiently what the claimant had stated in writing in terms of his difficulties, nor the observations and notes taken by the HealthCare Professional. As the Secretary of State points out, at page 144 it is stated that: “Symptoms of pain in his left heel as he has a stump…struggles with walking due to pain…He does not have any good days as everyday is the same there is no variability…He has a walking stick (prescribed) which does not help much as he still has pain and no support on his foot…” and at page 150 it was observed: “Balance on one foot whilst raising right foot off the floor. He held onto his walking stick for moderate support. He declined to balance on his right foot whilst raising left foot off the floor as he stated he could not do due to pain and restriction…” This evidence should have been addressed, if only to be dismissed, with an explanation – so that the appellant could better understand why the tribunal had reached the conclusion it did. That need not have been a lengthy explanation, but something more than what was offered.

Of equal concern, and what I would describe as another ‘basic’, is that the tribunal should have been fixed on the date of the decision when making the above assessment. The hearing was taking place some 16 months later. In the instant matter, the tribunal focused on a number of observations it made at the hearing, such as:

“…Although observed walking into the tribunal room relatively briskly, we accepted that his normal walking pace was slow but was unlikely to be less than half a normal walking pace when taken over modest distances.”

This needed to be contextualised. While the tribunal found the claimant had had the same difficulties for many years, implying no change, the missing link was whether he could walk to an acceptable standard at the time of the decision. In my judgement, without further findings of fact and reasons, this also amounted to an error of law.

While I understand the force of the other appeal grounds, I do not need to go into them in any detail as I am allowing this appeal on the above basis. It should not be assumed therefore that I would necessarily have been persuaded that some of the omissions identified were material to the outcome. I have reached no conclusion in that regard.

I do not need to go further. The appeal succeeds. The remaining issue is what happens next.

This matter has had a lengthy history. I am acutely conscious that the appellant’s representative has asked me to substitute my own decision for that of the FTT. This is understandable bearing in mind how far this claim now dates back. The appellant’s representative is entitled to pray in aid that the appellant is only two points short of the enhanced rate of both the daily living and mobility descriptors.

While I have been tempted to accede to the request to give my own decision on entitlement, I have nevertheless decided not to do so. There are simply too many unknowns in terms of the first tribunal’s fact finding for me to place reliance on what has gone before. This is illustrated by the appellant’s suggestion that the FTTs selection of descriptor 9(b) is arbitrary and that it made insufficient findings of fact about whether prompting alone would facilitate reliable engagement in social situations, and also that the FTT failed to properly consider the appellant’s needs in relation to planning and following journeys and, in particular, it disregarded the medical evidence about the appellant’s vision.

To address these concerns, the assessment of this claim requires consideration by a properly constituted FTT which will include a medical member, and methodically remake the decision based on the law and facts as it finds them to be. Being only 2 points shy of an enhanced award should not in my view dilute the need for a structured and legally correct approach to the assessment of the claim.

This is not just my view, it is the view of the Secretary of State, who equally suggests that the FTT needed to make further findings of fact regarding the appellant’s ability to mobilise within the requirements of Regulation 4(2A).

In the circumstances, I am uncomfortable making the requested indefinite award without assessing in more detail the factual matrix. The FTT is best placed to do that.

I find the FTT have erred in law. The inadequacy of reasons makes it difficult for the appellant to know whether the FTT applied the correct legal tests in assessing the evidence, or in making its findings of fact and arriving at its decision.

As a result, I must reluctantly remit this case to another tribunal to start again.

I wish to emphasise that the fact that the appeal has succeeded at this stage is not to be taken as any indication about what the First-tier Tribunal might decide in due course. This in part is why I have decided to remit this matter. It is correct that the whole case begins afresh.

The decisions of the First-tier Tribunal sitting in Birmingham Civil Justice Centre on 13 December 2023 under reference SC285/23/02224 (1687-6914-7483-4847) is set aside.

This matter shall be referred to a District Tribunal Judge to give listing and case management directions.

In this regard, I recommend an expedited, double slot hearing, before a District Tribunal Judge.