Appeal No. UA-2025-000228-PIP
Between:
SOC
Appellant
- v -
SECRETARY OF STATE FOR WORK AND PENSIONS
Respondent
Before: Upper Tribunal Judge Stout
Decided on consideration of the papers
Representation:
Appellant: Benefit Answers
Respondent: Mr B Wadham (DMA Leeds)
On appeal from:
Tribunal: First-Tier Tribunal (Social Entitlement Chamber)
Tribunal Case No: SC285/24/00222
Digital Case No.: 1700212481875021
Tribunal Venue: Birmingham (in person)
Decision Date: 3 October 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 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 3 October 2024.
The appellant is reminded that the new First-tier Tribunal can only consider the appeal by reference to their health and other circumstances as they were at the date of the original decision by the Secretary of State under appeal (namely 6 September 2023).
If the appellant has any further written evidence to put before the First-tier Tribunal relating to that period, including any further medical evidence, this should be sent to the relevant HMCTS regional tribunal office within one month of the issue of this decision.
The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.
These Directions may be supplemented by later directions by a Tribunal Caseworker, Tribunal Registrar or Judge in the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
Introduction
The appellant appeals against the First-tier Tribunal’s decision of 3 October 2024 refusing the appellant’s appeal against the decision of the Secretary of State of 6 September 2023 that the appellant was not entitled to Personal Independence Payment (PIP) under Part 4 of the Welfare Reform Act 2012 (WRA 2012) and The Social Security (Personal Independence Payment) Regulations 2013 (SI 2013/377) (the PIP Regulations).
The First-tier Tribunal’s Statement of Reasons (SoR) was issued on 19 November 2024 and permission to appeal was refused by the First-tier Tribunal in a decision issued on 17 February 2025. The appellant filed the notice of appeal to the Upper Tribunal on 25 February 2025 and I granted permission to appeal in a decision sent to the parties on 14 April 2025.
The Secretary of State supports the appeal and the parties have consented to me giving a decision on the papers. I am content that it is appropriate to do so given the lack of dispute and the narrow scope of the appeal.
The Tribunal’s decision
In this case, the appellant’s main restricting health condition was chronic fatigue syndrome. The Secretary of State had awarded the appellant 6 points on daily living activities 1b, 4b and 6b and 4 points on mobility activity 2b. The First-tier Tribunal confirmed that decision, notwithstanding that [18] of the SoR states that the Tribunal was not awarding any points under mobility activity 2b.
The grant of permission to appeal
There were two grounds of appeal. I granted permission on both grounds, observing as follows:-
The first ground relates to daily living activity 8. If the appellant was claiming points in relation to that activity, this ground of appeal might have been arguable. As it is, if the Tribunal is correct that the appellant was not claiming points on this activity, then I do not see how its insufficient reasoning could amount to an error of law. However, I do not limit the grant of permission to appeal, but invite the Secretary of State to address in the response whether the appellant was claiming points on this activity and, if so, whether it is accepted there was an error of law or not.
The second ground of appeal relates to mobility activity 1 (planning and following journeys). I agree for the reasons set out in the grounds that it is arguable that the Tribunal has failed to make adequate findings of fact or to provide adequate reasons in relation to the effect of the appellant’s brain fog and dizziness on her ability to plan and follow a route. The Tribunal has just stated without reasons that she is able to do this.
Daily living activity 8
The Secretary of State’s response does not concede that there was any material error in the First-tier Tribunal’s consideration of daily living activity 8, and I agree. The Tribunal’s reasons for finding that the appellant scores 0 points on activity 8 was that “the Appellant was able to read a couple of sentences in English in standard size font independently”. This is very brief reasoning, but it is in my judgment adequate. The word “independently” is sufficient to indicate that the Tribunal has considered the Appellant’s ability to understand as well as her ability to read. Further, the Appellant had not specifically claimed any points in relation to that activity and the reasoning is sufficient to show that the Tribunal has properly considered the matter for itself given the evidence put forward by the Appellant.
Mobility activity 1
As to mobility activity 1, the Secretary of State’s response to the appeal included the following:
Mobility activity 1 was also raised as a ground for appealing to the UT by the claimant’s representative, who argued that the Tribunal did not make adequate findings of fact regarding this activity. The Tribunal addressed this activity in paragraph 19 of the SOR and determined that despite only going out with their husband around 2 days per week, the claimant would be able to follow the route of a journey without suffering from overwhelming psychological distress. In the claimant’s PIP2 questionnaire they reported difficulties with mobility activity 1 due to severe fatigue, instability, lack of balance, anxiety, distress, and frustration [page 38 of the Tribunal appeal bundle]. The report from Dr Mukherjee dated 08/03/2023 highlighted “severe symptoms of fluctuating post-exertional fatigue, cognitive dysfunction, musculoskeletal pain, dizziness and vertigo and loss of physical conditioning” which had progressed, with severe episodes reported [page 47 of the Tribunal appeal bundle]. A further supporting letter from Dr Mukherjee dated 04/03/2024 confirmed that the claimant was “moderately to severely affected with ME/CFS” and that although this had stabilised to a degree, there was no significant improvement [page 2, Addition A of the Tribunal appeal bundle].
During their telephone assessment, the claimant reported being ok on familiar journeys, but unfamiliar ones would cause them to be anxious with anticipation and trembling, leaving them drained, with anxiety present before, during and after the journey. The claimant also reported having brain fog and forgetfulness, although this was in relation to their medication [pages 52 - 53 of the Tribunal appeal bundle]. In the grounds for appeal in the claimant’s SSCS1 they stated their symptoms included severe fatigue, dizziness, brain fog, and sensitivity to noise and light [page 3 of the Tribunal appeal bundle].
The claimant’s reports of brain fog have been consistent, and cognitive dysfunction is recorded as a symptom of the claimant’s condition in Dr Mukherjee’s report. However, I note the Tribunal has not addressed any matters other than those related to mental health in their consideration of mobility activity 1. In particular, there is no recorded consideration of the frequency, severity, symptoms, and impact of the reported cognitive difficulties. The claimant did list brain fog as one of their symptoms in their SSCS1 [page 3 of the Tribunal appeal bundle. This arguably means that considering cognitive impairments should have been addressed as part of the Tribunal’s inquisitorial role.
Given the claimant’s reports of brain fog, and supporting evidence for cognitive dysfunction, it is not clear to the reader how the Tribunal have decided that the claimant can manage mobility activity 1 reliably, repeatedly, and whether they can do so without prompting or assistance on the majority of days, as outlined in regulations 4 and 7 of The Social Security (Personal Independence Payment) Regulations 2013. The Tribunal's failure to address these consistent reports of brain fog and cognitive dysfunction undermines their consideration of mobility activity 1. I therefore respectfully submit that by not addressing these matters, the Tribunal has made an error of law by failing to provide adequate reasons for their decision. This could be considered a material matter, as an award of points for this activity could satisfy the minimum threshold for an award of the mobility component.
In my judgment, the Tribunal has erred in law in its approach to mobility activity 1. The Tribunal’s reasons focus on whether the appellant suffered overwhelming psychological distress when planning or undertaking journeys with her husband, i.e. descriptor 1e. However, that is of course not the only basis on which points can be scored on this mobility activity. In particular, 4 points may be scored if prompting is needed to be able to undertake any journey to avoid overwhelming psychological distress to the claimant (1b) and 10 points is scored if a person cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid (1d).
The Tribunal records the Appellant’s evidence that she only goes out with her husband, but then concludes that this is a “preference” and that she could plan and follow a journey without him. Its reasons do not specifically address her need for prompting, nor is there any explanation as to how it has concluded that she is able to follow the route of an unfamiliar journey without her husband. There was (it appears) no evidence before the Tribunal that she does that and her evidence about brain fog is not mentioned. In short, the Tribunal’s reasons are not adequate for the claimant or the Upper Tribunal to understand why she scored zero points on this activity.
Conclusion
The decision of the First-tier Tribunal therefore involves an error of law and I set it aside. The case is remitted to be re-decided by a fresh Tribunal.
Holly Stout
Judge of the Upper Tribunal
Authorised by the Judge for issue on 20 June 2025