MS v The Secretary of State for Work and Pensions

On 12 October 2020, MS made a claim for personal independence payment (“PIP”). The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, awarded MS 8 points for daily living activities and 10 points for mobility activities, and therefore awarded him the standard rate of both the daily living and mobility components of PIP from 12 October 2020 to 08 December 2023.

DWP carried out a planned review of MS’s PIP award. DWP asked a healthcare professional to carry out a paper-based review of MS (PA3) on 08 August 2023. On 29 August 2023, DWP decided MS scored 2 points for daily living activities and 0 points for mobility activities. As the threshold for an award of PIP is 8 points, DWP therefore decided that MS’s PIP claim came to an end.

MS appealed to a First-tier Tribunal on 10 October 2023. MS’s appeal was determined after a face-to-face hearing on 15 August 2024 by a First-tier Tribunal (“FTT”). The FTT allowed MS’s appeal to the extent that it decided he scored 10 points for mobility activities and therefore was entitled to the standard rate of the PIP mobility component from 29 August 2024 to 231 December 2025. The FT awarded MS 4 points for daily living activities, which was insufficient for him to have an award of the daily living component of PIP.

On 31 March 2025, the Upper Tribunal received an application from MS, asking for permission to appeal against the FTT’s decision. In a decision dated 06 June 2025, I granted MS permission to appeal on the basis it was arguable the FTT had made one or more of the following errors of law.

Adequacy of findings of fact and / or reasons about the functional effects of MS’s PTSD: It was not clear what the FTT decided in relation to the effects of MS’s PTSD. The FTT referred to MS saying he had PTSD (page 170 of the appeal bundle). However, MS’s GP had recorded this as an active problem for MS. The FTT made various references to MS’s mental health at paragraphs 54, 61 and 79 and 88 of the Statement of Reasons. Reading these together, the FTT appeared to be saying that MS had relatively low doses of medication for his mental health in 2023, and that there was insufficient evidence to support his PTSD following a stabbing in 2017 being triggered again (after a second stabbing). However, the FTT also explained that at the appeal hearing, MS used pressured speech and consistently repeated what he was saying.

It was difficult to reconcile the different statements the FTT was making, and it has not set out clearly what effects MS’s PTSD had on him at the date of DWP’s decision on 29 August 2023. It is arguable the FTT failed to make adequate factual findings and / or provide adequate reasons for its decision on this issue. This may indicate an error of law.

Preparing food: the DWP decision MS was challenging was a supersession decision (which means DWP changed his previous PIP award based on it). The FTT therefore needed to explain what it made of the previous award of descriptor 1(e) for preparing food and, if it did not consider MS still merited that award, to explain why. It is arguable that the FTT has not explained adequately why it decided MS did not need supervision or assistance to prepare food.

Engaging with other people: the FTT wrote that MS had lived in approximately 10-15 sets of shared accommodation in the past 2 years (paragraph 33 of Statement of Reasons). It was aware MS had been stabbed twice, the second time when he knew the person who stabbed him (paragraph 27). The FTT wrote that MS had been arrested for carrying a bladed instrument and was asked to leave his university due to possessing a bladed weapon (paragraph 28).

The FTT decided MS you needed social support to engage with other people, but did not explain who would provide him with the relevant social support (which can include prompting if given by specific people) and why that would allow MS to engage with other people within the meaning of regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013, in particular, to an adequate standard. The FTT did not explain whether it had considered MS against a higher scoring descriptor for this activity. It is arguable the FTT failed to make adequate factual findings and / or provide adequate reasons for this part of its decision. This might indicate an error of law.

Planning and following a journey: the FTT wrote at paragraph 79 of the Statement of Reasons that it concluded that given the level of MS’s PTSD, it is more likely than not that he would not be able to plan and follow a route without overwhelming psychological distress. The FTT has not differentiated between familiar and unfamiliar routes, but they score different points. It therefore has not explained clearly why it considered MS could manage familiar routes. Nor is it clear the FTT considered MS’s ability to follow routes using a range of different journeys (e.g., on foot, by bus, train, taxi and / or car). This might indicate an error of law.

Mr May is the Secretary of State’s representative in these proceedings. He has provided a helpful written submission dated 05 August 2025. Mr May supports the appeal and invites the Upper Tribunal to set aside the FTT’s decision dated 15 August 2024 for containing material errors of law, for the reasons set out below.

Adequacy of factual findings and / or reasons for its decision: Mr May submits that paragraphs 51 and 54 of the FTT’s Statement of Reasons appear to suggest that the FTT decided MS was no longer suffering from PTSD at the date of DWP’s decision on 29 August 2023. Alternatively, the FTT might have decided that the MS’s PTSD no longer had sufficient impact on preparing food for him to score any points for that activity. However, the FTT then went on to award MS descriptor 9.c (4 points) and mobility 1.d (10 points) on the basis of his mental health conditions. Mr May submits this indicates a lack of consistency in the FTT’s Decision and therefore indicates an error of law.

Adequacy of factual findings and / or reasoning in relation to engaging with other people face to face (PIP daily living activity 9): In relation to this activity, the FTT wrote at paragraph 74 of the Statement of Reasons that MS would have some difficulties forming relationships and although he had moved from various places in the past 12 months, he had not stayed anywhere relatively long. The FTT wrote that MS was going to the gym and was engaging with people. The FTT also, however, accepted that MS “would have difficulties meeting people, he said he has a distrust in people”. Mr May argues that the FTT has not made clear how MS was engaging with people at the gym, including whether he was doing this unassisted, and if not, who was providing him with support (and how). Mr May submits that given this, it is difficult to understand how the FTT differentiated between MS requiring prompting and social support to engage with other people.

Mr May also submits that the FTT wrote at paragraph 36 of the Statement of Reasons that MS was arrested for having a knife but has not explained how this affected its choice of descriptor 9.c for his ability to engage with other people. Mr May also argues that it is unclear whether the FTT considered why social support would allow MS to engage with other people to an acceptable standard within the meaning of regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013. The FTT also did not explain whether it had considered MS against a higher scoring descriptor for that activity.

Adequacy of factual findings and / or reasoning in relation to planning and following a journey (PIP mobility activity 1): Mr May submits that the FTT explained at paragraph 79 some reasoning for why it awarded MS descriptor 1.d (10 points) for the activity of planning and following journeys. However, the FTT had not explained whether it considered if MS should be awarded the higher scoring descriptor of 1.f (12 points) in relation to the effects of his mental health on undertaking journeys. Mr May submits that when he filled out the PIP2 award review form, MS wrote that he found it: “harder to follow a route…get taxi everywhere because I’m scared to walk…I need someone to take me where I need to go”. Mr May argues that the FTT does not appear to have addressed this evidence in its Statement of Reasons and this is an error of law.

Mr May argued that given what MS wrote in his award review form and that planning and following a journey was harder since the last award, it was incumbent on the FTT to use its inquisitorial function to establish if MS was able to plan and follow a familiar and / or unfamiliar journey and whether (as MS had said), he needed someone with him for this. Mr May submits that the FTT failed to make factual findings about whether FTT could plan and follow a range of journeys (e.g., on foot, by bus, train, taxi and / or car). Mr May argues this was an error of law.

Finally, Mr May submits that the FTT’s Decision does not appear internally consistent, or has failed to provide sufficient reasoning for MS and other readers to understand why the FTT chose specific PIP descriptors for MS. Mr May submits that, overall, the FTT has failed to find adequate facts or provide adequate for its Decision. This includes failing to address MS’s own evidence, and that from the medical evidence provided in the appeal. Mr May submits that while it is for the FTT to attach the weight it chooses to particular pieces of evidence, the FTT failed to give adequate reasons for why it preferred some evidence to other evidence and did not accept some of MS’s evidence.

On 13 August 2025, MS replied to Mr May’s submissions, stating he had been fighting his case for 2 years and it was getting ridiculous. MS then wrote that he would like a face-to-face hearing but did not give reasons for this.

The Secretary of State’s representative did not ask for a hearing. MS said he wanted a hearing but it is unclear whether he was referring to a hearing of the appeal to the Upper Tribunal about whether the FTT had made an error of law, or whether MS was referring to a new hearing of his appeal to the FTT.

I took into account that MS was saying he wanted an oral hearing. Having done so and having looked at the submissions and evidence in the appeal, I decided an oral hearing is not required. The parties agree the FTT made material errors of law. Listing a hearing of MS’s appeal to the Upper Tribunal would simply add delay to getting his appeal to the FTT resolved and it is clear that MS does not want there to be any further delay of that. I decided 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 Mr May at paragraphs 12 to 17 above (and in more detail in his submissions dated 05 August 2025).

I have decided the FTT’s decision involved material errors of law. I have decided to use my discretion to set aside the FTT’s decision dated 15 August 2024. I do so, using the legal power in section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Section 12 of the 2007 Act requires me either to remit (send back) the case to the First-tier Tribunal to decide afresh, or to decide the case myself.

Neither party has specifically asked me to remake the decision. When he asked for a hearing, MS may have thought that the Upper Tribunal would be able to decide his overall PIP appeal. However, the FTT, which includes the expertise of a medically qualified member and a disability qualified member, made inadequate factual findings in this appeal. Further facts need to be found, including about the effects of MS’s medical conditions on him. The First-tier Tribunal, with its medical and disability expertise, is better placed than an Upper Tribunal Judge to evaluate all the evidence and to make appropriate findings of fact.

I therefore remit MS’s appeal to be reheard before a new First-tier Tribunal. It will make a fresh decision about whether he should be entitled to PIP.

Although I have set aside the FTT’s decision dated 15 August 2024, I am not making any findings, or expressing any view, about whether MS should be entitled to PIP. The next First-tier Tribunal will need to hear evidence, make its own findings of fact, and provide its reasoning for the decision it reaches.