SM v The Secretary of State for Work and Pensions

SM made a claim for personal independence payment (“PIP”) on 24 March 2023. The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, asked SM to take part in a telephone medical assessment on 15 June 2023. On 30 June 2023, having received advice from that assessment, DWP awarded SM 10 points for the PIP daily living activities (descriptors 1.b, 3.b, 4.e, 6.b and 10.b. DWP also awarded SM 8 points for the PIP mobility activities (descriptor mobility 2.c). As a result, DWP decided SM was entitled to both PIP components, both at the standard rate.

On 23 October 2023, SM appealed to a First-tier Tribunal. On 30 May 2024, a First-tier Tribunal (“FTT”) heard SM’s appeal as a remote video hearing at Sheffield. The FTT refused SM’s appeal and confirmed DWP’s decision.

On 09 January 2025, SM applied to the Upper Tribunal for permission to appeal against the FTT’s decision. On 05 March 2025, I granted SM permission to appeal on the basis it was arguable the FTT had made one or more of the following errors of law:

Mr Wadham is the Secretary of State’s representative in these proceedings. He supports the appeal in a detailed and helpful written submission dated 11 April 2025. Mr Wadham invites the Upper Tribunal to set aside the FTT’s decision dated 30 May 2024 for containing material errors of law, for the reasons set out below.

Misdirecting itself in law about the test to apply for daily living activity 9 (engaging with other people): Mr Wadham highlights that paragraph 29 of the FTT’s Statement of Reasons states SM explained she would find it difficult to engage if, for example, there were four couples she would have to socialise with. In paragraph 30 of the Statement of Reasons, the FTT wrote that it had found: “engaging socially did not have to be with a group of people, it could be undertaken with one person or a couple of people”.

Mr Wadham refers to AM v SSWP [2017] UKUT 0007 (AAC) (“AM”). At paragraph 23 of AM, Upper Tribunal Judge Jacobs stated that:

“Engaging face to face is by definition only possible on a one-to-one basis or within a small group. That is the function being tested by the Activity. It is not possible to engage with a large crowd face to face, although it is possible to engage with people within that crowd or in small numbers.”

Mr Wadham submits it is unclear whether the FTT had AM in mind when it considered the example SM gave of engaging with four couples. He submits that on reading the Statement of Reasons as a whole, it appears from the FTT’s wording that it limited its consideration of SM’s ability to engage, to interactions with one or two people. He submits the FTT made an error of law by materially misdirecting itself about the test to be applied for assessing PIP daily living activity 9.

Failing to make adequate factual findings or provide adequate reasons to support its decision: In relation to the second ground, Mr Wadham observes that at paragraphs 11 to 22 of its Statement of Reasons, the FTT provided a reasonably detailed consideration of some of SM’s conditions reported at the time of the PA4 medical assessment. The conditions considered in those findings were long Covid, symptomatic sinus tachycardia, chronic fatigue syndrome (CFS), and an umbilical hernia.

In paragraph 32 of the Statement of Reasons, the FTT stated that SM had no prescribed medication for her mental health, and had received no counselling, therapy, or referral to a Community Mental Health Team. Mr Wadham observes that at paragraph 35 of the Statement of Reasons, the FTT stated SM did not have a mental health condition that would cause her to be unable to plan and follow a journey unaided. He submits there was no apparent further consideration of SM’s mental health in the Statement of Reasons.

Mr Wadham submits that the FTT does not appear to have explored all the medical conditions SM reported. He highlights that SM reported in her PIP2 questionnaire that she also had morbid obesity and hypothyroidism. SM also alluded to experiencing low mood when providing details of the difficulties she had with PIP activity 9 (engaging with other people). SM also highlighted these difficulties in a diary she provided, showing she was not engaging with people outside her household on the majority of days in an unspecified Sunday to Thursday period.

Mr Wadham also submits that a GP factual report completed by Dr. Ning, listed SM experiencing low mood and anxiety as a disabling condition. He submits that since the FTT has not made specific findings about whether SM experienced anxiety and low mood, it is unclear whether the FTT considered adequately her mental health and its impact on her ability to engage with other people face to face.

Mr Wadham also argues there is an ambiguous statement in the PA4 report, which refers to SM working from home with one day in the office (pages 48, 52 and 53 of FTT appeal bundle). In the report’s summary about activity 9, however, the healthcare professional recorded that SM was working full time in her non-clinical office-based role five days a week (pages 48, 52-53 and 64 of FTT appeal bundle). Mr Wadham submits this discrepancy does not appear to have been addressed in the Statement of Reasons. He argues that it is therefore unclear whether the FTT considered this evidence as indicating SM attended the office for one day, or five days, per week.

Mr Wadham submits that if SM is working from home for four days out of five, and not going out otherwise, it could be argued she is not engaging with other people face to face on the majority of days within the required period. Mr Wadham argues that this was therefore an important finding for the FTT to have made but it failed to do so.

Mr Wadham also submits that while the FTT stated in paragraph 10 of the Statement of Reasons that it has considered regulations 7(1) and (3) of the Social Security (Personal Independence Payment) Regulations 2013, the evidence provided by SM does not indicate she was engaging with other people regularly. He submits that while the FTT provided several paragraphs about this activity, it did not make clear findings about the frequency of SM’s social interactions, in order to show it had fully considered regulation 7(1).

Mr Wadham also refers to the fact the FTT briefly acknowledged SM had recently been diagnosed with attention deficit hyperactivity disorder (ADHD), between the mandatory reconsideration process and SM lodging her appeal. He observes that the FTT decided this “could, and most probably would, be addressed by specialist secondary health care”. Mr Wadham refers to the evidence dated 20 December 2023 in the appeal bundle that SM’s symptoms of ADHD had been present since childhood (Addition A, pages 6 to 9 of FTT appeal bundle).

Mr Wadham highlights that SM’s representative had made written submissions to the FTT that even though her ADHD was a new diagnosis. It should be considered within the appeal as the symptoms would have been present at the time SM applied for PIP. He argues it is more likely than not these symptoms would have been present at the time of the PA4 report, but the FTT did not adequately consider the effect of them on SM’s ability to engage with other people face to face.

Mr Wadham submits the FTT therefore did not made adequate factual findings or provide adequate reasons to support its decision. He submits this is material, because SM had been awarded 10 points for daily living activities, and had she scored 2 points or more for daily living activity 9, she would have been awarded the enhanced rate of the PIP daily living component.

Given Mr Wadham’s submissions, SM’s representatives have, understandably, confirmed they do not wish to make any further submissions.

Neither party asked for a hearing. I took that into account. Having looked at the matter for myself, I decided an oral hearing is not required. The parties agree the FTT made material errors of law. 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.

Mr Wadham submits the FTT has failed to resolve SM’s working pattern in terms of working from home. However, the FTT did provide a narrative account of her working pattern at paragraph 1 of its Statement of Reasons. The FTT wrote that SM worked from home 4 day a week and one day in the hospital. whether SM was working from home four days a week and at home one week. I am satisfied this is sufficient to amount to the FTT resolving the conflict about SM’s work pattern through making a finding of fact about it, even though it is not addressed under the FTT’s Heading: “FINDINGS”.

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 Wadham at paragraphs 5 to 11 and 14 to 17 above, dealt with in more detail by his submission dated 11 April 2025.

Having decided the FTT’s decision involved material errors of law, I have decided to use my discretion to set aside the Tribunal’s decision dated 30 May 2024, applying section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Applying section 12, I must decide either to remit (send back) the case to the First-tier Tribunal to decide afresh, or to decide the case myself.

None of the parties asked me to decide the case myself. Furthermore, this is a case where more facts need to be found, and the Tribunal needs to think about all the medical evidence. 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 SM’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about the level of SM’s PIP entitlement at the date of DWP’s decision on 25 June 2023.

Although I have set aside the FTT’s decision dated 30 May 2024, I am not making any findings, or expressing any view, about the level of SM’s PIP entitlement. The next tribunal will need to hear evidence, make its own findings of fact, and provide its reasoning for the decision it reaches.