Appeal No. UA-2025-000303-PIP
Between:
TS
Appellant
- v -
The Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Butler
Decided on consideration of the papers
Representation:
Appellant: Represented himself
Respondent: Mr S. May, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-tier Tribunal (Social Entitlement Chamber)
Tribunal Case No: SC1474/23/00554
Tribunal Venue: Sheffield
Date: 19 September 2024
DECISION
As the decision of the First-tier Tribunal involved the making of an error of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the First-tier Tribunal for rehearing by a fresh tribunal.
DIRECTIONS
The case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.
The new tribunal should not involve any of the panel members previously involved in considering this appeal on 19 September 2024.
The new Tribunal must not take account of circumstances that did not apply at the time of the Secretary of State’s decision dated 11 October 2022. Later evidence can be considered if it relates to the circumstances at the time of that decision: see R(DLA) 2/01 and R(DLA) 3/01.
If the parties have any further written evidence to put before the tribunal, they should send this to the relevant HMCTS regional tribunal office within six weeks of the issue of this decision.
The tribunal hearing the remitted appeal is not bound in any way by the decision of the previous First-tier Tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome from the previous tribunal.
Copies of this decision, the permission to appeal decision, and the submissions on behalf of the Secretary of State (dated 17 June 2025) and TS (dated 15 July 2025) shall be added to the bundle to be placed before the First-tier Tribunal hearing the remitted appeal.
These Directions may be supplemented by later directions by a tribunal judge, registrar, or case worker, in the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
Factual background
TS made a claim for personal independence payment (PIP) on 19 January 2022. The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, asked TS to take part in a medical assessment by telephone on 07 September 2022. Having received advice from that assessment, on 11 October 2022, DWP decided that TS scored no points for either the PIP daily living or mobility activities. DWP therefore refused TS’s claim for PIP.
On 08 March 2023, TS appealed to the First-tier Tribunal. On 19 September 2024, a First-tier Tribunal (“FTT”) heard TS’s appeal face to face at the Sheffield venue. The FTT decided TS did not score any points for any of the PIP activities. The FTT therefore refused TS’s appeal and confirmed DWP’s decision.
Permission to appeal
On 15 March 2025, TS applied to the Upper Tribunal for permission to appeal against the FTT’s decision. On 21 April 2025, I granted TS permission to appeal on the basis it was arguable the FTT had made one or more of the following errors of law:
Failing to apply section 12(8)(b) of the Social Security Act 1998 correctly: the FTT stated that it found TS’s condition had deteriorated since October 2022 (the date of DWP’s decision). Section 12(8)(b) of the Social Security Act 1998 states that when deciding an appeal, a FTT shall not take into account any circumstances not obtaining at the date of the decision under appeal (here 11 October 2022). It appears, however, that, having concluded TS’s condition deteriorated after October 2022, the FTT has decided his appeal by taking into account his circumstances after that date. The following were examples of this in the Statement of Reasons:
paragraph 15, where the FTT referred to TS’s ability to walk on the day of the appeal hearing and how he had managed the walking part of the journey to the hearing centre. The FTT also referred in paragraph 15 to what TS was said to be doing by way of moving around in June 2023;
paragraph 17, where the FTT referred to what TS was doing to manage washing and bathing at the date of the appeal hearing, and then stated that by his own evidence, TS was worse at that date than at the date of DWP’s decision;
paragraph 18, where the FTT referred to TS lifting heavy boxes in January 2023 and to his work as an interpreter, which does not appear to have started by the date of DWP’s decision. See appeal bundle, Addition C, page 1, where on 27 April 2023 TS stated that he had not started work full time as a GP and made no reference to working as an interpreter, and see Addition A, page 11, which referred to TS working as an advanced lifesaving instructor in January 2023); and
at paragraph 18, the FTT also referred to TS travelling to Egypt on a date in 2023 (not specified) and being about to travel to Egypt from Luton imminently (which appears to relate to the date of the appeal hearing). The FTT also referred to TS having spent time in Egypt to look after his mother after surgery, which may have been about what happened after October 2022 (it does not specify);
Failing to make adequate factual findings and / or provide adequate reasons for its decision: Further or alternatively, the ground at (a) above, may indicate the FTT failed to make adequate findings or provide adequate reasons for its decision. The findings made and reasons given are not always clear about the period of time being addressed. It is also arguably unclear what the FTT found TS could manage in the required period covered by DWP’s decision, as opposed to what it decided he could do subsequently. It was also arguable the FTT has not made adequate factual findings about the effects of TS’s medical conditions on him during the required period covered by DWP’s decision dated 11 October 2022. The findings stated at paragraph 14 of the Statement of Reasons refer to TS experiencing symptoms, but not how frequently (in terms of periods of time overall and on individual days when experienced). The FTT also refers to TS’s symptoms worsening after exertion but did not explain what they were like when worse, and how much exertion would make them worsen to that extent; and
Resolving adequately conflicts in the evidence before it: the FTT had not explained what it made of the medical evidence TS provided in support of your appeal. Some of that evidence related to the position after the date of DWP’s decision, but not all of it (see, for example, the consultant endocrinologist letter dated 25 September 2017 at page 8 of appeal bundle). Further or alternatively, the FTT referred to what it decided was TS’s likely walking ability in June 2023 and at the date of the appeal hearing on 19 September 2024 and his ability to manage daily living activities around those time periods, in paragraphs 15 to 18 of the Statement of Reasons. The FTT did not, at paragraph 18 of its Statement of Reasons, clearly reconcile its findings and analysis about those time periods with its reference to TS being awarded the PIP daily component (standard rate) and mobility component (enhanced rate) with effect from July 2023.
The Secretary of State’s submissions
Mr May is the Secretary of State’s representative in these proceedings. He has provided a helpful written submission dated 17 June 2025. Mr May supports the appeal. He invites the Upper Tribunal to set aside the FTT’s decision dated 19 September 2024 for containing a material error of law, for the reasons set out below.
Mr May observes that the FTT referred in paragraph 15 of its Statement of Reasons to TS’s ability to move around in June 2023 and at the date of the FTT hearing on 19 September 2024. Mr May submits there is no information within the Statement of Reasons to explain how what TS was doing in June 2023, or September 2024 identified the difficulties he was having at the time of DWP’s entitlement decision on 11 October 2022. Mr May submits that it appears from the FTT’s findings that it failed to consider the position at the date of DWP’s decision. He also submits it is arguable the FTT took account of circumstances not obtaining at the date of the decision under appeal. This is prohibited by section 12(8)(b) of the Social Security Act 1998. Mr May submits the FTT therefore made an error of law.
In relation to the second appeal ground, Mr May observes the FTT stated in paragraph 15 of the Statement of Reasons that TS walked more than 200 metres in one minute with two stops. He submits that the FTT failed to explain how long each stop was and whether this was considered as part of the duration of the walk. Mr May also submits the FTT should have considered whether it was likely someone could walk more than 200 metres in one minute including two stops.
Mr May also observes that at paragraph 17 of its Statement of Reasons, the FTT wrote that TS had an occupational therapist assessment in Sheffield and was provided with a stool in Leeds some 6 months prior, which was after the relevant period. Mr May submits that although TS was provided with the stool outside the relevant period, the FTT should have considered when the need for the stool arose. He notes that in the PIP2 questionnaire, TS wrote that he needed to use a stool in the shower. However, the FTT did not explain what it made of this evidence in terms of when TS’s need to use the stool arose.
Turning to the third appeal ground (resolving conflicts in the evidence adequately), Mr May observes that the FTT accepted TS suffered cramps, pain, which was worse after exertion but was not for the majority of the time and did not affect his ability to undertake activities repeatedly, reliably and to an acceptable standard. Mr May refers to a consultant’s letter dated 2017, at page 8 of the FTT bundle. This stated that when TS became hyponatraemic his concentration was badly affected as well as his muscle power and he suffered from severe cramps. Mr May submits that it is not clear if the FTT considered or discounted this evidence and whether the FTT investigated how often TS experienced these episodes (and how long they lasted).
Mr May also observes that in the PIP2 medical assessment, TS was recorded in the functional history saying he experienced fatigue after any exertion (FTT bundle, page 53). He submits the FTT does not appear to have investigated further to ascertain how long TS’s fatigue lasted and the impact if had on his ability to carry out the PIP activities.
Mr May also refers to the fact that TS described needing to use a stool in the shower in his PIP2 questionnaire (FTT bundle, page 44) At the PIP medical assessment, TS was recorded stating he would prefer a stool as he found it difficult to lift his leg and bend. Mr May submits it is not clear how the FTT reached their conclusion and how they decided between the statements at hand.
Mr May submits that while the FTT is entitled to give weight to whichever evidence it chooses, where there is conflicting evidence, the FTT must explore it, consider it holistically and explain adequately why it preferred some evidence to other evidence. Mr May submits the FTT deciding TS’s appeal failed to do this, in particular, in relation to TS’s own evidence and the medical evidence. He submits that the FTT has failed to give adequate reasons about why some evidence was not accepted, when deciding not to award TS any points.
TS has provided a reply to Mr May’s submissions. He agrees with Mr May that the FTT wrongly considered events and circumstances after the date of DWP’s decision. TS also argues that the FTT made unclear and inconsistent findings about his functional abilities at the date of DWP’s decision. He submits it is not evident from the Statement of Reasons how frequently he experienced key symptoms (pain, fatigue, cramping), how his condition affected him on the majority of days and how much exertion caused worsening symptoms or how unreliable TS was in his day-to-day function.
TS also argues that the FTT failed to engage properly with, or analyse, his PIP2 questionnaire, his consultant endocrinologist’s letter dated 25 September 2017, the disability assessment report and the fact he needed to use a shower stool before March 2023 (when it was provided). In addition, TS submits that the FTT failed to make clear the difference between factual evidence and judgment and reasoning about it. He also argues the FTT took account of inaccurate information regarding his work, finances, health, and home life.
Why there was no oral hearing of this appeal
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 in its decision. It was proportionate to determine the appeal on the papers.
My decision
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 ground addressed by Mr May at paragraphs 5 to 11 above, dealt with in more detail by his submission dated 17 June 2025.
Conclusion, including disposal
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 19 September 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.
Mr May asked me to remit the appeal to a new FTT. TS asked me to decide the case myself. I have taken into account TS’s request. However, this is a case where more facts need to be found, and the Tribunal needs to analyse the medical evidence. The First-tier Tribunal is best placed to evaluate the evidence, using its medical and disability expertise, and to make appropriate findings of fact.
I therefore remit TSs 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 on 11 October 2022.
Although I have set aside the FTT’s decision dated 19 September 2024, I am not making any findings, or expressing any view, about whether TS should be entitled to PIP for the closed period from 11 October 2022 to .13 July 2023 (closed because of TS’s PIP award starting on 14 July 2023). The next tribunal will need to hear evidence, make its own findings of fact, and provide its reasoning for the decision it reaches.
Judith Butler
Upper Tribunal Judge
Authorised by the Judge for issue: 09 November 2025