AN v Secretary of State for Work and Pensions

This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

The First-tier Tribunal hearing the remitted appeal shall not involve any members of the panel whose decision the Upper Tribunal has set aside.

If any party has any further evidence to put before the First-tier Tribunal this should be sent to the regional office of Her Majesty’s Courts and Tribunals Service within one month of the date on which this decision is issued. Any such further evidence must relate to the circumstances as they were at the date of the decision of the Secretary of State under appeal.

The panel 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 panel may reach the same or a different outcome from the previous panel.

Copies of this decision shall be added to the bundle to be placed before the panel of the First-tier Tribunal hearing the remitted appeal.

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.

This appeal relates to a decision of the First-tier Tribunal dated 19 February 2024. In that decision the Tribunal confirmed the Secretary of State’s decision to award no points for the daily living component of personal independence payment (PIP) and no points for the mobility component.

The Appellant suffers from anxiety, depression, disc bulges in her neck, irritable bowel syndrome and has, since the relevant time, been informed of a diagnosis diabetes. At the relevant time she had recently had an abnormal smear test result. She was referred to a pain management clinic for chronic pain on 6 December 2022.

At the relevant time the Appellant was prescribed paroxetine (30mg), propanalol (10mg) and naproxen (500mg) and amitriptyline (10mg). She has been prescribed sertraline (100mg) since 21 December 2022.

The Appellant made a claim for PIP on 26 September 2022. She submitted a PIP2 form on 10 October 2022. The Appellant had a telephone consultation with a Health Care Professional (HCP) on 7 December 2022.

A decision maker determined on 14 December 2022 that the Appellant should be awarded no points for the daily living activities and no points for the mobility descriptors. The Appellant was not entitled to either component of PIP. The decision was upheld on mandatory reconsideration. The Appellant appealed to the First-tier Tribunal.

The First-tier Tribunal in a decision dated 19 February 2024 awarded the Appellant no points for daily living activities and no points for the mobility component. The Appellant was not entitled to any award of PIP.

The Appellant was not present at the tribunal hearing. She applied to set aside the decision. In a decision dated 8 March 2024 District Tribunal Judge Moss refused to set aside the decision.

The Appellant applied for a statement of reasons, which was provided. The Appellant applied for permission to appeal to the Upper Tribunal.

Tribunal Judge Lees refused permission to appealon 5 June 2024on the basis that there was no error of law in the First-tier Tribunal’s decision.

The Appellant renewed her application to the Upper Tribunal. Upper Tribunal Judge Wright gave permission to appeal on 12 December 2024 for the following reasons:

‘4. First, it is arguable the First--tier Tribunal erred in law in paragraph 26 of the reasons for its decision of 19 February 2024 and in its refusal to set aside decision 8 March 2024 in failing to identify the evidential basis for its view (a), in paragraph 24 of its reasons that [the Appellant] in fact had caring responsibilities for her 11 year old daughter “way beyond” the “constant caring responsibilities” she would have as a parent; and (b) in refusing to set aside its decision, that [the Appellant]’s daughter was in receipt of the highest rate of the care component and the lower rate of the mobility component of Disability Living Allowance (DLA). The level of the DLA award does not, on the face of it, appear in the appeal papers. If that information was provided by the presenting officer at the hearing, that is not recorded. The most that appears to have been said is in paragraph 21 of the reasons. The First-tier Tribunal’s view that [the Appellant] was in fact able to provide “almost constant care” for her 11 year old daughter was very arguably material to (a) its consideration of [the Appellant]’s ability to care for herself; and (b) its assessment of whether she would have forgotten the hearing date.

5.

Further and in the alternative, it is arguable the First-tier Tribunal misdirected itself as to the law in paragraph 26 of the reasons for its decision of 19 February 2024 in requiring the award of the middle rate of the care component of DLA necessary for an award of Carer’s Allowance to be made to be founded on ‘constant actual involvement in the day to day needs’ of the child. It is arguable that an award of the middle rate of the care component of DLA does not need to be founded either on constant attention provided to the child (the test is frequent attention throughout the day) or constant supervision of the child (the test is continual supervision).

6.

Third, it is arguable the First-tier Tribunal erred in a law in paragraph 27 of the reasons for its decision 19 February 2024 (a) in not identifying the date of the letter the daughter provided, but (b) assuming that it was referring to the letter on page 7, not providing a sufficient explanation for why the arguably limited instances of care the daughter said she was providing for [the Appellant] was inconsistent with the daughter’s DLA award.

7.

Fourth, in approaching [the Appellant]’s evidence (including its credibility and accuracy), both in the 19 February 2024 decision and in the refusal to set aside decision, it is arguable the First-tier Tribunal failed to have any adequate regard to the Secretary of State’s recommendation (on page E of the appeal response), and the reasons for that recommendation, that [the Appellant] needed prompting to engage with others.

The Secretary of State’s representative made thoughtful submissions on the appeal and indicated that the Secretary of State supported the appeal. She asked that the First-tier Tribunal decision be set aside and the matter remitted to a freshly constituted panel of the First-tier Tribunal for redetermination. 

The Appellant made short submissions in reply which I have taken into account. She agreed with the Secretary of State’s submissions. The Appellant agreed with the decision being set-aside and remitted to the First-tier Tribunal, but stated ‘If the Upper Tier Judge can substitute the decision without needing to remit it back to the Lower court for a fresh hearing I would appreciate this as it has had a great impact on my Mental health and I don’t wish to go through it again.’

Neither party asked for an oral hearing. In exercising my discretion I took account of the fact that the Secretary of State supports the appeal and has provided detailed written submissions. I decided that I could fairly determine the appeal on the papers and that it was proportionate and in the interests of justice to do so.

An award of universal credit includes a ‘carer element’ where a claimant has ‘regular and substantial caring responsibilities for a severely disabled person’, which depends on whether they satisfy the conditions for entitlement to a carer’s allowance, apart from the general earnings limit.

Under section 70 of the Social Security Contributions and Benefits Act 1992 (the 1992 Act), a person is entitled to a carer’s allowance for any day on which he is engaged in caring for a ‘substantially disabled person’ if he is regularly and substantially engaged in caring for that person. The Social Security (Invalid Care Allowance) Regulations 1976 provide that the person must be engaged for at least 35 hours a week caring for the substantially disabled person.

The definition of a ‘substantially disabled person’ includes a child in receipt of disability living allowance (DLA) by virtue of entitlement to the care component at the highest or middle rate.

Section 72 of the 1992 Act sets out the conditions for entitlement to the care component of DLA at the highest or the middle rate.

To be entitled to the care component of DLA at the middle rate, a child must either meet the ‘day needs condition’ or the ‘night needs condition’.

The day needs condition is set out in section 72(b) of the 1992 Act:

The night needs condition is set out in section 72(c) of the 1992 Act:

To be entitled to the care component of DLA at the highest rate, a child must have one of the day needs conditions and one of the night needs conditions (or be nearing the end of their life).

Under section 72(1A) of the 1992 Act to be entitled to the care component of DLA at either rate the child must have requirements substantially in excess of the normal requirements of persons of his age or substantial requirements of such a description which younger persons in normal physical and mental health may also have but which persons of her age and in normal physical and mental health would not have.

In PB v SSWP (PIP) [2017] UKUT 493 (AAC) Upper Tribunal Judge Gray said:

“10.

If a Carer's Allowance is in payment to somebody claiming a disability benefit on their own behalf it is understandable for a tribunal to wish to examine that. However it is not axiomatic that the receipt of Carers Allowance precludes entitlement to PIP, and the enquiry cannot start from that premise.

11.

Although the facts will be for the tribunal rehearing the case, the circumstances set out by Ms Gilfoyle refer to the appellant's partner suffering from a psychotic illness, and the possibility, in those circumstances, that the care given is in the nature of verbal support for her mental health problems, rather than physical care. It will be for the tribunal to decide whether the care provided is inconsistent with the physical difficulties claimed.”

In DLA/2499/2011 Upper Tribunal Judge Wikeley made a similar point, although with reference to DLA, because PIP had not yet been introduced:

“The appellant’s representative is right to argue, as Ms Pepper is right to concede, that an award of carer’s allowance is not of itself inconsistent with an award of DLA being made to the person who is herself providing the care. However, as Ms Pepper correctly observes, “findings need to be made to establish the type of care provided by her to her husband and the activities involved”.

In summary, the position is that First-tier Tribunals must not start from the position that an award of carers allowance is in itself inconsistent with an award of PIP, and they must make factual findings on the nature or type of care that is provided and the activities involved, before any conclusion can be drawn on whether providing that care is inconsistent with the Appellant’s physical difficulties.

The First-tier Tribunal’s reasoning on this issue is at paragraph 24:

The tribunal made some factual findings relevant to the care the Appellant provided to her daughter:

First, I find that the tribunal has erred in law in concluding that the award of carer’s allowance was ‘almost inconsistent’ with an award of PIP when it had not made adequate findings of fact on the nature or type of care provided to the claimant’s daughter and the activities involved and, having done so, provided adequate reasons for its conclusions on whether the care provided was inconsistent with the physical difficulties claimed. This is particularly important where, as in this case, the nature of the disability of the person requiring care suggests that it may not be physical care that is needed. The correct approach is as set out in PB v SSWP (PIP) [2017] UKUT 493 (AAC).

Further, the tribunal has not explained the evidential or any other basis for its finding that, as a parent, the Appellant will, absent any additional care needs, already have ‘constant’ caring responsibilities for her child and accordingly has not provided adequate reasons for its conclusion that to have been awarded carer’s allowance she must be providing a level of care ‘way beyond that’.

Second, I find that the tribunal has erred in law because it misdirected itself in law and overstated the level of care needed for an award for carer’s allowance.

The criteria for an award of carer’s allowance founded on an award of DLA to a child are set out above. It is right that for an award of the care component of DLA the level of care needed by a child must be substantially in excess of the normal requirements of persons of that age.

However, for neither the middle nor the highest rate of the care component of DLA does the care need to consist of ‘constant’ ‘actual involvement in the day-to-day needs of the child’.

The day needs condition is satisfied by either ‘frequent attention’ in connection with bodily functions or ‘continual supervision’ to avoid substantial danger, neither of which are necessarily inconsistent with the restrictions put forward by the Appellant.

If the Appellant’s daughter is entitled to the care component of DLA at the higher rate, then the night needs condition will also apply. However, as per PB v SSWP (PIP) [2017] UKUT 493 (AAC) any inconsistency between the award of carer’s allowance and the Appellant’s entitlement to PIP will depend, in any event, on the type/nature of the care and the activities involved rather than simply following from the fact that the criteria for the care component of DLA, whether at the middle or the highest rate, is satisfied.

Third, for related reasons I find that the tribunal erred in law in its approach to the letter from the Appellant’s daughter. Without having made findings of fact on the type/nature of the care provided or the activities involved, the tribunal has not adequately explained why it reached the conclusion that ‘the child is claiming the ability to do the activities that the DLA award indicates she cannot do for herself’ or its conclusion that ‘the mother is not providing the care she claims to be providing’.

I do not need to consider the remaining grounds of appeal because they will be subsumed in the rehearing. The First-tier Tribunal will, no doubt, ensure that it has regard to the Secretary of State’s recommendation (on page E of the appeal response), and the reasons for that recommendation, that the Appellant needed prompting to engage with others.

As explained below, I have set aside the decision of 19 February 2024. For that reason I do not need to consider whether there was any error of law in the decision of 8 March 2024 refusing to set that decision aside.

I find that the First-tier Tribunal erred in law as set out above. I find that these errors were material to the First-tier Tribunal’s findings on the Appellant’s functional abilities and might have made a difference to the points awarded.

For those reasons the appeal is allowed and the decision is set-aside. I have considered the Appellant’s request to re-decide the appeal, but because further facts need to be found and because the First-tier Tribunal is best placed to find those facts, I am not able to do so and I remit the matter to be re-heard by a newly constituted First-tier Tribunal.

The Appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether her appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law on the basis of its findings of fact.