Appeal No. UA-2025-000375-PIP
Between:
SS
Appellant
- v -
The Secretary of State for Work and Pensions
Respondent
Before: Deputy Upper Tribunal Judge Hocking
Decided on consideration of the papers
Representation:
Appellant: Community Legal Representation CIC
Respondent: Mr Wadham
On appeal from
Tribunal: Social entitlement chamber
Tribunal Case No: SC285/23/00295
Tribunal Venue: Wolverhampton
Decision Date: 5/6/2024
DECISION
The decision of the Upper Tribunal is to allow the appeal
DIRECTIONS
This case is remitted to the First-tier Tribunal (“FtT”) for reconsideration at an oral hearing.
It must be heard by an entirely fresh panel.
The FtT must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the FtT’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. While the FtT will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.
The new FtT is not bound by the decision of the previous FtT. Depending on the findings of fact it makes, the new FtT may reach the same or a different conclusion to the previous FtT. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the FtT to which this case is remitted.
These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the FtT.
REASONS FOR DECISION
Decision on the papers
Neither party requests an oral hearing. The parties’ positions are clear and nothing raised by the appeal calls for an oral hearing, which would cause delay. I am satisfied that I can deal with the case fairly on the papers, and that it is in the interests of justice that I do so.
Factual background
The appellant made a claim for PIP on 22 February 2022. There was an HCP assessment on 12 May 2022. By decision dated 18 May 2022 the appellant was awarded no points for either component of PIP. Accordingly she was not entitled to any payment. That outcome was repeated after mandatory reconsideration on 19 August 2022.
The appellant appealed to the FtT. Following a hearing on 5 June 2024 the appellant was awarded two points for daily living activity 7b and no other points for any other activity. Once again she was entitled to no payment.
On 10 March 2025 she appealed to the Upper Tribunal and on 16 May 2025 UTJ Butler gave permission to appeal.
I note (although it does not bear on the outcome of this appeal) that that the appellant made a new claim for PIP on 12 September 2024. This was disallowed on the grounds that a PIP2 questionnaire was not returned. No decision was made in relation to the appellant’s functional ability.
Grounds of appeal
Giving permission to appeal; UTJ Butler said this:
A summary of your appeal grounds is:
The First-tier Tribunal (“FTT”) that decided your appeal appeared to become significantly distracted by your employment, asking the same questions several times and asking about the minutiae of the role;
The FTT failed to explain, beyond a flat refusal of your appeal, how it determined your ability the individual tasks involved within PIP activities;
The FTT placed too much reliance on the healthcare professional’s PA4 report, which it described as reasonable quality, without explanation and despite rejecting the specific and general arguments about its quality that your representatives had raised. Your representative also observes that the FTT relied on the PA4 report despite stating it could not understand why the healthcare professional did not award 2 points for hearing aids but concluded this error did not invalidate the whole report. Your representative argues the FTT granted the report an undeserved level of accuracy, when it was incredibly flawed; and
The FTT appears to have required you to be able to provide that the healthcare professional had got things wrong, which is mostly impossible and in any case is the wrong evidential burden. You only had to prove your entitlement to PIP, on a balance of probabilities. There was no burden on you to prove DWP’s evidence wrong.
The respondent’s reply
The respondent says this (edited for length):
During the hearing, the Tribunal devoted considerable time to questioning the claimant with regards to every aspect of their employment. …There was some useful information gleaned from their questioning with regards to the claimant’s employment, such as reasonable adjustments their employer had put in place, however these were not mentioned in any detail in the SOR.
… approximately 45 minutes of the hearing was spent discussing the claimant’s employment, both directly and indirectly. When that is considered against the total length of the hearing call, which was approximately 1 hour and 17 minutes, that the first 8 minutes and 30 seconds were spent on hold pending the start of the conference call, over 60% of the call length was spent discussing the claimant’s employment. To put that in perspective, on average, when a specific descriptor was discussed outside of the context of employment, this tended to last approximately 1 or 2 minutes, before either moving on to another activity, or returning to further questions on the claimant’s employment. … the Tribunal have erred in law on this point by giving disproportionate weight to the claimant’s employment rather than considering the entirety of the evidence holistically to determine their level of functional ability.
… the Tribunal have not given adequate reasons for their decision. In paragraph 14 of the SOR it is stated that in the Tribunal considered “the medical records did not provide support for the degree of functional loss which she claimed”. …. The reports from the Royal Orthopaedic hospital from early 2021 establish that the claimant had shoulder pain, numerous musculoskeletal problems including; hypermobility syndrome and an indication of early arthritis, with the aim being treatment for “delaying the inevitable total hip replacements… The reports from mid-2022 onwards describe pain in the groin that radiates towards the anterior and lateral thigh, and pain in the hips, with cervical and lumbar back pain discussed with a Specialist Nurse for Chronic Pain Medicine, as well as a diagnosis of plantar fasciitis in both ….
… there was no mention of the reasonable adjustments put in place by the claimant’s employer. … the claimant indicated they were not sure how far they could walk, and … worked on the basis that one double decker bus length would be around 10 metres. The claimant then estimated that the maximum they could walk would be five double decker buses, and then they would need to stop. … the claimant was asked about their chair, that the claimant’s employer put in place for the claimant to rest. The claimant’s response was that it was about 3 bus lengths to the chair, then they would sit down for 5 minutes before continuing a further two bus lengths to their workstation. The claimant also goes into detail regarding their workstation, at which they are seated for the duration of the job preparing food, that all of the ingredients they require are brought to them and placed on their workstation, somebody else will clean up at the end of the shift, and detail on what food, and how they prepare it.
… the claimant also states on several occasions that they experience pain, for example …, the claimant states they cannot take a bath anymore because they are unable to get down and back up due to their back pain, although throughout there are reports of pain when mobilising, dressing and when driving for more than half an hour. …, the claimant also reports difficulties with transitioning to and from the toilet, stating clearly that they have to lean on the radiator and sink to do so. None of this is mentioned in the SOR. This makes the Tribunal’s consideration of regulation 4(2A) of The Social Security (Personal Independence Payment) Regulations 2013 unclear. In paragraph 18 of the SOR the Tribunal stated that they did not accept the claimant had an impaired or severely impaired ability to carry out activities because of pain and fatigue, concluding that the claimant could manage daily living activities 1, 4, 5 and 6, and mobility activity 2 unaided. …there was no explicit mention of regulation 4(2A) and how the Tribunal considered the claimant’s reported pain allows them to complete the activities to an acceptable standard. …
Furthermore, the Tribunal have placed considerable weight on the accuracy of the HP report, even though they have identified errors within it. … In paragraph 15, the Tribunal concluded that the HP report was of reasonable quality, and stated there “may be misunderstanding or miscommunications, but there is nothing to suggest, in the Tribunals view that the HCP invented any of the comments made by (the claimant)”. This fails to address the claimant’s concerns, and when coupled with a later statement in paragraph 15 where the Tribunal could not understand why descriptor 7b had not been recommended by the HP, it is suggested that a stronger explanation would be required as to why the Tribunal found the rest of the report to be reliable and of evidential significance. From my reading of the SOR, and by the Tribunal’s significant focus the minutiae of the claimant’s employment, it could be interpreted that the Tribunal had already reached a conclusion based on the claimant’s employment, and despite finding some inconsistencies, preferred the HP report as this reaffirmed the Tribunal’s own conclusions. If this was the case, it may also explain the Tribunal’s reluctance to engage with the claimant and their representative’s concerns surrounding the HP report. In doing so, the Tribunal may have inadvertently placed too much weight on a potentially flawed piece of evidence, and misapplied their inquisitorial duty as they did not adequately engage with, or explain the dismissal of the claimant’s concerns.
Decision
I begin with appeal ground (b), that the FtT failed to explain how it determined the appellant’s ability to carry out the various daily living and mobility activities. That ground must succeed. I have in mind the Senior President of Tribunal’s practice direction on reasons dated June 2024 and I accept and endorse that a busy FtT does not necessarily have to give reasons at great length, but it must, on each issue, show that it has engaged with the main evidence and connect that evidence to its conclusions. The SoR fail to do this at all adequately. Read charitably it might be possible to infer what evidence supported the FtT’s findings (although even there I would have had my doubts) but what is on any view missing is a discussion of the evidence to the contrary, a holistic evaluation, and then a statement of finding with reasons for preferring one view of the other.
Although not identified as a specific element of this appeal ground the treatment of the impact of pain on the ability to carry out activities is particularly defective. It is necessary to consider the guidance in regard to the guidance in PS v SSWP [2016] UKUT 0326 (AAC) at paragraph 11, which states the following:
What the Appellant was saying in his written and oral evidence was that he suffered pain when he walked, that he would walk slowly for a short distance despite the pain but that it would get worse until the pain would stop him. It could not properly be assumed that, because the Appellant managed to keep going for a certain distance, any pain he experienced while he was walking was not relevant. If a claimant cannot carry out an activity at all, regulation 4(2A) does not come into play. Where a person is able to carry out an activity, pain is clearly a potentially relevant factor to the question whether he or she can do so to an acceptable standard
Those observations are not limited to mobility. Where, as here, an appellant says their ability to carry out activities is affected by pain, and (as here) there is at least some evidence that could support that, then it is necessary to consider not only what the appellant’s functional abilities are, but whether any part of that functionality is achieved only at the cost of such pain that the activity is not being carried out to an acceptable standard, or safely. That must be addressed in terms, and the very brief reference to regulation 4 in the SoR is insufficient.
I also find that appeal ground (a) must succeed. Employment and functionality during employment can certainly be relevant evidence when considering PIP activities, and I am not at all critical of the FtT for exploring the issue. Where the SoR say “the argument that a person whose main activity at work is preparing food does [not] have some relevance for descriptor 1 is difficult to sustain” I have to agree.
Furthermore the weight and significance of particular forms of evidence are a matter for the FtT’s judgement, provided it acts reasonably. However, where, as seems to have happened here, an FtT concentrates excessively on one strand of evidence, the effect may be (and was here, so far as can be gleaned from the SoR) that other just as relevant standards of evidence are then not given reasonable weight. Thus for example the respondent says in effect that the treatment of medical records and evidence is cursory, and I have to agree. So I do not identify the weight given to or time spent on employment as an error of law if looked at in isolation, it is the (apparent) imbalance between that factor and all of the other relevant evidence that I find falls outside an FtT’s broad discretion as to how it weighs the evidence.
Appeal ground (c), though, trespasses on an FtT’s role in evaluating the evidence, and I do not uphold it. No doubt the HCP’s report can be the subject of reasonable criticism, even trenchant criticism. Another FtT might well approach it differently to this FtT. Maybe most would. However I cannot say I feel this FtT’s approach (in so far as it can be determined from the SoR, but that returned to appeal ground (b)) was outside the range of approaches legally open to them. That should not cast doubt on appeal ground (b), and for the avoidance of doubt I will say both that the treatment of the HCP report was not adequately reasoned, or related to the totality of the evidence and the findings, and that the appellant may continue to make criticism of the HCP report at her rehearing. What to make of that criticism will be a matter for the new FtT.
As to ground (d), I cannot find that the FtT imposed the sort of burden of proof argued for. If they had, that would have been an error of law. As Baroness Hale said in Kerr v Department for Social Development [2004] UKHL 23:
Ever since the decision of the Divisional Court in R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble [1958] 2 QB 228, it has been accepted that the process of benefits adjudication is inquisitorial rather than adversarial. …
What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information….
If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, "a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn.
If an appellant says an HCP assessment is unreliable, unless they say in what particulars it is unreliable and why they think that they will not have given the FtT a great deal to work with. In those circumstances perhaps they could not be disappointed if an FtT did not spend very much time or ink on the issue. But that is not the same as there being a burden of proof on the appellant. HCP reports are not self proving. They are simply part of the evidential picture before the FtT. They must always be assessed for relevant and weight as an aspect of an FtT’s inquisitorial function. An appellant may well have something to say about that., but they do not have a burden of proof to discharge.
Conclusion
Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I therefore set the FtT decision aside and remit the case to be reconsidered by a freshly constituted panel. I stress that this appeal having succeeded carries no implication for whether the FtT will or will not reach a decision that is more favourable to the appellant. That is a matter for it.
Stephen Hocking
Deputy Judge of the Upper Tribunal
Authorised by the Judge for issue on 19 December 2025