SJ v Secretary of State for Work and Pensions

I am satisfied on the arguments before me that that the First-Tier Tribunal (“the FTT”) erred materially in law in the decision to which it came on 8 April 2025 and that the decision should be set aside as a result.

The appellant’s first ground of appeal argues that the FTT erred in law in placing too much weight on the appellant’s failure to mention her difficulties with cutting up food in documents such as her PIP claim form of 22 November 2019 and the ESA HCP report of 4 July 2023. The appellant argues that these were not failures because the pain in the right shoulder, arm and hand had only begun in January 2024. It is also argued by the appellant under this ground that the FTT had failed sufficiently to establish if the appellant could cut food with her left hand. The same arguments are then repeated in the second ground of appeal in respect of dressing and undressing.

In my judgement, the force in the grounds of appeal is for different reasons to those advanced by the appellant. In essence, the FTT’s material failing was in not addressing sufficiently the appellant’s capabilities to undertake the relevant PIP activities after January 2024. The Secretary of State’s decision under appeal is dated 5 March 2024 and therefore any change in the appellant’s abilities after January 2024 was plainly relevant.

Contrary to the appellant’s argument, it is not apparent that the FTT placed undue weight on the pre-January 2024 evidence in relation to ‘taking nutrition’. The FTT listed all the relevant evidence including, at paragraph 27, the evidence of the pain starting in the right arm and hand in January 2024.

However, where the FTT did err in law, in my judgement, is that its reasoning in the paragraphs which follow paragraph 27 of its reasons fails to provide an adequate explanation for why after January 2024 the appellant was able to ‘take nutrition’ unaided. That reasoning does not rely on the history before January 2024, but the FTT have not made sufficiently clear what it made of the post-January 2024 circumstances of the appellant. For example, the FTT have not explained what it understood the appellant meant, in her evidence to the FTT, that “if needs be” others would cut up her food for her in respect of her ability to take nutrition unaided. No finding are made by the FTT on why and how often the appellant needed such help. Furthermore, the FTT have not adequately explored in its reasons why, if it was accepted, the appellant’s evidence that she was unable to take nutrition unaided as she needed her food to be cut up into bite sized pieces (paragraph 31 of the reasons) and that cutting up food by herself aggravated the appellant’s pain and symptoms (per paragraph 33 of the reasons), did not show that any points scoring descriptor under PIP daily living activity 2 was satisfied.

As for the use of the left arm and hand to cut up food, the FTT’s decision and reasons fail sufficiently to explore whether, for example, the appellant could cut up her food using her left hand/arm within a reasonable time period and to an acceptable standard. In addition, the reasoning on the left arm/hand failed to grapple with the evidence the FTT seemingly accepted in paragraph 28 of its reasons that the appellant hands (plural) and her fingers would swell up and she found it hard to grip. On the face of it, such evidence was plainly relevant to the appellant’s ability to take nutrition unaided.

Similar points arise in respect of the FTT’s consideration of PIP daily living activity 6 (dressing and undressing). The FTT’s reasons fail to explain what the FTT made of the post January 2024 circumstances the appellant was in and why it concluded that only descriptor 6b applied. By way of example, in my judgement it is not sufficiently explained in the reasons whether the FTT decided that help with dressing was not in the 2024 care plan because the appellant had been assessed as not having a need for care in that respect of dressing. The appellant’s evidence as recorded in the care plan was on the face of it to the contrary effect, and that she needed care with dressing and the 2024 care plan had been wrong not to include that as a need. The FTT’s reasoning fails to set out which of these conflicting pieces of evidence it preferred and why it did so.

The appeal to the Upper Tribunal is supported by the Secretary of State in a helpful submission dated 8 December 2025, a submission with which I agree. That submission reads materially as follows:

“1.The Tribunal scored the claimant 11 daily living component points, for descriptors 1e, 4e, 5b, and 6b, enough for the standard rate. A single extra point would bring the claimant to the threshold for an award of the enhanced rate. The claimant sought that extra point through either activity 2 (descriptor 2b(iii) -Needs assistance to be able to cut up food), or activity 6 (descriptor 6e – Needs assistance to be able to dress or undress their upper body).

2.

The reason for their difficulty with these descriptors was a problem affecting her right arm, shoulder and hand, described in the SOR as:

• “pain in her right arm that restricts her movement. She is unable to exert pressure due to the severe restrictive pain in her dominant hand…” - submission of representative (Para 26)

• “pain and weakness in her right shoulder, arm and hand…” - Pain management clinic (Para 27)

• “hands and fingers swell up, she finds it hard to grip anything and needs assistance” – Social prescriber at GP (Para 28).

One can see how these problems would potentially impact the activities in question.

3.

In their discussion with regards to activity 2 the Tribunal relied heavily on two pieces of the claimant’s evidence when finding that no scoring descriptor applied. The first was a statement that someone else will cut up her food “if needs be”, with the Tribunal placing that qualifier in bold (para 29). The implication the Tribunal seem to be taking from that phrase is that the claimant does not need that help all the time, or not on the majority of days. Perhaps that is what the claimant meant. However, it could have simply meant that the kind of food being eaten in a particular meal might not need to be cut up at all, or any further than what was done already in the cooking process, so the help is not needed on those occasions. I submit that without further examination of what was meant the Tribunal should not have placed the weight it did on that statement.

4.

The second piece of evidence was the statement, when asked by the Tribunal “once you have got the food in front of you on your plate….Could..you use your left hand to cut the food? that “oh yes I could” (para 30). That does seem quite emphatic, but the Tribunal did not explore this answer in any further detail to check whether the claimant would be doing this task to the standards required under Regulation 4(2A) of the Social Security (Personal Independence Regulations) 2013. From paragraph 26 one can infer that she is right-handed, so she would be using her weaker hand, which would increase the difficulty of this task. When combined with the pain, swelling and difficulties in grip (which may affect both hands to some degree) there may be some question as to whether more detailed findings were required to justify the non-scoring of points in this activity.

5.

However, even if the question of the adequacy of findings and reasoning is finely balanced in relation to activity 2, I submit this is not the case in relation to activity 6. In this activity there is no clear statement from the claimant they could manage to dress their upper body adequately (since the deterioration in January 2024). The evidence given (paragraphs 47, 49, 50) was that shirts were a particular difficulty, which is consistent with the evidence of the problems with shoulder, arm, and hand pain, poor grip and swollen fingers. The evidence which the Tribunal seemed to weigh against this was the fact that the claimant had a care plan which did not mention a need for assistance with dressing. Whilst that is certainly pertinent, I submit the Tribunal needed to give more analysis of why this fact outweighed the rest of the evidence, bearing in mind the claimant’s response that her carers were providing that help regardless of the plan, and the general acceptance of the medical evidence regarding the claimant’s conditions and deterioration in January 2024 (or the lack of any discussion of why that evidence should not be accepted).

6.

For the reasons given above I submit that the Tribunal erred in law by failing to make sufficient findings and give adequate reasoning for their decision and I therefore ask for that to be set aside and for the matter to be remitted to a freshly constituted First-tier Tribunal for rehearing.”

For the reasons set out above, the appeal succeeds. The Upper Tribunal is not able to re-decide the first instance appeal. That appeals will therefore have to be re-decided afresh by a completely differently constituted FTT, after an oral hearing.

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 new FTT, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.