Appeal No. UA-2025-000950-PIP
Between:
T.G.
Appellant
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Wikeley
Decided on consideration of the papers
Representation:
Appellant: In person
Respondent: Ms C. Pettet, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-Tier Tribunal (Social Security and Child Support)
Tribunal Case No: SC007/24/00940
Digital Case No: 1721080322208412
Tribunal Venue: Leeds
Hearing Date: 26 March 2025
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with this decision and the following directions.
DIRECTIONS
This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.
The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 26 March 2025.
The Appellant is reminded that the tribunal can only deal with the appeal, including her health and other circumstances, as they were at the date of the decision by the Secretary of State under appeal (namely 24 April 2024).
If the Appellant has any further written evidence to put before the tribunal and, in particular, further medical evidence, this should be sent to the HMCTS regional tribunal office within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).
The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.
These Directions may be supplemented by later directions by a Tribunal Legal Officer, Tribunal Registrar or First-tier Tribunal Judge.
REASONS FOR DECISION
Introduction
The Appellant’s appeal to the Upper Tribunal succeeds. There will need to be a completely fresh hearing of the original Personal Independence Payment (PIP) appeal before a new First-tier Tribunal (FTT).
The Upper Tribunal’s decision in summary and what happens next
I allow the Appellant’s appeal to the Upper Tribunal, which has the support of the Secretary of State’s representative. The decision of the First-tier Tribunal involves a legal error. For that reason, I set aside the Tribunal’s decision.
The Appellant’s case now needs to be reheard by a new and different First-tier Tribunal. I cannot predict what will be the outcome of the re-hearing. So, the new tribunal may reach the same, or a different, decision to that of the previous Tribunal. It all depends on the findings of fact that the new Tribunal makes.
The factual background
The factual background is set out in the helpful written submission by the Secretary of State’s representative in these proceedings. In summary, the Appellant had previously had an award of the middle rate of the DLA care component as a child and an earlier FTT had made an award of the standard rate of the mobility component of PIP. A decision-maker subsequently found that the Appellant scored nil points for both daily living and mobility activities. The Appellant appealed to the FTT. The FTT, following a telephone hearing, allowed the appeal to the extent of making an award of the standard rate of the mobility component (10 points) but made no award in respect of daily living (5 points).
The grounds of appeal
The Appellant’s grounds of appeal related to the FTT’s findings and reasons in respect (principally) of managing therapy, reading and planning & following journeys.
I gave the Appellant permission to appeal, observing as follows:
The Appellant’s grounds of appeal as set out on Form UT1 (and in the documents at Additions I and K of the FTT bundle) are arguable, notwithstanding what appears to be a comprehensive statement of reasons. However, it may be that the grounds are really seeking to re-argue the factual merits of the case, in which case the appeal cannot succeed. So the fact that permission to appeal has been granted should not be taken as any indication of the likelihood on closer scrutiny of the appeal succeeding.
However, the Secretary of State’s representative in these proceedings, Ms C Pettet, supports the appeal. Her analysis proceeds as follows:
It is my submission that the FtT has erred in law in both its fact finding and duty to provide adequate reasons for its decision. The conclusion from the FtT on how they assessed the claimant’s functional abilities appears limited in their reasoning. It seems that what the FtT has provided, appears to be no more than a rehearsal of evidence and a conclusion without an explanation.
Turning to the ground of appeal raised by the claimant in relation to daily living activity 3 – Managing therapy or monitoring a health condition. The FtT stated the following at paragraphs 28 to 31 and 34 to 35 of the SOR.
“Managing therapy or monitoring a health condition: [Claimant] stated on the PIP2 form that her boyfriend would stay awake for two to three hours after [claimant] had gone to bed in order to monitor her blood sugar levels, and that he assisted her with cleaning and changing her pump up to three days per week. The HP recorded [claimant] explained that managing her insulin caused her anxiety, her partner would help her.
[…] referred to the assistance he gave [claimant] with managing her insulin pumps which included using the correct amount of insulin, changing the pump due to her eyesight. The Tribunal rejected this evidence because [claimant] would be required to be able to manage her insulin pumps independently, she did not have a cognitive impairment that would prevent her from knowing what actions she had to take to maintain her pumps and what she would need to do if she was having either a hypoglycaemic or hyperglycaemic episode.
The Tribunal found that a letter from a genetic diabetic nurse confirmed that [claimant] should have dextrose with her, that she would be receiving training on how to use the insulin pump (page 100). The Tribunal was satisfied that [claimant] would not have been provided with an insulin pump if she was unable to use this equipment independently and effectively.
The Tribunal found on the balance of probability that [claimant] had received training to manage the use of the insulin pump independently and any assistance she received from her partner was not reasonably required. The Tribunal was satisfied that the use of an insulin pump was an aid for managing a health condition, namely diabetes.”
The Tribunal found that "manage therapy" means undertake therapy, where a failure to do so is likely to result in a deterioration in [the claimant's] health. The Tribunal found that [claimant] was not receiving therapy for endometriosis, she was receiving medication for her diabetes. [Claimant] had been given advice for managing her anxiety. The Tribunal found that the insulin pump was an aid. The Tribunal found that [claimant] was given advice about her diabetes.
These facts demonstrated to the Tribunal’s satisfaction that with the use of an aid, [claimant] was able to undertake the activity of managing therapy or monitoring a health condition safely, to an acceptable standard, repeatedly; and within a reasonable time period. One point was awarded under this activity.
In dealing with the claimants point at page 7, regarding ‘Talking Therapy’. It is clear that the claimant has a long standing history of anxiety as noted by the HealthCare Professional (HCP) at page 70 where the following is recorded:
“Anxiety. Developed difficulties from a young age. Saw CAMHS as a child but has poor recall of these interventions. Previous Treatment and Support; Following the support she had during her younger years she went on to access the diabetes clinic psychology service and has had ongoing support from that service. Currently she has psychology sessions every few weeks, as well as occasional telephone contact. She reports that she has tried medication for her anxiety, she has previously had propranolol. It did not help.”
Whilst the FtT stated at paragraph’s 34 of the SOR (repeated above) that: “…[Claimant] had been given advice for managing her anxiety…”. It is unclear if the FtT considered all the evidence. For example, as helpfully noted by UT Judge Wikeley, the claimant had noted at page Addition I1 the following:
“The Tribunal did not award me any points for managing therapy, despite the fact that I engage in talking therapy sessions provided by my psychologist and the mental wellbeing service every morning and evening. This requires significant amount of effort, and it has a substantial impact on my daily life. I made it clear during the hearing that this was a crucial part of my routine which takes approximately 30 minutes per session, and I require support morning and evening to engage in it…”
Whilst it is correct that the FtT appear to record some of the claimant’s difficulties, however it is unclear whether they accepted all the evidence and do not appear to engage with this evidence. I submit that the FtT should have used their inquisitorial role and as such further findings of facts are required.
I would like to draw the UT Judge’s attention to a concern I have with daily living activity 3, insofar as I note that the FtT recorded the following at paragraph 25 of the SOR:
“[…] (claimant’s partner) provided a typed letter detailing the support he provided to [claimant] which included “carb counting”. The Tribunal found that this assistance was not reasonably required. [Claimant] had diabetes for several years before she met her partner in her first year at university. [Claimant] would have been given advice from the diabetes clinic on how to manage the condition which would have included carbohydrate counting.”
It is correct that this is in relation to daily living activity 2 – Taking nutrition, however it is held ‘Diet as Therapy aspect of SSWP v LB [2016] UKUT 530 (AAC) should be considered. I note that the claimant’s mandatory reconsideration letter at page 99 where the claimant has stated: “…As you can see from the letter from my consultant, as enclosed, I struggle to even take medication without support around me. This is and always has been an ongoing issue for me…” It is also noted at page 100 that the claimant’s partner helps with many aspects of the claimant’s diabetes including ‘supplying carbs’, “…counting carbs for her…” and staying up after the claimant has gone to bed. It is also noted at page 100 from the claimant’s parent that the claimant requires substantial support from her parents, partner, diabetes support team. Also noting that the claimant’s anxiety levels are high, due to her health issues.
It is clear upon my reading of the SOR that in reaching its conclusion the FtT has clearly failed to take into consideration the difficulties the claimant had identified. Given the evidence as noted above, it was incumbent upon the FtT to use its inquisitorial function to establish whether the claimant met any of the other descriptors within daily living activity 3 and if not, why they did not apply to this claimant. This I submit is an error in law.
In dealing with the claimant’s ground of appeal regarding daily living activity 8 – Reading and understanding signs symbols and words. I note the HCP recorded at page 70 the following:
“She has additional support with her studies. Student disability team support is in place, she has been provided assisted technology, a computer with additional software that she can use when struggling due to her diabetes symptoms or anxiety.”
The claimant in her mandatory reconsideration letter also noted the following: “…specialist software for example I’m able to speak to my laptop and it will write out for me and will also read my work aloud. This is because I struggle so much with my health...This is also affected when my blood glucose is high as I can’t focus and my eyesight is impaired…”. However, the FtT do not engage with this evidence.
It is clear upon my reading of the SOR that in reaching its conclusion the FtT has clearly failed to take into consideration the difficulties the claimant had identified and have in fact remained silent. Given the evidence as noted above, it was incumbent upon the FtT to use its inquisitorial function to establish if the claimant needs to use an aid or appliance, other than spectacles or contact lenses, to be able to read or understand either basic or complex written information. This I submit is a further error in law.
I should add that the Appellant has not made any further observations on the substance of the appeal by way of reply.
Analysis: a summary
I agree with the analysis of the Secretary of State’s representative in her written submission supporting the appeal to the Upper Tribunal and as summarised above. This appeal to the Upper Tribunal is effectively allowed by consent.
I am accordingly satisfied that the First-tier Tribunal erred in law for those reasons. I therefore allow the Appellant’s appeal to the Upper Tribunal and set aside (or cancel) the Tribunal’s decision.
I therefore remit (or send back) the original appeal for re-hearing to a new tribunal, which must make a fresh decision.
What happens next: the new First-tier Tribunal
There will therefore need to be a fresh hearing of the appeal before a new First-tier Tribunal. Although I am setting aside the previous Tribunal’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to PIP and, if so, which component(s) and at what rate(s). That is a matter for the good judgement of the new Tribunal. That new Tribunal must review all the relevant evidence and make its own findings of fact.
In doing so, however, unfortunately the new Tribunal will have to focus on the claimant’s circumstances as they were as long ago as in April 2024, and not the position as at the date of the new hearing, which will obviously be more than 18 months later. This is because the new Tribunal must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998). The decision by the Secretary of State, which was appealed to the FTT, was taken on 24 April 2024.
Conclusion
I therefore conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The case must be remitted for re-hearing by a new tribunal subject to the directions set out above (section 12(2)(b)(i)). My decision is also as set out above.
Nicholas Wikeley
Judge of the Upper Tribunal
Authorised by the Judge for issue on 13 November 2025