GA v The Secretary of State for Work and Pensions (UC)

GA made a claim for universal credit (“UC”) on 27 July 2023 and disclosed health conditions consisting of Albinism and nystagmus, causing visual impairment, and a neck injury affecting his ability to work. The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, accepted this as an application by GA for the limited capability for work-related activity (“LCWRA) element to be included in his award.

On 29 September 2023, GA took part in a telephone medical assessment with a health care professional acting on behalf of DWP. On 16 December 2023, having received advice from that assessment, DWP awarded GA descriptors 15(c) and 16(b) of Schedule 6 to the Universal Credit Regulations 2013. DWP decided that GA had limited capability for work but did not have, or fall to be treated as having, limited capability for work-related activity.

GA appealed to the First-tier Tribunal on 05 February 2024. Following an oral hearing on 19 June 2024, a First-tier Tribunal (“FTT”) confirmed DWP’s decision and refused GA’s appeal.

On 20 November 2024, GA’s representatives applied to the Upper Tribunal for permission to appeal against the FTT’s decision. In a decision dated 18 February 2025, I gave GA permission to appeal against the FTT’s decision on the basis it was arguable the FTT had made one or more of the following errors of law (the first three of which reflected arguments from GA’s representatives):

Mr Kay is the Secretary of State’s representative in these proceedings. He supports the appeal to the Upper Tribunal in a helpful written submission dated 10 April 2025. Mr Kay invites the Upper Tribunal to set aside the FTT’s decision dated 19 June 2024 for containing material errors of law, for the reasons set out below.

Adequacy of factual findings and / or reasons to support its decision: GA’s representatives had put forward submissions to the FTT that the nature of GA’s neck injury meant he needed to exercise extreme caution when carrying out daily living activities, to prevent further damage to the discs in his neck. They described that such damage could occur if he fell or where, due to GA’s impaired vision, he moved his head and kept it in an altered position for a period of time (the null point). GA’s representatives had submitted to the FTT that this was likely to occur if GA engaged in computer-based work (FTT bundle, page 6).

Mr Kay submits that the FTT appears to have accepted this evidence as fact by stating: “His health conditions are not at issue…” (paragraph 5 of Statement of Reasons). The FTT also accepted GA experienced mental health difficulties. However, the Statement of Reasons has not addressed the potential risks to GA’s health identified by his representatives (and set out at paragraph 6 above). Mr Kay submits the FTT’s findings on such a risk appear limited only to the statement that GA would not be required to undertake any physical activities in either of the work-related activities DWP had identified in its response (participating in Sky Blues in the Community - a mental health project targeting men and participating in activities arranged by Coventry Resource Centre for the Blind).

Mr Kay submits that when considering possible mitigation and potential requirement of a third party to facilitate this, the FTT appeared only to have considered GA’s mental health issues and his difficulty travelling to unfamiliar places due to anxiety, which the FTT decided could be mitigated by his wife accompanying him.

Mr Kay observes the evidence in the bundle does not refer to GA experiencing other falls or requiring a walking or balance aid, and it appears he regularly travels alone to familiar places. Mr Kay also observes that it seems possible that risk could be mitigated with reasonable adjustments during work-related activity, such as the font sized being increased or computers not being used for sessions or regular prompting from GA’s wife about how to position his neck.

Mr Kay submits that the fact remains, however, that the FTT’s Statement of Reasons does not address these issues. He argues this suggests the FTT did not consider those matters or make findings about whether they could indicate the presence of risk in the context of work-related activity or whether such risks could reasonably be mitigated. Mr Kay submits that while the FTT is entitled to give weight to whatever evidence if chooses, where there is conflicting evidence, it must explore and consider it in a holistic manner and explain why it preferred one piece of evidence to another. He submits that the FTT needed to make further findings of fact to explore the effects of GA’s stated limitations and whether they would present a substantial risk to the health of any person, and whether, and if so how, the presence of a third party might mitigate those risks.

Mr Kay submits that the FTT’s failure to do so is a material error of law. He submits that this error alone is sufficient for GA’s appeal to be remitted for rehearing by a freshly constituted First-tier Tribunal, and the grounds summarised at paragraphs 4(d) and (e) above can be subsumed into any rehearing.

Mr Kay indicated the Secretary of State does not support the ground summarised at paragraph 4(d) above. He explains that he has not been able to listen to the hearing recording of the hearing on 19 June 2024 and is therefore unable to address the ground summarised at paragraph 4(e).

GA’s representatives have replied to the Secretary of State’s response. They have clarified that their argument on the ground summarised at paragraph 4(d)above is not that the test in relation to substantial risk incorporates whether a person might be inappropriately sanctioned. They acknowledge that the Upper Tribunal held explicitly in paragraph 110 of IM v SSWP (ESA) [2014] UKUT 412 (AAC) that the risk of inappropriate sanction is not the focus of the test.

GA’s representatives explain that their argument, however, is that the risk of sanctions for not complying with a work-related activity requirement might be sufficient to persuade GA to undertake it without third party assistance (for example, if his wife is unavailable) and that the consequences of doing so presents a risk that cannot sensibly be ignored.

GA’s representatives also explain that they have not been able to listen to the transcript of the FTT hearing on 19 June 2024.

GA’s representatives submit, however, that since they agree with Mr Kay that the FTT made a material error of law in relation to the ground summarised at paragraph 4(a) to (c) above, they consider this is sufficient to allow this matter to be remitted for rehearing by a freshly constituted First-tier Tribunal.

Neither party requested an oral hearing of the appeal. I took these preferences into account. I considered the appeal file. I decided the interests of justice did not require an oral hearing. The parties agree the FTT made material errors of law. It was proportionate to determine the appeal on the papers.

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 a material error of law in relation to the appeal ground addressed by Mr Kay at paragraphs 6 to 10 above, dealt with in more detail by his submission dated 10 April 2025.

Given I am satisfied the FTT made a material error of law in the way described at paragraphs 6 to 10 above, it has not been necessary to go on to resolve the appeal grounds summarised at paragraphs 4(d) and (e) above. It is fair, just and proportionate to deal with his appeal to the Upper Tribunal in this way.

Having decided the FTT’s decision involved a material error of law, it is appropriate to exercise my discretion to set aside the Tribunal’s decision dated 19 June 2024 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act provides that I must either remit the case to the First-tier Tribunal with directions for their reconsideration or remake the decision.

Neither party invited me to remake the FTT’s decision. In any event, it is necessary for facts to be found. The First-tier Tribunal is best placed to evaluate the evidence, including using its medical and disability expertise, and to make appropriate findings of fact.

I therefore remit GA’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about whether GA should be treated as having limited capability for work-related activity at the date of DWP’s decision on 16 October 2023.

Although I have set aside the FTT’s decision dated 19 June 2024, I am not making any findings, or expressing any view, about whether GA should be treated as having limited capability for work-related activity at 16 October 2023. The next tribunal will need to hear evidence, make its own findings of fact, and provide its reasoning for the decision it reaches.