KB v The Secretary of State for Work and Pensions

KB made a claim for personal independence payment (PIP) on 25 April 2023. The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, asked KB to take part in a video medical assessment on 24 July 2023. Having received advice from that assessment, on 31 July 2023, DWP decided to award KB descriptor 9.b (2 points) and 10.b (2 points) for daily living activities. DWP awarded KB mobility descriptor 1.b (10 points). As the threshold for an award of either component of PIP is 8 points, DWP awarded KB the PIP mobility component (standard rate) but did not award her the PIP daily living component.

KB appealed to the First-tier Tribunal on 20 October 2023. Her appeal was decided following a telephone hearing at Sheffield on 21 June 2024. The First-tier Tribunal (“FTT”) maintained DWP’s decision to award KB 4 points for daily living activities and 10 points for mobility activities. The FTT decided KB was entitled to the PIP mobility component only, at the standard rate and refused her appeal.

On 14 November 2024, KB applied to the Upper Tribunal for permission to appeal against the FTT’s decision. In a decision dated 16 February 2025, and having listened to the hearing recording for the hearing on 21 June 2024, I granted KB 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, based on the grounds identified by KB’s representative:

E. Sakpa is the Secretary of State’s representative in these proceedings, and I refer to them in this decision as “the SSWP’s representative”. They support the appeal to the Upper Tribunal in a helpful written submission dated 10 April 2025. The SSWP’s representative invites the Upper Tribunal to set aside the FTT’s decision dated 21 June 2024 for containing material errors of law, for the reasons set out below.

Procedural fairness of hearing: the SSWP’s representative submits the FTT’s responsibilities included dealing with KB’s appeal fairly and justly within the meaning of the overriding objective. Throughout the Statement of Reasons, the FTT commented on a lack of evidence to support KB’s claims. See, for example, its statement at paragraph 11 that it did not accept KB’s account of carpal tunnel syndrome affecting her function, because it was not mentioned in the claim form.

The SSWP’s representative submits that when KB explained she had medical evidence she could submit, the FTT should have invoked its inquisitorial jurisdiction to consider adjourning the hearing. This included at the end of the hearing where KB offered to send in a medical letter and the Judge stated the FTT had to go ahead with what it had. The SSWP’s representative submits the FTT made an error of law by failing to explain whether it considered adjourning the hearing and why it decided to instead proceed.

Engaging with other people face to face (PIP activity 9): the SSWP’s representative submits the FTT failed to properly evaluate the evidence about KB’s difficulties with this activity. Nor did it provide adequate reasoning for its decision that no higher-scoring descriptor than 9.b (2 points) applied. The SSWP’s representative submits that having established KB reasonably required prompting to perform this activity, the FTT did not make enquiries about who would, or might prompt her, including whether it could only be done by someone experienced in dealing with her mental health (which can include a family member). The SSWP’s representative submits the FTT therefore made an error of law by failing to explore whether KB could only engage with other people face to face if provided with social support (descriptor 9.c).

Managing toilet needs (PIP activity 5): the SSWP’s representative submits the FTT did not demonstrate in its Statement of Reasons that it had considered whether KB reasonably required incontinence pads. Paragraph 12 of the Statement of Reasons did not refer to KB using these, even though KB had mentioned them in her PIP2 questionnaire and during the PIP medical assessment. The SSWP’s representative also submits that when considering whether a person can manage toilet needs on the majority of days in the required period, the test is not whether the person experiences incontinence on the majority of days. Instead, it is whether on the majority of days, the person reasonably requires the use of an aid or appliance (here, incontinence pads) on a precautionary basis in order to cope with incontinence that may occur (for example, a couple of times a week). See SSWP v NH (PIP) [2017] UKUT 258 (AAC) (CPIP/387/2017). The FTT had not addressed this test in its Statement of Reasons.

Adequacy of the FTT’s reasoning generally: the SSWP’s representative submits that the FTT engaged sparsely with the evidence in the FTT bundle and KB’s oral evidence at the hearing. Furthermore, the reasons for not awarding points for various PIP activities are unclear. The SSWP’s representative gives paragraph 15 of the Statement of Reasons as an example of this. They argue that the FTT placed emphasis on what KB did to support her daughter verbally, without providing the further detail required to justify this. Nor did the FTT address adequately the requirement to consider whether KB could perform the PIP activities safely, to an acceptable standard, repeatedly and within a reasonable time period (regulation 4(2A) of the 2013 regulations.

The SSWP’s representative submits that given the Secretary of State agrees the FTT made material errors of law and considers KB’s appeal should be decided again by a new tribunal, it is unnecessary to address mobility activity 2 (moving around). This matter will be dealt with by fresh consideration of KB’s appeal.

Having received the written submissions of the SSWP’s representative, KB’s representative has, understandably, indicated KB does not wish to make any further representations.

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 were 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 material errors of law in relation to the appeal grounds addressed by the SSWP’s representative at paragraphs 5 to 9 above, dealt with in more detail by her submission dated 10 April 2025. Those errors of law are sufficiently material, without needing to go on to consider the other areas where I gave KB permission to appeal.

Having decided the FTT’s decision involved material errors of law, it is appropriate to exercise my discretion to set aside the Tribunal’s decision dated 21 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 KB’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about the level of her PIP entitlement at the date of DWP’s decision on 31 July 2023.

Although I have set aside the FTT’s decision dated 21 June 2024, I am not making any findings, or expressing any view, about what rate of PIP KB should be entitled to receive. The next tribunal will need to hear evidence, make its own findings of fact and provide its reasoning for the decision it reaches.