SK v The Secretary of State for Work and Pensions

The appellant’s grounds of appeal challenge the First-tier Tribunal’s decision on daily living activities 1 (preparing food), 4 (washing and bathing), 5 (managing toilet needs), 7 (communication), 9 (engaging with others) and mobility activities 1 and 2.

The grounds raise a number of points. One point is misconceived and I must make this clear: unless clearly stated otherwise, the fact that the Secretary of State “supports” an appeal to the Upper Tribunal on an error of law ground does not in any way indicate that the Secretary of State “supports” the underlying appeal to the First-tier Tribunal or that the Secretary of State has conceded any part of the underlying appeal.

However, I am satisfied that it is appropriate to grant permission, not because everything else that the appellant says necessarily amounts to an arguable error of law in the Tribunal’s decision, but for the following particular reasons, on which the response from the Secretary of State may focus:-

It is arguable that the Tribunal erred at [3] in deciding to go ahead with the appeal in the appellant’s absence for the reasons that it gives. It is well established (see eg BV v Secretary of State for Work and Pensions [2018] UKUT 444 at [30]) that although the First-tier Tribunal has power to determine a case in a party’s absence, the question it must consider is whether it would be fair to proceed in a party’s absence. In JP v SSWP [2011] UKUT 459 (AAC) at [12]-[14] Judge Poynter held that the Tribunal would have failed to give adequate reasons for deciding to proceed with a paper hearing if it simply states that it has considered the provisions of the rules and is satisfied that it is appropriate to go ahead on that basis. It is arguable that the Tribunal made that error in this case. Some reasons for going ahead in the appellant’s absence beyond restatement of the rules are required. In this case, the Tribunal arguably needed to consider and explain why it was fair to go ahead given the appeal turned in part on the appellant’s credibility.

It is arguable that the decision to reduce the appellant’s entitlement from what it was between 2020 and 2022 needed to be explicitly addressed by the Tribunal, particularly given the deterioration in her condition as a result of the ankle break, and that the Tribunal’s reasons are inadequate in the absence of that being addressed: cf KW v SSWP [2018] UKUT 216 (AAC) at [10]-[12].

Mobility activity 2 (moving around) – it is arguable that the Tribunal erred in ‘preferring’ Mr Mann’s first letter to his second. The Tribunal’s reasons are arguably perverse or inadequate given that: (a) the first letter did not specifically address the appellant’s ability to walk any distance; and (b) the second letter contains a level of detail and personal opinion by the consultant that undermines the Tribunal’s categorisation of this as him just saying what the appellant has asked him to say. I note that the consultant’s assessment also appears to be consistent with the Universal Credit HCP assessment (FTTB, E19).

Considering UT Judge Stout’s first ground of appeal at point 15(1), which I will address below.

UT Judge Stout has helpfully pointed out that it is well established that the FtT must consider it is fair to proceed in a party’s absence. The UT have confirmed in DT v SSWP (UC) [2019] UKUT 268 (AAC) and in MM v SSWP (ESA) [2011] UKUT 334 (AAC) that the FtT must acknowledge explicitly that it has considered both whether the parties have consented to a decision being made without a hearing and that it can fairly decide the appeal without holding one, and to explain why.

In the statement of reasons (SOR), the FtT have stated, “The appellant did not participate in the oral hearing… The Tribunal clerk telephoned her on the morning of the hearing at the Tribunal’s request and encouraged her to participate. She was clear that she did not wish to do so and asked the FtT to proceed in her absence.” [UT bundle, page 46 (3)]. “The Tribunal considered the relevant rules and determined that it was fair, just and in the interests of justice to proceed in accordance with the appellant’s wishes.” [UT bundle, page 46 (3)}.

In the SOR, the FtT have stated: “The Tribunal finds that the treatment the appellant is receiving does not support the level of difficulty she claims.” [UT bundle, page 51 (33)]. As the FtT had questions around the appellant’s credibility, the hearing could have been adjourned to allow the appellant to respond to the FtT’s questions.

Although the FtT’s have confirmed the appellant did not want to participate in the hearing, it has failed to confirm why it decided it was fair and just to decide the appeal on the papers without adjourning to allow the appellant the opportunity to answer the questions around the credibility of her claims.

Taking into account the case law and SOR paragraphs mentioned above, the SOR fails to explain why it considered that paragraph (1)(b) (of Rule 27 FtT Rules 2008) was satisfied so that no oral hearing was necessary, a mere reference to the overriding objective in rule 2 is not sufficient if obvious factors pointed the other way. No reasoning has been provided to clarify why the FtT determined it fair and just to decide the appeal on the papers alone.

I respectfully submit that the FtT have erred in law by failing to explain why it decided the appeal on the papers.

Considering UT Judge Stout’s Grounds for appeal at point 15(2) of their Permission to Appeal (PTA) which states:

“It is arguable that the decision to reduce the appellant’s entitlement from what it was between 2020 and 2022 needed to be explicitly addressed by the Tribunal, particularly given the deterioration in her condition as a result of the ankle break, and that the Tribunal’s reasons are inadequate in the absence of that being addressed: cf KW v SSWP [2018] UKUT 216 (AAC) at [10]-[12].”

Upon reviewing the SOR in its entirety, it is noted that the FtT provided only a brief reference to the 2020 award at paragraph 12. While the FtT acknowledged at paragraph 71 that “[the appellant] is not as mobile as she was before the ankle break”, there is no clear or detailed analysis of the extent of deterioration in the appellant’s condition. This absence of details is particularly significant in UT Judge Stout’s observation as noted above.

The additional medical evidence from the consultant Orthopaedic surgeon (Mr. Mann) (FtT Additional A, pages 1–3) describes ongoing pain and reduced walking distance, expressed in practical terms (e.g., car lengths), which is consistent with the appellant’s current functional limitations detailed through the claim. However, the SOR lacks a distinct and reasoned assessment of this evidence in the context of the appellant’s deteriorating condition.

While the FtT is entitled to weigh evidence as it sees fit, it is under a duty to explain the basis for accepting or rejecting relevant material. In this case, the UC85 report was not significantly addressed in the FtT findings or outcome in the SOR. The absence of any explanation for disregarding this report raises concerns about whether the FtT followed its duty to consider all relevant evidence, as highlighted in “KW v SSWP [2018] UKUT 216 (AAC) at [10]–[12]”

Moving on to consider UT Judge Stout’s Grounds for appeal at 15(3) of their PTA which states:

“Mobility activity 2 (moving around) – it is arguable that the Tribunal erred in ‘preferring’ Mr Mann’s first letter to his second. The Tribunal’s reasons are arguably perverse or inadequate given that: (a) the first letter did not specifically address the appellant’s ability to walk any distance; and (b) the second letter contains a level of detail and personal opinion by the consultant that undermines the Tribunal’s categorisation of this as him just saying what the appellant has asked him to say. I note that the consultant’s assessment also appears to be consistent with the Universal Credit HCP assessment (FTTB, E19).”

Upon viewing the medical evidence in question a letter from Dr Akbar dated 27.08.2020. which states “is only able to walk very short distances before she has to sit down to regain her balance. … has to look for railings or similar to hold on to for balance”. Consistent difficulty when mobilising -

Taking into consideration the first medical evidence letter from Dr Man Dated 13.01.2022 (FtT Bundle 257-259) which shows a referral to the fracture clinic, arranging a MRI scan. The evidence details issues with soft tissue and details Oedema and lists several possible causes of these. It further details various treatment options and concludes with a referral to physiotherapy.

Additional medical evidence from Mr Mann dated 22.06.2022 (FtT Bundle addition E 41-42) which stated, “ on a bad day [the appellant] can only walk a couple of car lengths and on a good day [the appellant] might be able to walk a bit further but certainly less than 50m”. The letter further details risk of falls vertigo and various ongoing issues linked to mobility. Which shows issues with mobilising and use of aids (tubigrip).

The reader is left uncertain about the FtT justification for dismissing the consultant’s evidence under paragraph 72 of the SOR. It appears the FtT may have given no weight to Dr Mann’s letter, despite it containing medical evidence that aligns with the information provided in the UC85. Furthermore, the reader is left in doubt as to why the FtT did not explore in greater detail its limited interpretation of this letter, which outlines restrictions regarding the appellant’s mobility. The evidence is provided by a medically trained professional and is based on clinical observations and medical opinion

Therefore, it could be argued that the FtT’s view of the medical evidence was a perverse interpretation, when considering the historic medical evidence from a previous claim, which also indicated limited mobility. Additionally, the UC85 (FtT Bundle, Addition E, pages 18–19) clearly documents the appellant’s difficulty in mobilising beyond 15 metres without needing to stop and rest, noting that walking is undertaken at a slow pace and is accompanied by pain.

I respectfully submit that the FtT has erred in law by failing to properly consider the various pieces of medical evidence presented, and by not providing sufficient justification for disregarding them. There is very strong evidence from an Orthopaedic Surgeon which shows the appellant had various issues with mobility. The evidence provided is consistent with and are further supported by the UC85. However, the FtT appears to have shown a rather dismissive approach of the evidence and appear to lack detail in their somewhat succinct SOR, which in turn leaves the reader in doubt as to what evidence the FtT did rely on.

I further submit that the FtT by association have made the same adverse inference in reaching their conclusion by not providing full justification, dealing with the conflicts and further explanation of their reasons for this finding.

If the UT Judge accepts my submission that the FtT has erred in law on points identified earlier in this submission, then I respectfully request that the appeal be remitted to a different first-tier tribunal for further fact finding.

Holly Stout

Judge of the Upper Tribunal

(Approved for issue on 28 November 2025)