JE v Secretary of State for Work and Pensions

The decision of the First-tier Tribunal sitting in Birmingham on 24 October 2024 under reference1705175539138392 is set aside and I remit this matter to a differently constituted panel in the Social Entitlement Chamber of the First-tier Tribunal for reconsideration.

This matter shall be referred to a District Tribunal Judge to give listing and case management directions.

It is common ground between the appellant and the respondent that the decision of the First-tier Tribunal was vitiated by an error of law. Both the Secretary of State and the appellant have indicated their consent for the matter to be determined on the papers. However, the appellant’s representative further invites me to make a substantive determination in favour of the appellant so as to secure the additional points sought and thereby obviate the need for a remittal.

Having considered the papers and submissions, I decline that invitation. Whilst I am satisfied that I may determine the merits of the appeal before me—namely, whether the First-tier Tribunal erred in law—I am not persuaded that it would be appropriate for me to adjudicate upon the descriptors and activities in dispute. Such an exercise would, in my judgment, require a further hearing, the testing of evidence, and findings of fact. The established principle is that the First-tier Tribunal is the primary fact-finding body, thereby preserving a route of appeal from any first-instance decision. In light of the overriding objective, I am satisfied that it is fair and just to remit this appeal. I discern no advantage to either party in convening a further hearing before this Upper Tribunal when the same can be arranged by the First-tier Tribunal local to the appellant.

When granting permission in this Personal Independence Payment (“PIP”) appeal, Upper Tribunal Judge Church indicated that he shared the concerns raised by the appellant’s representative regarding the appellant’s ability to perform some of the activities in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 safely. These concerns arose particularly in light of the appellant’s symptoms of epilepsy, compounded by unreliable compliance with prescribed medication and the possibility of under-prescription during the period relevant to the claim.

The Secretary of State supports this appeal. I produce part of the submission below:

“…. in relation to PIP mobility activity 1 Planning and Following a Journey, I am in agreement with the appellant’s representative that the FtT did not adequately address the safety considerations and that the FtT failed in its inquisitorial duty to gather sufficient and relevant information regarding the appellant’s functional ability in undertaking this activity and they did not consider the appellant’s seizures and their affect they would have to when planning a journey.

…

The FtT appear …to rely upon the appellant being compliant with his medication. However, there does not appear to be any findings from the FtT regarding the evidence …. The FtT appears to have focused primarily on the appellant’s lower limb mobility, and while safety considerations were addressed in relation to other activities, it remains unclear to the reader who is left in doubt whether the same level of thought to safety was applied to washing and bathing. This leaves the reader uncertain as to when and how the FtT considered the appellant’s safety.

Given that the appellant has stated they require assistance to remain safe while in the bathroom, it was incumbent upon the FtT to make clear and adequate findings regarding the appellant’s ability to wash and bathe safely, to an acceptable standard, repeatedly, and within a reasonable time, as defined in Regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013.

It appears therefore that the FtT has failed to give adequate consideration to the approach contained in paragraph 56 of the three-judge panel of the Upper Tribunal in RJ v SSWP [2017] UKUT 0105 (AAC) i.e. the tribunal should consider whether there is a real possibility, that cannot be ignored, of harm occurring, having regard to the nature and gravity of the feared harm. It follows that as the FtT has taken an erroneous approach in dealing with the nature of the appellant’s seizures this has impacted its decision with respect to a number of daily living and mobility activities as it has failed to apply the principles of the UT panel from RJ in determining whether the appellant can undertake the respective activities ‘safely’. As such I submit that the FtT has erred on a material point of law.

I respectfully submit that the FtT erred in law by failing to consider the appellant’s broader functional limitations in relation to their health conditions and ability to perform the relevant PIP activities. The Tribunal’s focus on isolated aspects of the appellant’s circumstances which resulted in not considering the appellants overall impact of their impairments. I am in agreement with the appellant’s representative that the inadequacy of reasons makes it difficult for an appellant to know whether a FtT applied the correct legal tests in assessing the evidence, making its findings of fact, and arriving at its decision.

…

Furthermore, regardless of whether or not he gets a warning, during these seizures he is unaware of his surroundings and takes 30 minutes to recover along with myoclonic jerks. Therefore, it could be said that if a person suffers from a seizure and loses consciousness/becomes unaware of his surroundings and suffers from postictal fatigue for up to 30 minutes, then that person would inevitably be placed in a vulnerable position and perhaps prone to falling if unaccompanied. As such, I submit that the FtT have failed to use their inquisitorial function when deciding whether the appellant may come into any of the scoring descriptors for mobility activity 1.

I respectfully would like to draw the JT Judge’s Church [sic] attention to Daily Living Activity 3 in light of the appellant’s diagnosis of Cystic Fibrosis, which has been present since 2000. The appellant explained to the FtT that he sees a specialist every six weeks, indicating that the condition is not fully managed and requires ongoing clinical oversight. Medical evidence from Dr Patel (FtT Bundle, Pages 75–76) confirms that the appellant attends the gym for exercise specifically related to managing his Cystic Fibrosis with a moderate tolerance. However, the FtT failed in its inquisitorial duty to explore or seek further information regarding the need for percussive physiotherapy. This omission is significant, as such therapy is a critical aspect as mentioned in the representative’s submission. The FtT appears to have focused narrowly on prompting for medication compliance, without considering the general demands of managing the condition, including the physical and cognitive effort involved. I therefore submitted that the FtT erred in law by failing to investigate and consider all relevant aspects of Daily Living Activity 3, neglecting its inquisitorial function, and placing undue emphasis on a single element of the activity.

Once more, I respectfully draw the JT Judge’s Church ‘’lattention [sic] to Daily Living Activity 4, washing and bathing. The appellant has stated their limitations while carrying out the activity within their PIP2 questionnaire (FtT Bundle, Page 45). They state that they do not feel safe when taking a bath due to the risk posed by seizures or epileptic episodes, and that they require monitoring. This concern is further supported by the PIP medical assessment, where it is recorded that the appellant “worries about having a seizure in the shower” (FtT Bundle, Page 103). Following the reasoning in (RJ), the risk of seizure is constant and cannot be reliably mitigated, even when an aura is present. The unpredictability of seizures, particularly in water, presents a serious risk of drowning. Despite this, the FtT did not adequately consider the safety implications of this activity, other than to mention the lack of aids such as a bathmat. Medical evidence (FtT Bundle, Addition H, Pages 1–3) indicates an increase in prescribed medication and confirms that the appellant is unable to drive, further supporting the severity of their condition…”

I adopt the reasoning advanced on behalf of the Secretary of State. In these circumstances, I am bound to allow the appeal.

In my judgment, the decision of the First-tier Tribunal discloses an error of law. It was incumbent upon the tribunal to make clear and adequate findings regarding the activities in dispute and the appellant’s ability to perform them safely, to an acceptable standard, repeatedly, and within a reasonable time, as required by Regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013.

Further, I concur with the Secretary of State that the tribunal failed to give adequate consideration to the approach set out at paragraph 56 of RJ v Secretary of State for Work and Pensions [2017] UKUT 0105 (AAC), namely that the tribunal should consider whether there is a real possibility, which cannot be ignored, of harm occurring, having regard to the nature and gravity of the potential harm.

By failing to consider the appellant’s broader functional limitations in relation to his health conditions and ability to perform the relevant PIP activities, the tribunal has erred in law. The inadequacy of reasons makes it difficult for the appellant to know whether the tribunal applied the correct legal tests in assessing the evidence, making its findings of fact, and arriving at its decision.

Accordingly, I direct that the matter be remitted to a differently constituted Tribunal for a full rehearing.

For the avoidance of doubt, the fact that the appeal has succeeded at this stage should not be regarded as any indication of the outcome before the First-tier Tribunal in due course.