SM v The Secretary of State for Work and Pensions (PIP)

These directions may be supplemented or changed by a District Tribunal Judge (DTJ) giving listing and case management directions.

The case will be listed as an oral hearing in front of a freshly constituted tribunal. The appellant is advised to attend.

She should be aware that the new tribunal will be looking at her health problems in relation to the qualifying periods for entitlement to a Personal Independence Payment, but that it must not take into account matters which did not obtain at the date that the Department’s decision under appeal was made. That does not mean than later matters are never relevant, but their relevance is limited to them shedding light on what the position was likely to have been at that time.

The new panel will make its own findings and decision on all relevant descriptors.

I thank Mr Whitaker for his background to the appeal, from which this introduction to the case is substantially taken.

Since it concerns a claim for a Personal Independence Payment my references, unless otherwise stated, are to the Social Security (Personal Independence Payment) Regulations 2013.

The appellant made a new claim for a Personal Independence Payment (PIP) on 07/07/23. This was disallowed by a decision dated 26/10/23, with the only scoring descriptor being two points under activity 8b.

At mandatory reconsideration on 08/12/23 the decision was not revised, and an appeal was lodged with the First-tier Tribunal (FTT)

At the FTT hearing on 10/01/25, the appeal was dismissed and decision of the Secretary of State was confirmed, save that in addition to the two points awarded under Daily Living activity 8b, further daily living activities, 4b and 6b led to six daily living points and mobility activity 2b enabled a further 4 points. The score was, however, insufficient for an award of either component.

Permission to appeal further was refused by the FTT Judge, and an application was made to the Upper Tribunal.

Upper Tribunal Judge Butler considered the application for permission to appeal, and in a ruling granting permission, she said:

Your appeal grounds state the First-tier Tribunal (“FTT”) that decided your appeal made an error of law in how it applied the daily living descriptors for activity 4 (washing and bathing) and 6 (dressing and undressing). You gave oral evidence that you require

You write that the medical evidence clearly supports your need for physical assistance when washing and dressing. The FTT did not engage properly with this evidence and incorrectly awarded you only 2 points as though you only needed an aid. This contradicted the appropriate descriptors for you (which you say should have been 4.d and 6.d each attracting four points).

Having reviewed the electronic appeal file, I am satisfied it is arguable with a realistic (as opposed to fanciful) prospect of success that the FTT made an error of law in relation to the following:

If the Tribunal did make an error of law in one or more of the ways I have described at paragraph 6(a) to (d) above, that error could be material in the sense that had it not been made, the outcome of your appeal might have been different. This satisfies the relatively low bar to be granted permission to appeal to the Upper Tribunal.

I therefore grant permission in relation to the ground set out at paragraph 6(a) to

above. These reflect your appeal grounds.

Mr Whitaker on behalf of the Secretary of State has now filed a submission supporting the appeal.

I hope I do him no disservice in crystallising that by saying that he agrees with Judge Butler’s observations, commenting particularly on the brevity of the Statement of Reasons in relation to the appellant’s left shoulder problem and the activities that relate to that; he argues that the findings and reasoning provided do not address in adequate detail the claimant’s assertions about the problems caused by her shoulder injury.

In the light of the Secretary of State’s support the appellant does not wish for an oral hearing, nor to make any further written observations, and she has agreed that she does not require me to give reasons for my decision.

Given the consent to a decision without reasons I am content to adopt the submissions of Mr Whitaker as providing the reasons for my decision that the previous tribunal erred in their consideration of the relevant issues.

The treatment by the tribunal of the appellant’s limitations in activities of daily living from her shoulder is inadequate in detail, but in particular its omission to explain what it drew from the later medical evidence about the absence of the expected levels of improvement is an error in law of itself. I emphasise my agreement with Mr Whitaker’s observation that the FTT seems to have taken its view about the shoulder injury from the early medical evidence of spring 2022 which envisaged improvement, without addressing the later medical evidence to the effect that the problems persisted; that approach leads me to doubt, or at least be uncertain as to whether the Tribunal has focussed on the correct time frame in relation to the new PIP claim. Given the legislative importance of time issues, both before and after a claim is made, that is an error of law.

The appellant contended for higher scores from the activities that were accepted by the Tribunal to give her problems. The only issue, then, was as the extent of them, and a further two points from any one of the three activities that had support from the Tribunal would have led to an award. That makes the errors material in that they might have made a difference to the outcome.

I add a further comment about the Statement of Reasons. It is poor practice to simply adopt the reasoning of the Health Care Professional by using page citations from the bundle, without setting out the reasoning that has been accepted. This Statement is the judgment of the Tribunal, and it is drafted to provide reasons that have been specifically requested by an appellant; it should explain the reasons so that, save in exceptional circumstances, they may be understood without the reader having to turn to other sources for the detail.

The appellant herself may, of course, make any further points on all issues at the rehearing, or in writing prior to it. If in writing, it should be submitted in time to reach HMCTS at least a week before the hearing.

For completeness, I draw to the attention of the fresh Tribunal the approach set out by Upper Tribunal Judge Hemingway in TR-v-SSWP (PIP) [2015] UKUT 0626 (AAC) which establishes that if a claimant is unable to perform an activity for part of a day that day counts towards that period provided that the inability to perform it affects them on that day to more than a trivial extent: in particular see [32-34].

Finally, I warn the appellant that the fact this appeal has succeeded here on an issue of law is not an indication that the rehearing will automatically be successful; it is the new Tribunal that will consider the evidence and determine the outcome.