LS v Secretary of State for Work and Pensions

At the hearing on 23/01/2025 [claimant] stated that his respiratory condition and dizziness had improved since April 2023. He stated he could prepare a simple meal if he was sitting down in April 2023. He required assistance to put on and take off his pressure socks in the morning and at night. He was spending most of his time in bed, but he could leave the house once per month and interact with other people. He used to be able to drive long distances, but he is no longer driving.”

In addressing the claimant’s representative’s first ground of appeal regarding the FtT’s misdirection and confusion on what evidence the FtT relied upon when recording their findings at paragraph 16 (repeated above), where it is noted that the FtT stated that the claimant’s oral evidence at the hearing (23/01/2025) was recorded as “his respiratory condition and dizziness had improved since April 2023. He stated he could prepare a simple meal if he was sitting down in April 2023…” However, this leaves the reader in doubt as to what the FtT were implying, specifically given the claimant’s representative having listened to the record of proceedings states that there is no record of the claimant stating he could prepare a simple meal when sitting.

It appears that the FtT have conflated the HealthCare Professional’s (HCP) findings as noted at paragraph 15a (repeated above) where the HCP stated at page 142 “sitting he could open packaging, peel and chop carrots, knows how to use hob. Could not boil them at the hob; would not be able to manage stand at hob or drain them due to feeling faint and standing causing shortness of breath...”. However, it is noteworthy that the HCP did not recommend any points for this activity despite noting the claimant would have to sit [page 149]. As such, I submit that the FtT should have used their inquisitorial function to establish the facts, provided a full explanation as to why the FtT drew this inference at the date of the decision and deal with the conflict between their own evidence in the SOR, where the claimant may or may not have stated this as fact.

In dealing with daily living activity 1 (preparing food), as noted by the claimant’s representative. I note the FtT recorded the following at paragraph’s 22 to 26 of the SOR:

Whilst the FtT have noted at paragraph’s 25 and 26 of the SOR (repeated above) that they agree with DM’s decision to award 2 points for descriptor 1b. That being said, it appears that the FtT have taken a narrow view of all the evidence recorded in the bundle. I would further note that the FtT appear to have placed undue weight when relying on the HCP report. This appears to have limited the FtT’s understanding of all the evidence, specifically given the HCP (repeated above) at page 149, regardless of finding that he required to sit, did not recommend any points for daily living activity 1.

There is further evidence in the claimant’s mandatory reconsideration letter, where a report from Occupational Health was provided with recorded at page 171.

“…he has noticed over the last year or so that prolonged telephone conversations to cause him very significant fatigue and fatigue is well known to cause flare up of POTS. Obviously, in the course of work-related telephone calls, there is significantly more cognitive demand in terms of focus and memory and it seems to me that this is what taxed his energies and therefore left him more prone to fatigue and light-headedness.”

Notwithstanding the FtT’s findings and engagement with the HCP report, that they have awarded 2 points. Moreover, the FtT remain silent upon the evidence of the Occupational Health report, which clearly demonstrates that the claimant’s level of fatigue, which in turn cause’s flare ups in the claimant’s POTS. This is evidence that the FtT failed to engage with or explore further with the claimant. Could it be that even just talking would cause fatigue and this in turn would result in flare ups? This leads one to consider if the claimant was able to undertake all the tasks related to freshly preparing and cooking a simple meal without the assistance of another person in accordance with the provisions of Regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013.?

In dealing with the claimant’s representative’s ground of appeal regarding daily living activity 9 – (engaging with others face to face), I note that the FtT stated the following at paragraph’s 89 to 92 of the SOR:

“89.

“The PIP HPs reported: [Claimant] can engage with other people, unaided for more than 50 per cent of the days of the required period. He could (a) interact with others in a contextually and socially appropriate manner; (b) understand body language; and (c) establish relationships. The nature and extent of [claimant’s] health conditions and consequent functional restrictions are generally consistent with the HP reports.

90.The work capability HP reported in April 2022 that [claimant] can answer the door when the shopping delivery is late or earlier than he is expecting on the day. He can have conversations with unfamiliar delivery staff when alone without anxiety and with other people waiting for their hospital appointments.

91.The April 2023 PIP HP report states: [Claimant] reports his condition has remained the same over the last 12 months.

92.The Tribunal finds that [claimant] can engage with other people, unaided for more than 50 per cent of the days of the required period. He could (a) interact with others in a contextually and socially appropriate manner; (b) understand body language; and (c) establish relationships. Descriptor 9a is applicable.”

It is unclear how the FtT came to this conclusion, specifically given that the claimant had stated in his PIP2 questionnaire at page 117 states: “I’m limited on the amount of time I can talk for, so I only mix with people I know…”. I also note that the HCP recorded at page 141 during their assessment that “Leisure\Social Activities\internet\phone; Will see family and friends two times per month. They will come pick him up, or they will come to visit him. No social outing…”. Could it be that the claimant is in fact only able to engage with familiar people and even this appears to happen on a limited number of times a month as recorded by the HCP (repeated above).

In addition, whilst the claimant had stated in the previous HCP assessment that he would speak to the delivery driver, given that this may only be a short exchange, it is unclear why the FtT have relied on this fact when deciding that the claimant would not satisfy any of the point scoring descriptors for daily living activity 9. As noted by the FtT at paragraph 88 of the SOR in deciding what ‘engage socially’ means, the starting point would be Schedule 1 of The Social Security (Personal Independence Payment) Regulations 201, which states:

“engage socially” means—

(a)

interact with others in a contextually and socially appropriate manner;

(b)

understand body language; and

(c)

establish relationships;”

However, it is unclear whether the FtT did in fact consider whether the claimant was able to undertake any of the three limbs of definition, in particular given the few occasions the claimant does engage and these are with familiar people and that he struggles to speak due to his condition, which in turn leads to fatigue and flare ups of his POTS. As such the FtT have failed to make adequate findings of facts and given inadequate reasons. This I submit is a further error in law.

Moving onto the claimant’s representative’s final ground of appeal regarding mobility activity 2. It is maintained by the representative that the FtT failed to adequately consider if the claimant is able to mobilise in accordance with Regulations 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013. I note the FtT stated at paragraph’s 111 to 112 of the SOR the following:

“111.

“The April 2023 PIP HP report states: [Claimant] reports his condition has remained the same over the last 12 months. He has symptoms of shortness of breath and dizziness upon exertion and when walking. [Claimant] reports variability in the distance he can mobilise depending on how his symptoms are that day. He reports walking 15-20 metres unaided and then stopping to rest due to shortness of breath; and then repeating this distance at a slow pace with normal gait. The investigations have ruled out any lung conditions or heart failure. He has only ever been prescribed a reliever, which he stopped due to worsening of palpitations. There have been no other inhalers, medication or other investigations. No lower limb restrictions were reported. He can manage mobility activities unaided.

112.

[Claimant] was awarded 4 points under descriptor 2b by the decision maker (page 173). The Tribunal finds that [claimant] could stand and then move more than 50 metres but no more than 200 metres, either aided or unaided. Descriptor 2b applies.”

Although the FtT record the submission and HCP findings at paragraph’s 109 to 110, however, they do not comment on the fact that the claimant’s representative’s submission had reported “…At the date of the decision any exertion when mobilising brought on breathlessness, light-headedness and fatigue. These symptoms were so severe that he was largely confined to bed for most of the time. As stated in his PIP2 application form at page 123 it was ‘difficult to stand up, let alone walk’. A letter dated 17/11/2023 from the respiratory department corroborates this as [claimant] confirmed he felt ‘very breathless on minimal exertion’…”. At paragraph 110 of the SOR: “… He will walk for 5 minutes at a slow pace…” Also, the HCP recorded that: “…He reports walking 15-20 metres unaided and then stopping to rest due to shortness of breath; and then repeating this distance at a slow pace with normal gait…”. (repeated above).

As a minimum when recording mobility activity 2 it was relevant to consider all the evidence and whether the claimed breathlessness, light-headedness and fatigue may have an effect on the claimant’s ability when mobilising. Therefore, given the evidence as noted above, it was incumbent upon the FtT to consider the combination of the difficulties, which may make mobilising difficult for him. The FtT’s decision and reasons lead me to infer that they did not adequately consider the claimant’s ability to mobilise in accordance with Regulations 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013. As such, I submit that the FtT have erred in law by providing insufficient reasons to explain their choice of descriptor for mobility activity 2 – Moving Around.

It appears that what the FtT has provided when reading the SOR (repeated above) is a statement of conclusions without explanation or reason of how it weighed the evidence before it. Upon ones reading given the above it is clear the FtT have regarded the evidence in parts, when deciding to award points. However, from the reasoning provided it is unclear how they came to their conclusion, given that the claimant’s evidence and the evidence from the claimant’s representative and medical evidence supports the claimant’s difficulties. It appears that the FtT have placed significant reliance upon the limited noted findings. Therefore, it is my submission that the FtT’s failure to deal with the totality of the evidence and the apparent discord between the FtT’s acceptance of the claimant suffering from the medical conditions noted and concluding that it did not have an adverse impact to score higher, renders its decision erroneous in law.

Whilst there is no requirement to refer to every piece of evidence, however, as a minimum when recording the daily living and mobility activities, it was relevant to consider the documents in relation to the claimed difficulties and the comorbidities of the claimants’ conditions. Therefore, given the evidence as noted above, it was incumbent upon the FtT to consider the combination of the difficulties, which may make it difficult to undertake the descriptors claimed for.

Although the FtT is entitled to give weighting to whatever evidence that it chooses, where there is conflicting evidence, it must in the first instance explore and consider it a holistic manner and provide sufficient reasons explaining why it preferred the evidence that it had. In this appeal the FtT does not appear to have done that. There appears to be a distinct lack of reference to the evidence provided by the claimant, and medical evidence, which demonstrate the nature of his health conditions. Therefore, it could be said that had the FtT given appropriate consideration to all the evidence, including accurately identifying the effects of the claimant’s conditions, the FtT may have considered the claimant’s limitations. As such, I submit that the FtT have failed to give adequate reasons as to why evidence in parts was not accepted when deciding not to award points.

In view of the above, I am in agreement with the UT Judge that the inadequacy of reasons makes it difficult for a claimant to know whether a FtT applied the correct legal tests in assessing the evidence, making its findings of fact, and arriving at its decision.

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.

For completeness, the UT Judge will wish to know that the claimant has not made any further claims to PIP.”