KH v Secretary of State for Work and Pensions

This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 13 December 2024.

The Appellant is reminded that the tribunal can only deal with the appeal, including her health and other circumstances, as they were at the date of the decision by the Secretary of State under appeal (namely 26 July 2023).

If the Appellant has any further written evidence to put before the tribunal and, in particular, further medical evidence, this should be sent to the HMCTS regional tribunal office within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).

The new First-tier Tribunal is not bound in any way either by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

The Appellant’s appeal to the Upper Tribunal succeeds and there will need to be a completely fresh hearing of the original Personal Independence Payment (PIP) appeal before a new First-tier Tribunal (FTT).

I allow the Appellant’s appeal to the Upper Tribunal, which has the support of the Secretary of State’s representative. The decision of the First-tier Tribunal involves a legal error. For that reason, I set aside the Tribunal’s decision.

The Appellant’s case now needs to be reheard by a new and different First-tier Tribunal. I cannot predict what will be the outcome of the re-hearing. So, the new tribunal may reach the same, or a different, decision to that of the previous Tribunal. It all depends on the findings of fact that the new Tribunal makes.

The Secretary of State’s decision-maker refused to make an award of either PIP component. The Appellant appealed to the FTT. The FTT, following a remote video hearing, set aside the DWP decision under appeal. The FTT made an award of the standard rate of the PIP mobility component (10 points) for the period from 14/03/2023 to 13/03/2026 but no award in respect of daily living (4 points).

The Appellant’s grounds of appeal were set out in a detailed annex to her Form UT1. She concluded:

I gave the Appellant permission to appeal, observing as follows:

However, Mr Ryan Binks, the Secretary of State’s representative in these proceedings, supports the appeal. He sums up his analysis as follows:

I should add that the Appellant has made detailed further observations on the substance of the appeal by way of reply. In summary, she asks the Upper Tribunal to re-make the decision under appeal or, if it is remitted, to remit the case with detailed directions for the re-hearing.

I agree with the analysis of the Secretary of State’s representative in his written submission supporting the appeal to the Upper Tribunal and as summarised above.

I am accordingly satisfied that the First-tier Tribunal erred in law for those reasons. I therefore allow the Appellant’s appeal to the Upper Tribunal and set aside (or cancel) the Tribunal’s decision.

I have considered the possibility of re-deciding the matter at this level. However, it is important to bear in mind that the First-tier Tribunal is the primary fact-finding body, given its breadth of expertise and experience. I therefore remit (or send back) the original appeal for re-hearing to a new tribunal, which must make a fresh decision.

There will therefore need to be a fresh hearing of the appeal before a new First-tier Tribunal. Although I am setting aside the previous Tribunal’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to PIP and, if so, which component(s) and at what rate(s). That is a matter for the good judgement of the new Tribunal. That new Tribunal must review all the relevant evidence and make its own findings of fact.

In doing so, however, unfortunately the new Tribunal will have to focus on the claimant’s circumstances as they were as long ago as in July 2023, and not the position as at the date of the new hearing, which will obviously be more than two years later. This is because the new Tribunal must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998). The decision by the Secretary of State, which was appealed to the FTT, was taken on 26 July 2023.

The new FTT should expressly apply regulation 4(2A) and regulation 7 to all relevant activities, not only washing & bathing, setting out its findings on reliability and the majority of days test. It will need to give appropriate weight to the medical evidence (including autism/ADHD and associated sensory/executive-function impacts) and make findings on fluctuation/variability and the need for prompting/supervision.

I therefore conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The case must be remitted for re-hearing by a new tribunal subject to the directions set out above (section 12(2)(b)(i)). My decision is also as set out above.