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

HJ was receiving a standard rate award of the daily living component of personal independence payment (“PIP”) or the period from 19 November 2020 to 16 February 2024. On 13 March 2022, HJ reported a change in her circumstances to the Department for Work and Pensions (“DWP”). Acting on behalf of the Secretary of State for Work and Pensions, on 17 June 2022, DWP superseded (which means, changed) HJ’s PIP award by extending it to run until 16 July 2025, but without changing the rate of the award or the components awarded. DWP decided HJ continued to score 8 points for daily living activities and 4 points for mobility activities.

Having been through the mandatory reconsideration process, on 08 December 2022, HJ lodged an appeal with the First-tier Tribunal. Her appeal was heard on 29 August 2023 and on 30 August 2023, the First-tier Tribunal (“FTT”) issued a decision awarding HJ 10 points for daily living activities and 4 points for mobility activities.

As the threshold for the standard rate of PIP is 8 points and 12 points for the enhanced rate, the FTT confirmed DWP’s decision that HJ was entitled to the standard rate of the daily living component of PIP. It therefore refused her appeal.

On 24 April 2024, HJ applied to the Upper Tribunal for permission to appeal against the FTT’s decision. There was a delay in the Upper Tribunal in processing HJ’s application, due to the application being assessed as incomplete (it lacked the UT1 application form but contained all the other documents required).

On 21 March 2025, the application was referred to a Judge to consider whether to grant permission to appeal. Given the delay that had already occurred, even though there was no UT1 form, I did not delay determining HJ’s application. In my decision determining permission to appeal, I apologised on behalf of the Upper Tribunal to HJ for the delay and the effect it would have had on her. A completed UT1 application form was subsequently received.

In a decision dated 28 March 2025, I granted HJ permission to appeal against the FTT’s decision on the basis it was arguable the FTT had made one or more of the following errors of law (summarised in a useful way by the Secretary of State’s representative):

Mr R Naeem is the Secretary of State’s representative in these proceedings. He supports the appeal in a clear and helpful written submission dated 06 May 2025. Mr Naeem invites the Upper Tribunal to set aside the FTT’s decision dated 30 August 2023 for containing material errors of law, for the reasons set out below.

Dealing adequately with the supersession of HJ’s PIP award: the FTT acknowledged at paragraph 18 of the Statement of Reasons that DWP had started a review of HJ’s award on 13 May 2021. This was the only reference to the supersession being carried out. Mr Naeem submits that applying the principles in SC v SSWP (PIP) [2019] UKUT 165 (AAC), the FTT made an error of law, by failing to identify the legal ground for supersession and failing to explain adequately whether that ground applied factually to HJ.

Adequacy of factual findings about HJ’s medical conditions: HJ reported experiencing fibromyalgia and Reynaud’s phenomenon, vertigo, vestibular migraines, hearing loss, asthma, anxiety and depression, hypermobility, hypertension, osteoarthritis and type 2 diabetes. Mr Naeem submits that while the FTT noted these at paragraphs 13, 14 and 18 of its Statement of Reasons, it did not address HJ’s hypermobility or vertigo in that document (apart from stating in paragraph 21 that HJ had said her hypermobility had worsened).

Mr Naeem submits that it appears the FTT did not give greater consideration to those conditions because it only felt a specific set of conditions affected HJ’s ability to carry out the PIP activities. He observes that the FTT found HJ to be an unreliable witness and prone to exaggerating aspects of her difficulties. Mr Naeem submits, however, that while an FTT is entitled to make these findings in an appeal, it should then proceed to explain in clear terms which aspects of the appellant’s evidence it has rejected.

Mr Naeem submits that it is unclear what the FTT made of HJ’s evidence about her hypermobility and vertigo, if it had considered those conditions further at all. Mr Naeem argues that given the FTT noted HJ had reported her hypermobility deteriorating, the FTT should have addressed what it made of this. He also observes there was evidence from a consultant neurologist that HJ experienced dizziness, clumsiness and not being able to walk straight as a result of her POTS and vertigo (FTT bundle, page 201). Mr Naeem submits these symptoms could have affected HJ’s ability to undertake PIP activities reliably, if the FTT had accepted that evidence. He argues that as the FTT did not address it, the FTT made an error of law by failing to provide adequate reasons for its decision.

Adequacy of reasoning regarding PIP daily living activity 2 (taking nutrition): Mr Naeem submits the FTT failed to explain adequately why it rejected HJ experiencing difficulties with using cutlery. The FTT reasoned that HJ did not experience these because she completed the award review form with very neat and stylish handwriting, indicating an ability to grip a pen, and used a walking stick, requiring grip. The FTT relied on the fact HJ had not mentioned problems gripping in her appeal form, review form, or mandatory reconsideration request.

Mr Naeem submits that it is unclear how neat handwriting and grip clearly correlate to the ability to use cutlery to cut food up into pieces, since the functional action is not entirely the same. He argues that as a minimum, the FTT should have explained this further, so HJ could understand the link it had identified between the two activities. He argues this is particularly important given the FTT had accepted HJ experienced pain and stiffness from her fibromyalgia and osteoarthritis (paragraph 44a of Statement of Reasons).

Adequacy of reasoning regarding PIP daily living activity 3 (managing medication): Mr Naeem submits the FTT was entitled to make the findings it made that HJ received prompting to fill her dossette box for convenience and as part of a family routine and not due to forgetfulness. This was based on the fact that at the hearing, HJ could recall her medications and treatment in great detail. Mr Naeem submits, however, that the FTT evidently overlooked HJ’s reported difficulties of a lack of motivation due to the pain she experiences and her mental health condition. He submits this was an error of law.

Adequacy of reasoning regarding PIP mobility activity 1 (planning and following a journey): Mr Naeem submits the FTT’s conclusion HJ could perform this activity unaided, was partly due to it finding her evidence lacked consistency and her mental health condition was not as severe as claimed. The FTT wrote:

“Further, the Tribunal found that although the Appellant had some mental health issues, the treatment prescribed was not consistent with the overwhelming psychological distress needed for points here. The Appellant had stopped driving because of her migraines and there was no cognitive reasons [sic] why she could not plan a route.”

Mr Naeem submits it is unclear why the FTT thought HJ’s treatment was inconsistent with the threshold of overwhelming psychological distress. The FTT did not explain which treatments she was undergoing, and why that meant she would not experience overwhelming psychological distress. He submits the FTT should have addressed and explained what it made of HJ’s evidence that she experienced panic attacks when having to undertake unfamiliar journeys. Mr Naeem submits this was an error of law.

Adequacy of findings and reasoning about PIP mobility activity 2 (moving around): Mr Naeem submits that the FTT accepted HJ had difficulty mobilising but considered she was restricted to being ability to mobilise between 50 and 200 metres. He observes the FTT accepted HJ has difficulties arising from pain and fatigue (paragraph 95 of Statement of Reasons). Mr Naeem argues that it is not clear from the Statement of Reasons whether the FTT considered how HJ’s pain and fatigue impacted her ability to mobilise up to 50 metres, in accordance with regulation 4(2A) of the PIP Regulations 2013. Mr Naeem submits the reasons given by the FTT do not demonstrate it considered this, leaving uncertainty about how it was addressed. He submits the FTT failed to provide adequate reasons for this part of its decision.

Finally, Mr Naeem confirms that the Secretary of State has commenced a new review of HJ’s PIP award, although no decision has yet been reached about it.

Having seen Mr Naeem’s submissions, HJ’s representatives have, understandably, not provided further submissions about this appeal.

Neither party requested an oral hearing of the appeal. I took these preferences into account. I considered the appeal file. I decided the interests of justice did not require an oral hearing. The parties agree the FTT made material errors of law. It was proportionate to determine the appeal on the papers.

At the permission stage, I only needed to be persuaded that it was arguable with a realistic (as opposed to fanciful) prospect of success that the FTT had made an error of law in a way that was material.

At this substantive stage, I need to be satisfied on the balance of probabilities that the FTT did make an error or errors of law that were material.

I am satisfied, on the balance of probabilities, that the FTT made material errors of law in relation to the appeal grounds addressed by Mr Naeem at paragraphs 8 to 17 above, dealt with in more detail by his submission dated 06 May 2025.

Having decided the FTT’s decision involved material errors of law, it is appropriate to exercise my discretion to set aside the Tribunal’s decision dated 30 August 2023 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act provides that I must either remit the case to the First-tier Tribunal with directions for their reconsideration or remake the decision.

Neither party invited me to remake the FTT’s decision. In any event, it is necessary for facts to be found. The First-tier Tribunal is best placed to evaluate the evidence, including using its medical and disability expertise, and to make appropriate findings of fact.

I therefore remit HJ’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about what entitlement HJ had to PIP at the date of DWP’s decision on 17 June 2022.

Although I have set aside the FTT’s decision dated 30 August 2023, I am not making any findings, or expressing any view, about what entitlement HJ should have had to PIP at 17 June 2022. The next tribunal will need to hear evidence, make its own findings of fact, and provide its reasoning for the decision it reaches.