TLG v The Secretary of State for Work and Pensions

This is an appeal, with my permission, against the decision of the First-tier Tribunal sitting at Ipswich on 17 May 2024.

I shall refer to the appellant hereafter as “the claimant”. The respondent is the Secretary of State for Work and Pensions. I shall refer to her hereafter as “the Secretary of State”. I shall refer to the tribunal which sat on 17 May 2024 as “the Tribunal” and the tribunal to which I am remitting the matter as “the new tribunal”.

The claimant appealed against the decision of 22 May 2023 that he was entitled to 8 points for the daily living component and 4 points for the mobility component of personal independence payment. He was therefore entitled to the daily living component, but not the mobility component, of personal independence payment at the standard rate from and including 9 December 2022 to and including 11 May 2026. The decision was subsequently reconsidered, but not revised, on 22 October 2023.

The matter came before the Tribunal on 17 May 2024 when the claimant did not appear, having elected for the matter being decided on the papers, and the Tribunal considered that it was fair to proceed in his absence. The appeal was refused.

The Tribunal found that the claimant was entitled to 8 points for the daily living component and 0 points for the mobility component of personal independence payment. He was therefore entitled to the daily living component, but not the mobility component, of personal independence payment at the standard rate from and including 9 December 2022 to and including 11 May 2026.

On 30 April 2025 I acceded to the claimant’s application and granted him permission to appeal. It seemed to me that there was an arguable case that the Tribunal had erred in law in relation to daily living activity 9. In particular, in relation to that activity, which was referred to on page 131 of the appeal bundle and with which the Tribunal dealt in paragraph 22 of the statement of reasons, was not the claimant potentially entitled to points for either descriptor 9(b) or descriptor 9(c) in the light of the decisions in SF v. Secretary of State for Work and Pensions (PIP) [2016] UKUT 543 (AAC) (that the claimant engaged effectively with the healthcare professional or could attend for hospital appointments was not sufficient) and HA v. Secretary of State for Work and Pensions (PIP) [2018] UKUT 56 (AAC) (that the claimant could engage effectively only with others who were already known to him/her was not sufficient)?

He was awarded 8 points for the daily living component and 4 points for the mobility component. He was therefore entitled to the daily living component of personal independence payment at the standard rate from and including 9 December 2022 to and including 11 May 2026. To be entitled to the enhanced rate he would need to be awarded 12 points. An award of 2 points for descriptor 9(b) (needs prompting to be able to engage with other people)

I did not, however, grant permission to appeal in relation to the grounds of appeal relating to the other activities, whether of daily living or of mobility, which seemed to me to be a disagreement with the Tribunal’s findings of fact rather than demonstrating an arguable case that the Tribunal erred in point of law.

On 10 June 2025 the Secretary of State provided submissions and supported the appeal. The claimant had little to add on 9 July 2025.

The Secretary of State confirmed that the claimant had not made any further claim for personal independence payment after the hearing on 17 May 2024.

Neither party has sought an oral hearing and I do not consider that it is necessary to hold one in order to resolve the matter. Both parties have also consented to a decision without reasons under rule 40(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

The Secretary of State submitted that

“Considering activity daily living 9, engaging with others.

The SOR under paragraph 22 shows the FtT have used the fact “…goes out with a friend to the sea Although he has some anxiety, he can engage with other people face-to-face”. And under paragraph 7 the FtT have found his mental health is well controlled and is currently prescribed sertraline.

Further under paragraph 11 the FtT state that “…When he does go out, he feels anxious but does not suffer from overwhelming psychological distress when he undertakes these activities…further, he can talk to strangers, although he doesn’t like to, but one or two sentences would enable him to ask for directions if required”. The FtT appear to have conflated the activities of engaging with others and planning and following a journey, which could leave the reader in doubt as to whether they have applied the correct test when viewing the appellants restrictions in engaging socially. I would note that the visit to the “sea” is a one-off trip, the FtT could have gathered more information in their inquisitorial function. Upon reading the SOR, it appears that the FtT have taken a very narrow approach and used this occasion to support their decision.

For the purpose of this submission ‘engage socially’ is defined in Schedule 1 Part 1 of the Social Security (Personal Independence Regulations) 2013 as; a) ‘interact with others in a contextually and socially appropriate manner; b) understand body language: and c) establish relationships. For completeness, Part 1 of Schedule 1 defines “prompting” as meaning “reminding, encouraging or explaining by another person”. As one can see from the FtT’s reasoning it had concluded that the claimant was able to engage with the HealthCare Professional (HCP) and that he has friends that he socialises with.

I agree with Judge West at point 3, where it is held that the FtT may have erred in failing to consider what is held in SF v The Secretary of State [2016] UKUT 543 (AAC),“(that the claimant engaged effectively with the healthcare professional or could attend hospital appointments was not sufficient) …”. As noted above the FtT found that the appellant was able to take part in the medical assessment with the HCP,noted by the FtT at paragraph 13 of the SOR. The appellant’s friend will take them to appointments (Page 109 FtT Bundle), could this be indicative of the appellant requiring support when attending such appointments? In addition, could it be that the appellant feels that they have no option but to attend appointments, such as hospital, doctors, medical assessments? However, upon ones reading of the SOR it appears that the FtT have placed undue weight on the appellant’s ability to interact with the HCP and of particular importance is the FtT’s inadequacy to explain how it came to the conclusion that it did in relation to daily living activity 9.

Whilst the FtT found that the appellant was able to take part in the assessment with the HCP and at the hearing it appears the FtT have attributed the appellant’s ability to speak on the phone as an ability to engage with others face to face, I respectfully submit that this is not the correct interpretation of daily living activity 9 on which the primary focus is face to face engagement. Whilst the appellant did engage with the HCP (which was a telephone consultation as noted above and the Tribunal hearing. The only evidence the FtT has used and applied is 2 incidents of where engagement has taken place with a health professional and a close friend. This not indicative of a claimant that was struggling to engage. As such, I submit that the FtT have given inadequate reasons for their decision.

While the FtT is permitted to give weighting to whatever evidence that it chooses or thinks is necessary during its fact finding and to make its decision, they could have explored in greater detail about the level of restriction the appellant faces and what input is required. It further appears that the incorrect test for “engaging socially” has been applied, as the FtT has not established if there is any social interactions with others and focused on interactions with professionals such as medical personal and the Tribunal members in a professional setting, there has been no fact finding for how the appellant would cope in setting with others, and if support was required it would have needed to be further established where and how it is delivered and consider it in a holistic manner and provide sufficient reasons explaining why it preferred to use the single event of going to the sea as the evidence for its disallowance.

I respectfully submit that the FtT have erred in law, as they have not considered the appellants ability to both “engage socially”, and on reading the SOR it appears the Tribunal failed to consider if the appellants would benefit from additional “social support” to be able to engage with others, taking into account their unwillingness to engage with people and difficulties forming friendships. The FtT could have asked further supporting questions to form a more detailed understanding of the restrictions faced, rather than rely on one key fact. Therefore, this has resulted in the Tribunal making insufficient findings in the SOR to support and explain its decision concerning daily living activity 9.

In view of the above, Irespectfully submit 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. Notwithstanding my support of the above grounds, I courteously submit that the further ground raised by the UT Judge in relation to daily living activity 9, will be subsumed by the newly constituted FtT.”

For the reasons identified by the Secretary of State, I am satisfied that there was the Tribunal made errors of law which were material to the decision and for that reason the decision of the Tribunal should be set aside.

In the circumstances I do not need to consider whether the Tribunal made any other errors of law.

I am satisfied that the resolution of any other grounds of appeal will fall to be subsumed at the hearing before the new tribunal.

I therefore allow the appeal and set aside the decision of the Tribunal. I remit the matter to a new tribunal which should conduct a complete rehearing of the matter.

I must stress that the fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication as to the outcome of the rehearing by the new tribunal. It is quite possible that the new tribunal may end up effectively coming to the same decision as the previous Tribunal, namely that the claimant was entitled to the daily living component, but not the mobility component, of personal independence payment at the standard rate from and including 9 December 2022 to and including 11 May 2026.

Alternatively, it is possible that the new tribunal might take a different view of the facts from that of the Tribunal and reach the conclusion that in fact the claimant was entitled to the daily living component at the enhanced rate and one or other rates of the mobility component of personal independence payment from and including 9 December 2022 to and including 11 May 2026.

It is for the new tribunal itself to decide which of these alternative options open to it applies, depending on the view it takes of the facts and providing it makes proper findings of fact and gives adequate reasons. It would not be appropriate for me to express any opinion either way on the merits of the appeal.

The following directions apply to the hearing before the new tribunal:

The new tribunal should not involve any member who was a member of the Tribunal involved in the hearing of the appeal.

The new tribunal must considerand make relevant findings as to whether or not the claimant satisfied the criteria to be awarded the enhanced rate of the daily living component and/or one or other rates of the mobility component of personal independence payment from and including 9 December 2022 to and including 11 May 2026. In so doing the new tribunal should in particular have regard to the submissions of the Secretary of State dated 10 June 2025.