Appeal No. UA-2025-001395-PIP
Between:
S.C.
Appellant
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Wikeley
Decided on consideration of the papers
Representation:
Appellant: In person
Respondent: Miss L Howard, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-Tier Tribunal (Social Security and Child Support)
Panel: Tribunal Judge C Hirschhorn, Dr S Harrison and Miss A Taylor
Tribunal Case No: SC007/24/01270
Digital Case No: 1725957610990783
Tribunal Venue: Leeds
Hearing Date: 28 February 2025
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with this decision and the following directions.
DIRECTIONS
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 28 February 2025.
The Appellant is reminded that the tribunal can only deal with the appeal, including his health and other circumstances, as they were at the date of the decision by the Secretary of State under appeal (namely 20 May 2024).
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 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.
These Directions may be supplemented by later directions by a Tribunal Legal Officer, Tribunal Registrar or First-tier Tribunal Judge.
REASONS FOR DECISION
Introduction
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).
The Upper Tribunal’s decision in summary and what happens next
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 factual background
The Appellant made a claim for PIP on 28 February 2024. The Secretary of State’s decision-maker disallowed that claim on 20 May 2024, finding that the Appellant scored 6 points for daily living activities (1b, 4b and 5b) and 4 points for mobility (2b). The Appellant appealed to the FTT. On 28 February 2025 the FTT allowed his appeal, finding that he scored 8 daily living points (1b, 4b, 5b and 6b) and 4 points for mobility (2b). The FTT accordingly made an award only of the daily living component at the standard rate from 28 February 2024 to 27 February 2027.
The grounds of appeal
The Appellant’s grounds of appeal were set out with care on Form UT1. In summary, he argued that the FTT had erred by failing to determine the speed at which he walked and by dismissing the levels of pain he experienced in walking. He also contended that inadequate findings were made by the FTT for the purpose of regulation 4(2A). The District Tribunal Judge had acknowledged that the FTT may have erred on the latter point, but refused permission on the basis that any such error was not material.
I gave the Appellant permission to appeal, observing as follows:
The Appellant’s grounds of appeal, as carefully set out in the submission on Form UT1 Box E, relate exclusively to mobility activity 2 (moving around) and are on the face of it arguable. The District Tribunal Judge’s observation about the (possible lack of) materiality of any error of law in the FTT’s approach may have some force (para 3 of the ruling dated 30/06/2025). So, the fact that permission to appeal has been granted should not be taken as any indication of the likelihood of the appeal succeeding. However, it may well be that the level of the FTT’s overall fact-finding and reasoning is insufficient to support the District Tribunal Judge’s observation.
Miss L Howard, the Secretary of State’s representative in these proceedings, supports the appeal. She sets out her analysis as follows:
It is my submission, that the FtT has erred in law in both their fact finding and duty to provide adequate reasons for their decision. The conclusions from the FtT on how they assessed the claimant’s functional abilities appears limited in their reasoning. It seems that what the FtT has provided at paragraphs 11-24 of the SOR with regards to the claimant’s difficulties with mobility activity 2 – moving around, appears to be no more than a rehearsal of part of the evidence and a conclusion without an adequate explanation.
The claimant was diagnosed with Sciatica in June 2023, caused by a slipped disc which affects his lower back and left leg. He has had an injection for the pain; it does not seem to have helped. He was also diagnosed with type 1 Diabetes in 1999. The claimant is also deaf in his left ear which began in 2008 due to an ear infection.
Turning to the ground of appeal, as noted in the PTA (repeated above) the FtT found that the claimant did not satisfy mobility activity 2e - can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided, as they provided the following reasons detailed at paragraphs 11-24 of the SOR which states:
“[The claimant] has had Type 1 Diabetes since May 1999 this is well controlled by insulin. He has deafness in his left air for which he trialled a hearing aid but found the amplification of everything too much, he is able to manage without one. More recently [the claimant] developed sciatica following slipping a disc whilst lifting his disabled daughter. He has been offered surgery tor this but feels unable to have it due to his caring role.
[The claimant] has had a steroid injection in February 2024. He takes one/two Tramadol two or three times a day. He describes these as being not that effective.
[The claimant] uses a crutch in his left hand this is mainly for getting up and down the stairs or getting up off floors.
[The claimant] has 5 children aged between 15 and 6, he is a single parent. His 15 year old daughter is disabled she is wheelchair bound and home schooled. The children spend 4 days a week with him and 3 days with their mother. He does not have any external carers for his daughter. [The claimant’s] 4 younger children all attend school
[The claimant] has to undertake all aspects of personal care for his daughter, she requires hoisting, pads changing, bathing, and dressing for example. She is non-verbal and requires close monitoring.
[The claimant] has to ensure everyone in the household is up and ready to go to school in the morning. He takes his children in his van, this involves putting his daughters wheelchair into the van, which includes some bending. He says when walking he feels the wheelchair steadies him a bit and he feels safer.
[The claimant] told the tribunal whilst not pain free he is able to walk for about an hour if you total up all his shorter walks.
He has to walk for about 250 metres for school drop, if he can take it slowly he is able to take that trip without stopping, there are some days he has to pause.
The week before the tribunal he took his children to the cinema in the centre of Leeds. He parked in St Pauls Street and then walked up to The Light a distance of over 400 metres part of the route being on an incline.
[The claimant] sent in as additional evidence activity logs from his Apple Watch going as far back as March 2023 and ending in September 2024 this shows that he is walking at the least 600 metres a day on multiple days he will be doing two works a day and on some days he will be walking over 1km…
…23. The tribunal considered the evidence before it with regard to [the claimant’s] ability to mobilise. The tribunal accepts that [the claimant] has pain when walking however he is able to walk everyday to do the school run. The evidence from his Apple Watch logs shows that [the claimant] is walking at least 500 metres on the majority of days and some days walking over 1 kilometre.
[The claimant] is able to mobilise between 50 and 200 metres and does so on the majority of days. The points awarded to him were appropriate. The tribunal considered the evidence did not support an increase in points.”
The FtT in their reasoning (repeated above) appear to have simply summarised the evidence before them and then concluded that at the date of the decision under appeal, the claimant did not satisfy mobility activity 2e, without providing adequate reasoning to support and explain how they reached their conclusion that the claimant was able to move around in accordance with the provisions of Regulations 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 (the PIP Regs 2013).
Although, the FtT appears to accept the claimant’s development of Sciatica following a slipped disc and claim to have considered the pain he experiences when walking, it is unclear upon my reading how the FtT concluded he was able to mobilise within a reasonable time period and complete the activity repeatedly.
It was noted by the FtT, at paragraph 18 of the SOR that “He has to walk for about 250 metres for school drop, if he can take it slowly he is able to take that trip without stopping, there are some days he has to pause.” The FtT accept that the claimant is in pain, however, it appears upon my reading of the evidence, that the FtT have failed to consider the level of pain the claimant experiences, how long the claimant can mobilise before stopping and whether he is able to complete the distance within a reasonable time period. For instance, the FtT remain silent on the evidence in the PIP2 form, dated 28/02/2024, where the claimant explicitly states that he walks slower than most people, due to increased pain, and often needs to use a crutch for support:
“I have difficulty walking every day but the pain can vary. I used to be a fast walker. Now even on a day where the pain is lower I can’t walk at the pace of most people. On a bad day frail, elderly people can walk faster than me. When I go shopping at Tesco I use the trolley as a support. I hold onto it when I have to lean over to get something off a low shelf, or I struggle to stand up again. When my pain is worse I use a crutch for support. I don’t like using them in public, so use it around the house more than outside. I still see it as a sign of vulnerability when someone holds the door for me because of the crutch. I’m a strong-willed person and try to avoid using it if I think I can, although this can lead me to needing to stop more often and having an increase in pain and difficulty walking and a slower pace. I don’t go out for walks like I used to. I used to enjoy a long walk but now I know it wouldn’t be possible and when I do go outside it is necessary, like Christmas and birthday shopping, where the pain has to be tolerated to get the trip done” (FtT bundle, p11).
As such, it is apparent that the FtT have not considered this evidence when making their conclusion. Should not the FtT have used their inquisitorial duty to establish how long it takes him to complete the distance and the level of pain experienced upon mobilising?
Further emphasising the point above, it is my submission that the FtT have failed to adequately apply Regulation 4(2A). For instance, there is further evidence the FtT did not take into consideration which also indicates that the claimant is in severe pain whilst walking anywhere which he must push through and take regular breaks in order to complete the necessity of taking his children to school:
“I walk considerably slower than the average person my age, less in half the pace, and also whilst doing so, am in considerable pain. This pain is from the moment I move to get out of the seat of my vehicle, not after 20 metres, 50 metres or more. The level of my pain was not taken into consideration. This is a school drop off or collection. It is essential for me to do for the two of my children that attended this school in question. Other than this, I do not regularly walk anywhere outdoors. I have to push through severe pain because of the reason for the walk, I mentioned that I will stop and rest on the walk, probably one time each trip. This could be from the moment that I get out of the vehicle, or just before the school gate, or anywhere in between. There is no set distance I could average before I get higher levels of pain and have to stop walking. Sometimes it will be more than once. Similarly, when indoors, I may stand up from the sofa and be unable to walk for a minute or so because of the pains, before even stepping a metre from the sofa. This happens often. I regularly have to stop on the stairs because my pains have increased to extreme levels and I'm unable to walk through this. This can happen anywhere in the home or outdoors, not just on the stairs. Walking from the sofa the Kitchen is only 3-4 metres and I will often lean against the door frame due to being unable to walk through the pain. I do not agree with the assessor that I can walk 50-200 metres due to the pace that I walk at, and the pain which I walk through” (FtT bundle, p46).
Therefore, as per Regulation 4(4)(c), it is apparent that the claimant cannot walk within a “reasonable time period” – no more than twice as long as the maximum period that a person without a physical or mental condition would take to complete the activity. As the claimant also states:
“Comparisons can be made to show how often I walk now, compared to before, the distances I walk being considerably shorter and only essential for school drop off collections, and the pace at which I walk is also very slow” (FtT bundle, Addition A p1).
It is clear the FtT has not adequately applied this as they focus only on the fact that the claimant takes his children to school and has walked 600 metres a day, without considering the length of time it takes him to complete the distance. As such it was incumbent upon the FtT to utilise its inquisitorial duty to establish how long it takes him to walk to distance of 600 metres. Should they not have asked - how far does he walk before he needs to stop? And does the activity take him twice as long as someone without a physical condition?
Also, the FtT appear to acknowledge that the claimant has had “Fluoroscopic guided Transforaminal injections” which proved to be ineffective. However, the FtT does not engage with evidence in a hospital letter, dated 27/03/2024, where the Doctor notes that the claimant has found that the “…injection was not helpful and he continues with the low back pain radiating to left leg...” (FtT bundle, Addition B p7). Therefore, further indicating that the claimant will experience significant pain upon mobilising.
In light of the evidence above, it is apparent that the claimant does in fact experience significant pain, to an extent that he declares that he cannot move more than 1 metre but no more than 20 metres, either aided or unaided due to his assertion that he requires multiple breaks and is often unable to walk before walking a metre. As such it is incumbent upon the FtT to at the very least explained what they thought of this evidence before arriving at their decision.
In view of this, it is unclear how the FtT reached the conclusion that the claimant is capable of standing and then walking using an aid or appliance more than 50 metres but no more than 200 metres either aided or unaided to an acceptable standard and therefore whether he is able to do so within the requirements of Regulation 4(2A) of The Social Security (Personal Independence Payment) Regulations 2013. As such, I respectfully submit that the FtT have provided inadequate reasons to explain their decision and further findings of facts are required in relation to mobility activity 2.
I should add that the Appellant has understandably made no further observations by way of reply on the substance of the appeal.
Analysis: a summary
I agree with the analysis of the Secretary of State’s representative in her written submission supporting the appeal to the Upper Tribunal and as set out 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.
What happens next: the new First-tier Tribunal
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 May 2024, and not the position as at the date of the new hearing, which will obviously be about 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 under appeal to the FTT, was taken on 20 May 2024.
Conclusion
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.
Nicholas Wikeley
Judge of the Upper Tribunal
Authorised by the Judge for issue on 9 March 2026