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

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 6 December 2024.

The Appellant is reminded that the new First-tier Tribunal can only consider the appeal by reference to their health and other circumstances as they were at the date of the original decision by the Secretary of State under appeal (namely 7 December 2023).

If the Appellant has any further written evidence to put before the First-tier Tribunal relating to that period, including any further medical evidence, this should be sent to the relevant HMCTS regional tribunal office within one month of the issue of this decision.

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.

I allow the Appellant’s appeal to the Upper Tribunal. The First-tier Tribunal’s (‘FtT’) decision dated 6 December 2024 involves an error on a point of law and I therefore set aside the decision.

The case now needs to be reheard by a new FtT. I cannot predict the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the appeal before the new FtT will succeed on the facts. The new FtT may reach the same, or a different, decision to that of the previous tribunal.

The Appellant was born on 17 August 1965. She suffers from fibromyalgia, osteoarthritis, psoriatic arthritis, depression and high blood pressure.

On 4 October 2023, the Appellant made a claim for Personal Independence Payment (‘PIP’). By a decision dated 7 December 2023, the Appellant was assessed by the Respondent as scoring 4 Daily Living points (descriptors 1b and 4b) and 4 Mobility points (descriptor 2b). As this fell short of the required number of points for an award of PIP, no award was made. The decision was reconsidered by the Respondent on 20 February 2024 but not revised.

The Appellant appealed to the FtT. By a decision made on 6 December 2024 and confirmed in a Decision Notice dated 7 December 2024, the FtT confirmed the existing scores and so dismissed the appeal. By a further Decision Notice dated 4 July 2025, the FtT refused permission to appeal to the Upper Tribunal.

The Appellant then applied to the Upper Tribunal for permission to appeal. On behalf of the Appellant, Ms Holland submitted that the FtT erred in its consideration of Daily Living activities 5 (managing toilet needs) and 6 (dressing and undressing) and Mobility activity 2 (moving around).

By an order dated 23 December 2025, Upper Tribunal Judge Church granted permission to appeal in respect of all three PIP activities in the following terms and for the following reasons:

“12.

The Tribunal may not have made findings of fact adequate to support its decision not to award you any points in relation to the activity of managing your toilet needs, and it may not explained its decision that you “would be able to use a toilet” (paragraph 68 of the Tribunal’s written reasons) with adequate clarity. It appears to have inferred this purely from the fact that you were working rather than based on evidence about how you go about managing your toilet needs.

13.

In relation to the activity of dressing and undressing the Tribunal appears to have inferred from your use of the word “sometimes” to describe the frequency with which you are unable to dress yourself independently that this was not “for the majority of the time”. The proper test under regulation 7 is whether you are prevented from carrying out the activity to the required standard (under regulation 4(2A)) on the majority of days in the required period. The mere use of the word “sometimes” may not be sufficient to found a conclusion that the difficulty does not apply on the majority of such days. Further, while the Tribunal appears to have accepted your evidence that it takes you 20-25 minutes to dress yourself, it has not explained how it concluded that you were able to carry out this activity within a reasonable time period, which requires consideration of how long it would take a person who does not suffer from any health condition limiting their ability to carry out that activity to carry out the task.

14.

In terms of moving around, the Tribunal found that you could walk approximately 80 metres (by reference to its estimate of the length of a supermarket aisle) and it accepted your evidence that you walk at a third of the speed of a person whose walking ability is not impaired as a result of any health condition. It may not be adequately clear how the Tribunal reached its finding that you are able to walk for at least 50 metres within a reasonable time period, given the definition of “reasonable time period” in regulation 4(4) as “no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity”.”

The Respondent supports the appeal to the Upper Tribunal and invites the Upper Tribunal to set aside the FtT’s decision and to remit the matter back to the FtT for a fresh hearing.

Neither party seeks an oral hearing or an anonymity order.

Not least given the Respondent’s support for the appeal, I am persuaded that the FtT erred in law for the reasons set out below.

In assessing whether the Appellant satisfied a PIP descriptor, the FtT was required to consider and apply Regulations 4(2A) and 7 of the Social Security (Personal Independence Payment) Regulations 2013 (‘Reg 4(2A)’ ‘Reg 7’).

Reg 4(2A) provides that a person is to be assessed as satisfying a PIP descriptor only if they can do so safely (that is in a manner unlikely to cause harm to the person or any other person, either during or after completion of the activity – Regulation 4(4)(a)), to an acceptable standard, repeatedly (that is as often as might reasonably be expected to be completed – Regulation 4(4)(b)) and within a reasonable period of time (that is taking no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity – Regulation 4(4)(c)).

Reg 7 provides that a person is to be assessed as satisfying a PIP descriptor if they are able to undertake the relevant activity on over 50% of the days in the required period – in other words on the majority of days in the relevant period.

The FtT was also under a duty to make adequate findings of fact to enable it to determine whether the requirements of Reg 4(2A) and Reg 7 were satisfied in respect of relevant descriptors (Benmax v Austin Motor Co Ltd[1955] AC 370 at 373) and to give adequate reasons to explain how relevant findings were made and its conclusions (Re B (Appeal: Lack of Reasons) [2003] FLR 1035 at para [11]).

In her PIP 2 questionnaire the Appellant stated that her medical conditions affected her ability to use the toilet. She stated that she found it difficult to pull her underwear down to go to the toilet and that she “tried” to clean herself after using the toilet.

The Healthcare Professional’s report records that the Appellant reported “widespread pain in all joints, swelling in ankles, feet, knees, hands and wrists and reduced grip in both hands” and that she “gets on and off toilet and cleans herself unaided - uses wet wipes”.

The FtT concluded that the Appellant could manage toilet needs unaided and so awarded nil points. The FtT’s findings and conclusions in respect of Daily Living activity 5 are set out at paragraphs 67 and 68 of the Statement of Reasons (‘SoR’) as follows:

“67.

The appellant claims this descriptor at page 15 with a narrative. She says she finds it difficult to pull her underwear down to go to the toilet, she said that she can clean herself and wash herself. She states in her narrative relating to the bath that she needs help to go into the bath and does have bath handles. From the Tribunal’s observations she was able to walk with a fairly normal gait.

68.

The appellant was working; she would be able to use a toilet. She told the HCP that she gets on and off the toilet, cleans herself unaided, she uses wet wipes with no incontinence. Therefore, the Tribunal found this to be consistent with the overall clinical picture and the appellant’s evidence and were satisfied, that no further points should be awarded in respect of this descriptor.”

In determining that the Appellant could manage toilet needs unaided, the FtT placed weight on the fact that she was working. Indeed, it appears that the FtT may have gone as far as inferring from the fact that the Appellant was working, that she was able to manage her toilet needs. The FtT did not, however, explain why that was or would be the case. One does not automatically follow the other. It is perfectly possible that a person may work but still have difficulty managing toilet needs unaided. If the FtT felt that, in the Appellant’s particular case, her ability to work was relevant to her ability to manage her toilet needs, it ought to have explained why that was the case. It’s failure to do so means that not only did the FtT fail to give adequate reasons to explain how relevant findings were made, but it may also have taken into account and placed weight on a matter which had no bearing on whether the Appellant could manage toilet needs unaided.

Further, in my judgment the failed to properly consider and determine whether the Appellant could manage her toilet needs unaided to an acceptable standard within the meaning of Reg 4(2A).

At paragraph 67 of the SoR, the FtT stated that the Appellant had said in her PIP2 form that “she finds it difficult to pull her underwear down to go to the toilet, she can clean herself and wash herself”. That is not strictly correct. The Appellant had in fact stated, “I just find it difficult to pull my underwear down to go to the toilet I do try to clean myself…”. As the Appellant has claimed that she found it difficult to pull her underwear down and ‘tried’ to clean herself after using the toilet, the FtT ought to have explored and made clear findings as to the extent of any such difficulties, as this was relevant to the determination of whether the Appellant could manage her toilet needs unaided to an acceptable standard withing the meaning of Reg 4(2A). The FtT failed to do so.

In her PIP 2 questionnaire the Appellant stated that her medical conditions affected her ability to dress and undress. She stated that she needed “help with dressing zips clasps buttons socks and all other clothing I try to get elastic waist but even struggle with that bras are hard…”.

In her request for Mandatory Reconsideration the Appellant stated that she needed “support dressing I cannot dress myself without help from my daughter its difficult to do this.”

The Healthcare Professional’s report records that the Appellant reported that she “does top and bottom half herself while sitting. Takes 20-25 minutes due to difficulty doing this herself - tries to wear loose fitting clothes which is easier. Difficulty with fastenings due to reduced grip” and that she experienced 4 bad days a week and that her pain levels were unbearable causing her to cry.

The FtT concluded that the Appellant could dress and undress unaided and so awarded nil points. The FtT’s findings and conclusions in respect of Daily Living activity 6 are set out at paragraphs 69 and 70 of the Statement of Reasons (‘SoR’) as follows:

“69.

The appellant claims this descriptor. She told the HCP that she changes her clothes daily, she does the top and bottom half herself. She takes a little longer due to difficulties doing it herself. She said she tries to wear loose fitting clothes which is easier.

70.

Whilst she had a reduced grip, the Tribunal found that the grip would be adequate. She could grip a steering wheel. Whilst this is not totally conclusive, it is merely supporting evidence. She told the Tribunal in her oral evidence that at the date of decision she could get herself dressed. She was asked to explain in more detail. She said sometimes she can’t put her socks on. This is not for the majority of the time. Therefore, the Tribunal came to the conclusion that no further points should be awarded in respect of this descriptor.”

In my judgment the FtT failed to properly consider and determine whether the Appellant could dress and undress unaided for the majority of days in the required period for the purposes of Reg 7.

The FtT appears to have accepted that as a consequence of her medical conditions, the Appellant was ‘sometimes’ unable to put her on socks on. However, it determined that this was not for the majority of time. In other words, the FtT determined that the Appellant was able to put her socks unaided for the majority of days in the required period for the purposes of Reg 7.

The basis upon which the FtT so determined is unclear. The FtT did not make any findings as to the number of days in any given week, month or other period when the Appellant was able or unable to put her socks on. It appears to have simply taken the Appellant’s use of the word ‘sometimes’ to mean that the Appellant was unable to put her socks on less than a majority of days.

In my judgment, in the context of the present case and the Appellant’s evidence, the mere use of the word ‘sometimes’, without more, was insufficient to lead to such a conclusion. The FtT ought to have explored this issue further and made clear findings as to the number of days in any given week, month or other period when the Appellant was able or unable to put her socks on. Such findings were necessary to enable the FtT to properly consider whether the requirements of Reg 7 were met in respect of the relevant descriptor. Insofar as the FtT did make such findings, it failed to set out them out in the Decision Notice or the SoR and/or give adequate reasons for the same.

Further, in my judgment the failed to properly consider and determine whether the Appellant could dress and undress unaided within a reasonable period of time within the meaning of Reg 4(2A), that is taking no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to dress and undress would normally take to do so.

Reg 4(2A) required the FtT to make findings as to, or at least explain, how long it would take a person without any physical or mental condition to dress and undress and how long it took the Appellant to do so, and then to compare the two.

The FtT appears to have accepted that as a consequence of her medical conditions, it took the Appellant 20 to 25 minutes to get dressed. However, other than state that the Appellant took “a little longer” to get dressed, the FtT did not make any clear findings as to how long it would take a person without a physical or mental condition to dress and undress, did not compare that with the 20-25 minutes it took the Appellant and did not make any express findings as to whether the Appellant took no longer than twice as long as the maximum period that a person without any physical or mental condition would take. Insofar as the FtT did make such findings, it failed to set them out in the Decision Notice or the SoR and/or give adequate reasons for the same.

In her PIP 2 questionnaire the Appellant stated that she was only able to walk less than 20 metres and that “I try not to move far when I am in so much pain…”.

In her request for Mandatory Reconsideration the Appellant stated that walking caused her “significant pain and means I can’t walk at all for the rest of the day.”

The Healthcare Professional’s report records that the Appellant reported that she walks at a very slow place, when attending hospital she walks for 15 minutes and stops 3 times for 5 minutes due to pain, walked when shopping for 30 minutes leaning on the trolley but stopped every two aisles for 10 minutes due to pain, on a good day she can walk 210 metres before stopping for 10 minutes but was unsure if she would be able to repeat the journey and on bad days she can walk 100-150 metres before needing to rest for the remainder of the day to recover from pain and swelling.

The FtT concluded that the Appellant could stand and move more than 50 metres but no more than 200 metres (descriptor 2b) and so awarded 4 points. The FtT’s findings and conclusions in respect of Daily Living activity 6 are set out at paragraphs 81 to 88 of the Statement of Reasons (‘SoR’) as follows

“81.

The appellant claims to be able to walk less than 20 metres… The appellant said that she went to Aldi to do her shopping. She said she stopped doing this about 20 months ago. She was asked the reason why, and she said it became hard for her and she decided to do it online.

82.

…She was asked how long she could walk for on flat level ground out of doors at the date of decision. She said if she walked down two shopping aisles, she would need a rest. It was put to her that that is around 80 metres…

83.

…It was put to the appellant that at the date of the decision she was walking 50 – 200 metres. She indicated to the Tribunal that she can do this but she said she was in pain.

84.

…Just because the appellant says she is limited to 20 metres, it doesn’t mean that that is correct.

85.

She told the HCP that she walks at a slow pace. She walks from her house to her car which is around twenty steps without stopping, she drives to work, and she walks another twenty five steps without stopping. She told the HCP she can walk 200 metres in the Nursery without stopping as required. She said that she went to a hospital appointment she walked fifteen minutes and stopped three times for five minutes due to pain. She said it takes a normal person five minutes to walk that distance.

86.

Therefore, on that basis she would be walking a third of the speed which is around 30 metres a minute. In five minutes on what she told the HCP she would be walking around 150 metres. She told the HCP on a good day she walks 210 metres before stopping for ten minutes.

87.

The Tribunal accepted that the appellant’s condition had deteriorated since the date of decision…

88.

Taking all the evidence into consideration and the overall clinical picture and the fact that the appellant’s condition had deteriorated since the date of decision, the Tribunal came to the conclusion it is more likely than not that she would be able to walk more than 50 – 200 metres. She told the Tribunal that it was pain that caused her to stop. She told the HCP that it was after five minutes she stops. Therefore, it is more likely than not that the HCP’s assertions are correct. Therefore, no further points were awarded in respect of this descriptor.”

In my judgment the failed to properly consider and determine whether the Appellant could stand and move more than 50 metres but no more than 200 metres within a reasonable period of time within the meaning of Reg 4(2A).

The Appellant stated that when she attended at hospital it took her 15 minutes with breaks to walk a distance that would take a ‘normal person’ 5 minutes. The FtT appears to have accept this evidence and indeed noted that on that basis “she would be walking a third of the speed”. That being the case and given that ‘reasonable period of time’ means taking no more thantwice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to walk would normally take to walk the relevant distance, it is not clear how the FtT concluded that the Appellant could walk the relevant distance within a reasonable period of time. By definition, if it took the Appellant three times as long to walk the relevant distance than a person without a physical or mental condition, she could not walk the relevant distance within a reasonable period of time.

Insofar as the FtT did not actually find that the Appellant walked at one third the speed of a person without a physical or mental condition, the FtT failed to make any proper findings as to how long it would take the Appellant to walk the relevant distance. As the Appellant had asserted that she walked at a slow pace and had to take breaks, the FtT ought to have made clear findings as to the time it would take the Appellant to walk the relevant distance, including the number and duration of any breaks, and the time it would take for a person without a physical or mental condition walk the same distance and to then compare the two. It failed to do so.

Further, in my judgment the FtT failed to properly consider and determine whether the Appellant could stand and move more than 50 metres but no more than 200 metres to an acceptable standard within the meaning of Reg 4(2A).

In KL v SSWP (PIP) [2016] UKUT 545 (AAC) the appellant asserted that she experienced pain when walking and could only do so at a slow place. Upper Tribunal Judge Hemmingway held that the FtT had failed to properly consider and apply Reg 4(2A) in the context of Mobility activity 2, and so erred in law, when it failed to “make any finding as to her speed of walking and it did not make any clear finding with respect to pain she would experience when walking which is relevant to her ability to stand and then move to an acceptable standard”.

In TF v SSWP (PIP) [2015] UKUT 661 (AAC) Upper Tribunal Judge Parker also highlighted that the extent to which a person suffers pain when walking is relevant to the issue of whether he is able to walk the relevant distance for the purposes of the Mobility activity 2 ‘to an acceptable standard’. She held that: “[m]atters such as pain, and its severity, and the frequency and nature, including extent, of any rests required by a claimant, are relevant to the question of whether a claimant can complete a mobility activity descriptor ‘to an acceptable standard’”.

As the Appellant had asserted that she experienced pain when walking and this appears to have been accepted by the FtT, the FtT ought to have explored this issue further and made clear findings as to the extent of the pain experienced by the Appellant when walking the relevant distanced and whether that level of pain meant that she could or not walk the relevant distance to an acceptable standard. The FtT failed to do so.

Still further, in my judgment the FtT failed to properly consider and determine whether the Appellant could stand and move more than 50 metres but no more than 200 metres repeatedly within the meaning of Reg 4(2A).

The Appellant had stated that at times after walking she could not walk at all for the rest of day, on a good day she could walk 210 metres but was unsure if she would be able to repeat the journey and that on a bad day she could walk 100 to150 metres before needing to rest for the remainder of the day. That being the case, the FtT ought to have explored this issue further and made clear findings as to whether the Appellant could repeat the relevant journey as often as might reasonably be expected that it should be completed. It failed to do so.

Insofar as the FtT did make any such findings, it failed to set out them out in the Decision Notice or the SoR and/or give adequate reasons for the same.

I am satisfied that the FtT’s failures as set out above amount to material errors of law.

Accordingly, I allow the appeal, set aside the FtT’s decision dated 1 August 2025 (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)) and remit the original appeal for re-hearing before a new FtT subject to the directions above (section 12(2)(b)(i)). As facts need to be found, it is not appropriate for me to re-make the decision on paper.

There will need to be a fresh hearing of the appeal before a new FtT. Although I am setting aside the FtT’s decision dated 6 December 2024, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to an award of PIP (and, if so, which component(s) and at what rate(s) and for what period). That is a matter for the new FtT. The new FtT must review all the relevant evidence and make its own findings accordingly.

In doing so, however, the new FtT will have to focus on the Appellant’s circumstances as they were as at 7 December 2023, and not the position as at the date of the new FtT hearing. This is because the new FtT 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” (section 12(8)(b) of the Social Security Act 1998).