AL v Secretary of State for Work and Pensions (PIP)

The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

The reconsideration must be undertaken in accordance with KK v Secretary of State for Work and Pensions [2015] UKUT 417 (AAC).

In particular, the tribunal must investigate and decide the claimant’s entitlement to a personal independence payment on her claim that was made on 19 December 2022 and refused on 8 March 2023.

In doing so, the tribunal must not take account of circumstances that were not obtaining at that time: see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

The claimant has appealed against the decision of the First-tier Tribunal with the permission of Judge Brunner KC. The Secretary of State’s representative has supported the appeal, saying that there were errors of law in the tribunal’s decision and inviting the Upper Tribunal to send the case back to the tribunal for rehearing. The claimant has agreed. Given that agreement, all I need do is to say why I have set aside the tribunal’s decision and explain what is meant by a rehearing. It is not necessary to set out the history of the case or to analyse the evidence and arguments in detail.

Why I have set the First-tier Tribunal’s decision aside

I have set the tribunal’s decision aside on the grounds emphasised by Judge Brunner and by the Secretary of State’s representative in support of the appeal. In short, the tribunal failed to apply and explain regulations 4(2A) and (4) and 7 of the Social Security (Personal Independence Payment) Regulations 2013 correctly.

I do not need to deal with any other error in point of law that the tribunal may have made. Any that were made will be subsumed by the rehearing.

What will happen at the rehearing

For the benefit of the claimant, this is the effect of the decision in KK to which I have referred in my directions.

The tribunal must follow the directions I have given.

The rehearing will not be limited to the grounds on which I have set aside the tribunal’s decision. The tribunal will consider all aspects of the case, both fact and law, entirely afresh.

Nor will the tribunal be limited to the evidence and submissions that were before the tribunal at the previous hearing. It will decide the case on the basis of the relevant evidence and submissions made at the rehearing.

The tribunal must come to its own conclusions on the issues of both fact and law that it considers. Nothing in my decision or in my reasons for it is an indication of the likely outcome of the rehearing. Nor will the tribunal be bound by any conclusions of fact or law reached by the tribunal in the decision that I have set aside.