JS v Secretary of State for Work and Pensions

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 18 March 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 17 May 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.

The appellant appeals against the First-tier Tribunal’s decision of 18 March 2024 allowing only in part the appellant’s appeal against the decision of the Secretary of State of 17 May 2023 that the appellant was entitled (only) to the standard rate mobility component of Personal Independence Payment (PIP) under Part 4 of the Welfare Reform Act 2012 (WRA 2012) and The Social Security (Personal Independence Payment) Regulations 2013 (SI 2013/377) (the PIP Regulations).

The Tribunal awarded the appellant seven points on the daily living activities 3b, 4c, 6c and 8b and ten points on mobility activity 1d.

The First-tier Tribunal’s Statement of Reasons (SoR) was issued on 9 August 2024 and permission to appeal was refused by the First-tier Tribunal in a decision issued on 9 October 2024. The appellant filed the notice of appeal to the Upper Tribunal on 11 November 2024 and I granted limited permission to appeal in a decision issued on 23 December 2024.

The appeal is supported by the Secretary of State and both parties are content for me to issue a decision on the papers without a hearing. I am also satisfied that it is appropriate and in accordance with the overriding objective for me to take that course in this case, given the narrow scope of the appeal and the agreement between the parties.

The Upper Tribunal’s jurisdiction under s 11 of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) is limited to considering whether there are any points of law arising from a decision made by the First-tier Tribunal.

An appeal will only be allowed where there is a material error of law in the First-tier Tribunal’s decision.

Errors of law include misunderstanding or misapplying the law, taking into account irrelevant factors or failing to take into account relevant factors, procedural unfairness or failing to give adequate reasons for a decision.

An error of fact is not an error of law unless the First-tier Tribunal’s conclusion on the facts is perverse. That is a high threshold: it means that the conclusion must be irrational or wholly unsupported by the evidence. An appeal to the Upper Tribunal is not an opportunity to re-argue the case on its merits.

These principles are set out in many cases, including R (Iran) v SSHD [2005] EWCA Civ 982 at [9]-[11] and R (Wasif) v Secretary of State for the Home Department [2016] EWCA Civ 82; [2016] 1 WLR 2793 at [13].

In scrutinising the judgment of a First-tier Tribunal, the Upper Tribunal is required to read the judgment fairly and as a whole, remembering that the First-tier Tribunal is not required to express every step of its reasoning or to refer to all the evidence, but only to set out sufficient reasons to enable the parties to see why they have lost or won and that no error of law has been made: cf DPP Law Ltd v Greenberg [2021] EWCA Civ 672 at [57]. That case also makes the point (at [58]) that where the First-tier Tribunal has correctly stated the law, the Upper Tribunal should be slow to conclude that it has misapplied it.

The First-tier Tribunal is prohibited from taking 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) and evidence post-dating the decision will only be taken into account if it casts light on the circumstances as they stood at the time: cf SW v SSWP [2012] UKUT 76 (AAC).

In this case, I granted permission because I considered it arguable that the First-tier Tribunal erred in law in relation to its consideration of Daily Living Activity 2. The Tribunal awarded no points for this activity. The appellant’s case was that she required ‘prompting’ (4 points). At this final decision stage, I now have to be satisfied to the civil standard that the Tribunal has indeed made such an error of law. I am so satisfied for the following reasons. The error is material as the appellant only needed one more point to qualify for the standard rate of the daily living component.

In TK v SSWP (PIP) [2020] UKUT 22 (AAC) Judge Markus KC gave guidance as follows on Activity 2:

21.The meaning of “take nutrition” in activity 2 was considered by Upper Tribunal Judge Wright in MM and BJ v Secretary of State for Work and Pensions (PIP) [2016] UKUT 490 (AAC), [2017] AACR 17. He decided that, in the light of the TK v Secretary of State for Work and Pensions (PIP) [2020] UKUT 22 (AAC) CPIP/455/2017 10 statutory definition, the words were focussed on the act of eating and drinking and not on the nutritious qualify of what was being eaten or drunk. It followed that the requirement in regulation 4(2A) to be able to perform the activity to an “acceptable standard” did not call for assessment of the nutritious quality of the food. It was the act of eating and drinking which the claimant had to be capable of doing to an acceptable standard. Judge Wright found that a need for prompting to eat sensibly and nutritiously did not satisfy descriptor 2d.

22.The present case is factually different from those considered by Judge Wright. The difficulties raised by TK were not about the nutritious quality of the food that he ate. He claimed that, as a result of his medical condition, he required prompting to eat a sufficient quantity of food to satisfy his calorific requirements. Without the prompting he would stop the activity of eating before he had consumed enough. In addition, or alternatively, he would not eat sufficiently frequently to satisfy his needs. Taking nutrition comprises cutting food, conveying it to the mouth, chewing and swallowing it. Those actions are of necessity performed repeatedly. At each meal they are repeated until the meal is complete. A person will eat a number of meals and/or snacks during the day in order to eat sufficient. This is not a matter of judging the nutritional quality of what is consumed; it is a description of the essence of taking nutrition. To take an extreme example, a person who is able to complete the task only once cannot be said to be capable of taking nutrition.

23.Regulation 4(2A) requires a person to be able to perform an activity “repeatedly” , which means “as often as the activity being assessed is reasonably required to be completed”. That definition does not import an objective test of how often an activity needs to be performed: PM v Secretary of State for Work and Pensions (PIP) [2017] UKUT 0154 (AAC) at paragraph 20. Different people need to eat different amounts, but as a minimum a person must be able to take sufficient food to meet their needs. It is a reasonable requirement that they are able to repeat the action of taking nutrition often enough to do so.

24.The DWP’s PIP Assessment Guide states as follows in relation to descriptor 2d: “Prompting’ means reminding, encouraging or explaining by another person. Applies to claimants who need to be reminded to eat (for example, due to a cognitive impairment or severe depression), or who need prompting about portion size. Prompting regarding portion size should be directly linked to a diagnosed condition such as Prader Willi syndrome or anorexia.”

25.

Of course the Guide is not a statement of the law and in any event it does not provide any legal analysis underlying this rather bald proposition. However, I note that it is consistent with my analysis above.

The Secretary of State in response to this appeal submits as follows:-

In the light of Judge Markus’s guidance in TK, and the Secretary of State’s submissions, I am satisfied that the First-tier Tribunal has failed to make adequate findings of fact as to the prompting that the appellant says she requires in order to eat. It has also failed to take into account and/or to make adequate findings about the relevant evidence as to the appellant’s spontaneous vomiting. The Tribunal has further erred by leaving out of account the appellant’s polycystic ovary syndrome and failing to make findings as to whether that could account for the appellant’s weight gain, so that the Tribunal should not have regarded the fact that the appellant was gaining weight as determinative of her ability to take nutrition.