FW v The Secretary of State for Work and Pensions

This appeal succeeds for the primary reason identified by the District Tribunal Judge when granting permission to appeal, as also encapsulated in Ground 1 on the notice of appeal.

As noted above, a previous FTT had made an award of the standard rate of the PIP daily living component. The present FTT’s explanation as to why the outcomes were different was rudimentary at best with clues scattered around the decision notice and statement of reasons. In its decision notice, there is a sentence to the effect that “Since his last award for DL [daily living] PIP, Mr W has clearly improved regarding preparing a meal and mixing with other people.” The statement of reasons records the fact of the previous award (at paragraph [6]), but otherwise there is little if any further explanation. There is a single comment in paragraph [14] to the effect that “He is now better as regards DL1 [preparing food] which he safely manages compared to his earlier PIP award of 1c”. The statement of reasons records that descriptors 9b and 10b apply, but without any further explanation as to why that is so. In particular, there is no clear nor indeed any explanation in the statement of reasons or the decision notice as to why descriptor 9c (4 points) applied previously but only descriptor 9b (2 points) now.

Assuming for the present that the Appellant’s claim for PIP was a new claim, made shortly after the expiry of the previous award, rather than a renewal claim, the principle set out in R(M) 1/96 still applies (see e.g. AB v SSWP (DLA) [2015] UKUT 89 (AAC) at paragraph 29). In essence the point in R(M) 1/96 is that a claimant should understand, from the reasons given, why an appeal has failed and, as a part of that, is entitled to know why a tribunal is departing from a previous award.

Whether reasons are adequate in the light of the guidance set out in R(M) 1/96 is ultimately a judgement call. I am inclined to agree with the District Tribunal Judge in this case “that more is required if Mr W is to understand why he was made an award on one occasion but not on another.” As noted above, there are clues buried in the FTT’s decision notice and the statement of reasons, but no explicit explanation of why the outcome differed from the previous tribunal award. The District Tribunal Judge was evidently at a bit of a loss. After comparing the decision notice and the statement of reasons I was able to work out that it was the absence of any points for preparing food this time around that was the decisive factor. However, the test for adequacy of reasons does not benchmark against the informed judicial reader. It is a test directed at the parties and whether they reasonably understand why they have won or lost, as the case may be. In the circumstances of this case a short explanatory paragraph towards the end of the statement of reasons would probably have sufficed. As it was, the adequacy of reasons threshold was not met and so the appeal succeeds.

Having found that the FTT’s decision involves an error of law on the basis of Ground 1 and the renewal point, it is not necessary to address the Appellant’s remaining three grounds of appeal. Whether they are made out or not will make no difference to the outcome of the appeal, which succeeds in any event. As Lord Roskill once observed, albeit in a rather different judicial context:

“The Court of Appeal appear to have taken the view that the plaintiffs were entitled of right to have their case tried to conclusion in such manner as they thought fit and if necessary after all the evidence on both sides had been adduced. With great respect, like my noble and learned friend, I emphatically disagree. In the Commercial Court and indeed in any trial court it is the trial judge who has control of the proceedings. It is part of his duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. Litigants are not entitled to the uncontrolled use of a trial judge's time. Other litigants await their turn. Litigants are only entitled to so much of the trial judge's time as is necessary for the proper determination of the relevant issues”(Ashmore v Corporation of Lloyd’s [1992] 1 WLR 446 at 448G-H).

The relevant issue in this case is whether the FTT’s decision involves a material error of law, Having decided that it does, the remaining three grounds of appeal do not need to be determined. In addition, I make the following observations on the Appellant’s points made by way of reply under rule 40 (see paragraph 14 above).

As regards point (1), it would be disproportionate and not in keeping with the overriding objective to devote further scarce judicial resource to deciding the remaining grounds of appeal for the reasons explained above.

Point (2) is that the case is said to bring “an opportunity to the Upper Tribunal to provide a guidance on cases where disabled applicant/claimant whose subsequent application for PIP is refused where there has been no change to their disability vis-à-vis its impact on their day-to-day life”. As is evident from the discussion above, there is no need for further such guidance at this level.

With reference to point (3), the change in medication, this was a development which post-dated the decision under appeal and so had to be disregarded, unless it cast light on the position as at the date of the DWP’s original decision (see Social Security Act 1998, section 12(8)(b) and Social Security Commissioner’s reported decisions R(DLA) 2/01 and R(DLA) 3/01). This is a classic issue of fact for the FTT to resolve.

Points (4) and (5) concern the lack of assistance experienced by the Appellant at FTT level and the fact that legal aid is not available at the FTT. There are two responses that may be made. First, the FTT’s inquisitorial ethos goes some way to ameliorating the lack of representation encountered before that tribunal. Second, and given where the Appellant lives, representation may in fact be available to assist both before and potentially at the FTT re-hearing (e.g. from Citizens Advice or Bristol Law Centre).

In conclusion, I am therefore satisfied that the First-tier Tribunal erred in law for the reason set out above. I accordingly allow the Appellant’s appeal to the Upper Tribunal, set aside (or cancel) the Tribunal’s decision and remit (or send back) the original appeal for re-hearing to a new FTT, which must make a fresh decision. I formally find that the FTT’s decision involves an error of law as outlined above.

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 claimant 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 at March 2020, and not the position as at the date of the new hearing, which will obviously and regrettably be more than 2½ 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 original decision by the Secretary of State, which was appealed to the FTT, was taken on 19 March 2020.

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 of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)). My decision is also as set out above.