FED v The Secretary of State for Work and Pensions

Appeal No. UA-2024-001312-PIP IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER Between: FED Appellant – v – The Secretary of State for Work and Pensions Respondent Before: Upper Tribunal Judge Butler Decided on consideration of the papers Representation: Appellant:Mr A. Wilson, Merseyside Law Centre Respondent:Ms A. Woods, Decision Making and Appeals, DWP On appeal from: Tribunal:First-tier Tribunal (Social Entitlement Chamber) Tribunal Case No:SC068/23/02270 Tribunal:Judge A Jaleel, Mrs M Reed and Dr N Faziani Tribunal Venue:Liverpool Decision Date:10 May 2024 DECISION As the decision of the First-tier Tribunal involved the making of an error of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the First-tier Tribunal for rehearing by a fresh tribunal. DIRECTIONS A. The case is remitted to the First-tier Tribunal for reconsideration at an oral hearing. B. The new Tribunal should not involve any of the panel members previously involved in considering this appeal on 10 May 2024. C. The new Tribunal is directed to determine this appeal on the basis that: (a) The application for mandatory reconsideration made by telephone on 05 August 2023, was made within 13 months of DWP’s supersession decision dated 05 August 2022. It was made in time to constitute an “any ground” application for revision of the decision dated 05 August 2022; (b) The Secretary of State’s mandatory reconsideration notice dated 21 September 2023 amounts to a reconsideration of the decisions it made about FED’s entitlement to PIP on: 15 July 2019, 09 January 2021 and 05 August 2022; (c) FED’s appeal to the First-tier Tribunal dated 12 October 2023 relates to: (i) “any time” revision requests in respect of the entitlement decision dated 15 July 2019, the supersession decision dated 09 January 2021 and the supersession decision dated 05 August 2022, on the basis that DWP had made an official error by failing to apply the Upper Tribunal decision in MMcK v SSWP (PIP) [2016] UKUT 191, upheld in SSWP v MM (PIP) [2019] UKSC 34 when making those decisions; and (ii) a revision request in respect of the supersession decision dated 05 August 2022, made in time to also constitute an “any ground” request for revision and should additionally be treated as a request for that type of revision; (d) When considering the PIP entitlement decisions, the FTT is entitled to do so on a full merits basis, in accordance with paragraph 120(e) of 1) TR and (2) GD v SSWP (PIP/ESA) [2025] UKUT 332 (AAC); and (e) The period of the Tribunal’s jurisdiction is limited to up to and including 24 November 2024, because a later decision has been made awarding FED the enhanced rate of both components of PIP from 25 November 2024 onwards. D. When determining FED’s appeal, the new Tribunal is directed to apply the following decisions in addition to any other decisions it considers relevant: (i) MH v SSWP [2016] UKUT 0531 (AAC); (ii) SSWP v MM [2019] UKSC 34; and (iii) (1) TR and (2) GD v SSWP (PIP/ESA) [2025] UKUT 332 (AAC). E. The new Tribunal must not take account of new circumstances for FED that did not apply at the time of the relevant decisions by the Secretary of State’s decision (15 July 2019, 09 January 2021, and 05 August 2022). Later evidence can be considered as long as it relates to the circumstances at the time of that decision: see R(DLA) 2/01 and R(DLA) 3/01. F. If the parties have any further written evidence to put before the Tribunal, this should be sent to the relevant HMCTS regional tribunal office within one month of the issue of this decision. G. The Tribunal hearing the remitted appeal is not bound in any way by the decision of the previous First-tier Tribunal. H. Copies of this decision, the permission to appeal decision, the decision lifting the stay of the appeal dated 04 December 2025, the submissions on behalf of the Secretary of State (dated 16 December 2025) and the submissions on behalf of FED dated 03 February 2026 shall be added to the bundle to be placed before the First-tier Tribunal hearing the remitted appeal. These Directions may be supplemented by later directions by a tribunal judge, registrar, or case worker, in the Social Entitlement Chamber of the First-tier Tribunal. REASONS FOR DECISION Factual background

1. FED made a claim for personal independence payment (“PIP”) on 23 May 2019. He reported that the medical condition giving rise to his PIP claim was mental health difficulties.

2. The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, asked FED to take part in a face-to-face medical assessment on 11 June 2019. Having received advice from that assessment, on 15 July 2019, DWP decided FED was not entitled to any rate of PIP. Following mandatory reconsideration on 27 July 2019, DWP revised the entitlement decision dated 15 July 2019 and awarded FED 11 points for daily living activities (descriptors 1.d (2), 3.b (1), 4.c (2), 6.c (2), 9.b (2) and 10.b (2)). It did not award FED any points for mobility activities.

3. DWP therefore decided that FED was entitled to the daily living component of PIP from 25 March 2018 to 10 June 2022, at the standard rate. FED did not appeal that decision.

4. DWP generally commences an award review of a PIP award within around one year of the date it is due to end, with a view to deciding whether to supersede the existing award. This is sometimes called a “planned review”. On 09 January 2021, DWP superseded its entitlement decision dated 15 July 2019 to extend the length of FED’s PIP award, so it now ended on 10 March 2023. DWP explained this was because it had suspended PIP award reviews due to the COVID-19 outbreak. Essentially, DWP did not consider it was in a position to start the planned award review process due to the COVID-19 pandemic. It therefore extended FED’s PIP award through supersession, to allow for a planned review to be undertaken at a later date.

5. Although DWP changed the length of the PIP award on 09 January 2021, it did not reconsider or change the individual PIP descriptors it had awarded FED. He therefore remained entitled to the standard rate of the PIP daily living component.

6. In around April 2022, DWP sent FED an AR1 award review form, which he completed on 05 May 2022. FED reported that the effects of his mental health condition remained the same. In the further information box at the end of the form, FED wrote: “There is no change to my mental health issue, don’t think there will ever be. It’s a battle being me every day because of my mental health and the thoughts I battle day in day out (suicidal thoughts) people do try and support me.”.

7. On 05 August 2022, having carried out its planned review of FED’s award, DWP decided to supersede FED’s PIP award by extending it. DWP stated that FED was entitled to the PIP daily living component at the standard rate from 05 August 2022 until 04 August 2025. DWP did not change the individual descriptors it awarded FED, both for daily living activities and mobility ones.

8. On 21 September 2023, DWP issued a mandatory reconsideration notice (“MRN”).

9. On page 1 of the MRN, DWP wrote: “I have looked at your PIP and decided: Your claim was unaffected by the MM tribunal judgment. • I can still award you the standard rat eof £68.10 a week to help with your daily living needs. You can get this from 05 August 2022 to 04 August 2025. • At this time I cannot award you PIP for help with mobility needs from 05 August 2022.”

10. Page 3 of the MRN stated that FED had called on 08 August 2023 to ask DWP to look at his claim again with regards to the MM v DWP Tribunal judgment. This was a reference to the decision of the Supreme Court in SSWP v MM [2019] UKSC 34 (“MM”). DWP stated: “ “The claim we will be looking at is from 25 March 2019, your current claim would have already considered the above tribunal, this was rolled out to the business on 18/9/20”.

11. The MRN then referred to how FED presented at the medical assessment on 11 June 2019 and its evaluation of his presentation. The MRN stated DWP acknowledged FED had some difficulties mixing with other people at the time of his assessment, but there was no evidence he required social support where he would require an experienced person to assist him while mixing with others, which DWP stated was consistent with the evidence provided.

12. On 12 October 2023, FED appealed to the First-tier Tribunal. In its response to the appeal, DWP wrote that the date of the outcome decision was 09/10/2021, and it was reconsidered on 21 September 2023. DWP wrote once again, that the decision under appeal was dated 09 October 2021, on page C of the Response. It also wrote: “The decision noted below were [sic] reviewed on 09/10/2021 and reconsidered on 21/09/23 following the Upper Tribunal decision relating to MM v SSWP (PIP) [2016] UKUT 191 (AAC) on 06 April 2016 with regards to engaging with others (CM to include UT decision(s) considered under LEAP”. DWP also stated that the findings in relation to that decision had been taken into consideration for the decision dated 05 August 2022. It staged the tribunal was respectfully advised the period it was now considering was up to 04 August 2022, the day before the effective date of the new decision.

13. While DWP’s response referred to DWP having made a decision dated 09 October 2021, there is no decision in the appeal bundle date 09 October 2021. The Schedule of events at page B of DWP’s response to the appeal listed the supersession decision dated 09 January 2021 but no other decision being made about FED in 2021. I am satisfied the reference to the decision being made on 09 October 2021 was a typing error by DWP and should have referred to the decision dated 09 January 2021.

14. FED’s appeal was adjourned by an FTT on 22 March 2024. Although it had been listed for determination on the papers, the FTT Judge explained that it was a LEAP appeal and the tribunal had information it wanted to request before a decision could be made. The adjournment notice directed DWP to confirm if the issue of planning and following a journey and the case of MH v SSWP (PIP) [2016] UKUT 531 had been considered in relation to FED and if so, to provide the paperwork and decision in relation to it. In the event that DWP had not considered MH, the FTT directed DWP to provide a supplemental submission in relation to its application to FED.

15. On 12 April 2024, DWP provided a supplemental submission to the FTT. This stated that FED had not been selected for MH because his claim was submitted after the MH tribunal judgment was implemented in law and business as usual process. The submission stated that the decision on the award was made on 27 September 2019, no reconsideration of this decision was ever requested, and FED was now significantly out of time for this to be looked at under business as usual.

16. The submission stated that due to the fact no reconsideration was requested, FED did not have any rights to appeal. The submission went on to state that there was no evidence to suggest an error of law regarding planning and following journeys. The submission asked for the appeal to be progressed under the MM tribunal judgment change in law for which FED had appeal rights.

17. Pausing here for a second, it was incorrect for DWP’s submission to state that the decision on the award was made on 27 September 2019 and FED had not requested reconsideration of the decision. The decision on the award was in fact the 15 July 2019 decision, as revised on 27 September 2019 at mandatory reconsideration stage (which FED had requested).

18. FED’s appeal was determined on the papers on 10 May 2024. The First-tier Tribunal (“FTT”) issued a Decision Notice stating it confirmed DWP’s decision dated 09 October 2022. The Decision Notice stated FED was entitled to the daily living component of PIP at the standard rate from 25 March 2019 to 04 August 2022. The Decision Notice stated in the part of paragraph 6: “In coming to its decision, the Tribunal took account of the MM v DWP 2016 UKUT 191 judgment and agreed with the outcome reached by the Respondent. The Tribunal also took account of the Respondent’s submission regarding the applicability of MH v SSWP (PIP) [2016] UKUT 531 to the decision under appeal. It agreed with the outcome of the Respondent in this regard.”

19. The FTT issued a Statement of Reasons for its decision on 13 June 2024. On 12 August 2024, the FTT issued a decision (dated 22 July 2024) refusing FED permission to appeal to the Upper Tribunal.

20. On 05 September 2024, FED applied to the Upper Tribunal for permission to appeal against the FTT’s decision. Permission to appeal

21. In a decision dated 19 December 2024, I granted FED permission to appeal against the FTT’s decision on the basis it was arguable the FTT had made one or more of the following errors of law: (a) Determining the appeal on the papers: The FTT had referred to the substance of rules 2 and 27 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008. Those rules deal with determining an appeal on the papers. It was arguable the FTT had failed to provide adequate reasons for why it considered it could fairly and justly determine FED’s appeal on the papers; (b) Misdirection in law / adequacy of facts and reasons for decision about PIP activity 9 (Engaging with other people face to face): As FED’s representative had argued, the Supreme Court’s decision in MM had confirmed prompting can constitute social support where, in order to be effective, it needs to be given by someone trained or experienced in assisting people to engage socially. The Supreme Court also confirmed this category can include family members who are experienced in assisting a claimant. In its mandatory reconsideration decision dated 27 September 2019, DWP accepted FED required prompting to engage with other people. The FTT had not made findings of fact about the prompting FED received, including when, what it comprised, who provided it and why that form of prompting worked. Nor had the FTT explained why the prompting DWP accepted FED received did not satisfy the requirements in MM to amount to social support; (c) Misdirection in law / adequacy of reasons for FTT’s decision that FED’s appeal did not engage MH v SSWP [2016] UKUT 0531 (AAC) (“MH”): paragraph 32 of the FTT’s decision did not appear to be consistent with the decision of Upper Tribunal Judge Ovey in DB v SSWP (PIP) [2023] UKUT 5 (AAC) (“DB”). It was unclear from paragraph 32 of the FTT’s Statement of Reasons whether it had considered if FED had requested mandatory reconsideration of the entitlement decision dated 15 July 2019 on the basis of official error (whether in relation to MH or MM – and if the latter, whether this allowed the FTT to also look at official error in relation to MH). Furthermore, paragraph 32 of the FTT’s Statement of Reasons, which stated there was no right of appeal, and the FTT’s reasoning for that statement, might indicate it failed to address and apply the law set out in DB and therefore misdirected itself in law. Why this appeal was stayed for a period of time

22. On 18 February 2025, a representative for the Secretary of State requested a stay of FED’s appeal on the basis that in (1) TR and (2) GD v SSWP (UA-2024-000383-PIP and UA-2024-000293-ESA) (“TR”), a three-judge panel of the Upper Tribunal, was going to decide appeals raising a similar issue to FED’s appeal. This concerned how to deal with applications to revise benefit entitlement decisions made more than 13 months after the original decision.

23. On 06 March 2025, I directed a stay of FED’s appeal until TR had been determined. On 04 December 2025, I lifted the stay, because TR had been decided in October 2025 and subsequently published. The Secretary of State’s submissions

24. Ms Woods is the Secretary of State’s representative in these proceedings. She has provided a written submission dated 16 December 2025 which supports the appeal to the extent set out in paragraphs 8 to 11 of that document. Ms Woods states that if her submission is accepted in its entirety, the Secretary of State consents to a decision without reasons under rule 40(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

25. Ms Woods refers to the fact that in the Secretary of State’s decision dated 21 September 2023, the DWP decision-maker stated: “The claim we will be looking at is from 25/03/19, your current claim would have already considered the above tribunal, this was rolled out to the business on 18 September 2020”.

26. Ms Wood submits this statement can be interpreted to include a reconsideration of the supersession decision made on 09 January 2021 as well as the original (entitlement) decision of 25 March 2019. Ms Wood submits that the decision dated 09 January 2021 superseded the original decision on the ground of a change of circumstances as FED’s needs had persisted for a longer period than originally determined. Ms Wood submits this supersession decision dated 09 January 2021 extended the PIP award until a full review could be carried out and so the decision in MM would not have been considered.

27. Ms Woods distinguishes, however, DWP’s supersession decision dated 05 August 2022, which she states would have been considered MM and was made following a full review (citing page C of the appeal response). Ms Woods states that as a result FED cannot rely solely on the non-application of MM as a ground for official error.

28. Ms Woods submits that in paragraph 119 of TR, the Upper Tribunal endorsed a list of applications that would not constitute valid “any time” applications for revision (set out in paragraph 115 of TR). Ms woods submits that the implication of the list is that an application for revision must be “particular” as to the mistake purportedly made by the SSWP. She states that paragraph 118 of TR confirms the mistake must be capable in principle of constituting an official error. Ms Woods submits that this means it must point to a particular, discernible aspect of the decision-maker’s reasoning that could In principle be “a clear and obvious error of act or law made by some officer on the facts disclosed to him, or which he had reason to believe were relevant” (paragraph 40 of TR).

29. At paragraph 10 of her submissions, Ms Woods submits that FED’s application for revision of the 05 August 2022 decision (Addition J of bundle, pages 5 and 8) failed to satisfy both of those tests. She states the application is essentially a disagreement with the rate of the award that rests on an alternative analysis of the weight, credibility and balance of the available evidence. Ms Woods submits that as such, it was in substance an “any ground” application and this being the position, the decision-maker was right to regard it as not being a valid application for an “any time” MR (mandatory reconsideration) and therefore refuse to give a decision on it.

30. At paragraph 11 of her submissions, Ms Woods submits that the FTT erred in law by limiting its consideration to the application of MM (see paragraphs 21 and 32 of the Statement of Reasons). Ms Woods submits that the pre-condition for the FTT’s jurisdiction set out in paragraph 121.a of TR is satisfied in FED’s case to the extent that MM (meaning the Upper Tribunal decision in that appeal dated 06 April 2016) was not considered when the original entitlement decision was made on 15 July 2019 and when the supersession decision was made on 09 January 2021.

31. Ms Woods submits that in accordance with TR, the FTT’s jurisdiction was on a full merits basis (paragraph 121.e of TR). She states that for the supersession decision dated 09 January 2021, the FTT’s jurisdiction was limited to considering if there were grounds to supersede and the consequences of that (paragraph 121.e of TR). Ms Woods submits that when carrying out a reconsideration of FED’s needs, the FTT could, and should, have done so in the light of any new relevant factual matters the evidence brought to light and any case law that section 27 of the Social Security Act 1998 does not prevent it applying. Ms Woods submits, however, that this jurisdiction would be limited to the period from 25 March 2019 to 04 August 2022.

32. Ms Woods does not address the other two grounds on which I gave FED permission to appeal (summarised at paragraph 19(a) and (b) above). Submissions made on behalf of FED

33. Mr Wilson disagrees with Ms Woods’ submission about whether the First-tier Tribunal has jurisdiction in relation to the period covered by the supersession decision dated 05 August 2022. He argues that TR may not have the meaning Ms Woods has given to it.

34. Mr Wilson explains that FED made a new claim for PIP on 25 November 2024, which was the subject of a separate FTT appeal. The outcome was that FED was awarded the enhanced rate of the PIP daily living component and mobility components for the period from 25 November 2024 to 24 November 2029. Mr Wilson points out that should the appeal be remitted to a new First-tier Tribunal any decision would concern the period only up to the date of FED’s new PIP claim on 25 November 2024. Why there was no oral hearing of this appeal

35. Neither party requested an oral hearing of the appeal. I took these preferences into account and considered the appeal file. I decided the interests of justice did not require an oral hearing. The parties agree there was at least one material error of law by the FTT. I therefore determined the appeal on the papers. It was proportionate to do so. My decision

36. At the permission stage, I only needed to be persuaded that it was arguable with a realistic (as opposed to fanciful) prospect of success that the FTT had made an error of law in a way that was material.

37. At this substantive stage, I need to be satisfied on the balance of probabilities that the FTT did make an error or errors of law that were material.

38. I am satisfied, on the balance of probabilities, that the FTT made material errors of law in relation to the appeal grounds set out at paragraph 19(b) and (c) above.

39. In terms of paragraph 19(b), the FTT has not addressed what kind of prompting FED required and received, and whom he needed to provide it in order to carry out PIP activity 9 (including within the meaning and application of regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013). The FTT stated FED required prompting in the final sentence of paragraph

28. However, it has made inadequate factual findings about the nature of that prompting and who was reasonably required to give it to FED, to sustain its decision that he should only score descriptor 9.b rather than a higher scoring descriptor. The FTT also failed to provide adequate reasons to support this part of its decision.

40. These are material errors of law because had the FTT awarded FED descriptor 9.c instead of 9.6, he would have scored 13 points for daily living activities instead of 11, meeting the threshold for the enhanced rate of the daily living component.

41. In terms of paragraph 19(c), I agree with Ms Woods’s submissions that FED’s request on 08 August 2023 for DWP to look again at his PIP entitlement in light of MM, constituted a request for a revision where the decisions arose from official error, and was made on an “any time” basis. As confirmed subsequently in TR, the FTT’s jurisdiction was on a full merits and de novo basis where a valid revision request had been made based on official error.

42. The FTT therefore should have considered FED’s arguments about planning and following a journey when determining his appeal, as well as considering his argument about MM in relation to engaging with other people. The FTT made an error of law in deciding that it could not look at the PIP activity of planning and following a journey. In my assessment, the FTT’s failure to clearly consider and engage with the decision in DB, which applied at the time it determined FED’s appeal, also represented a misdirection in law and a failure to provide adequate reasons to support its decision that it could not consider planning and following a journey as part of FED’s appeal. Both are material errors of law.

43. As explained below, however, I do not agree that this material error of law only related to the FTT’s consideration of DWP’s decisions dated 15 July 2019 and 09 January 2021. I have decided it also included the decision dated 05 August 2022, which the FTT did not consider at all. It is, however, sufficient that the FTT’s error extended to the 15 Jyl 2019 and 09 January 2021 decisions. Does the FTT’s jurisdiction include the 05 August 2022 supersession decision?

44. I have decided the FTT’s jurisdiction in respect of FED’s appeal does include the supersession decision dated 05 August 2022. I do not agree with the arguments in paragraphs 8 to 11 of Ms Woods’ submissions that submit otherwise.

45. The MRN dated 21 September 2023 states FED telephoned DWP on 08 August 2023, asking it to reconsider the earlier awards made (page 182 of FTT bundle, emphasis added). This plural wording would, in principle, include the award made by the supersession decision dated 05 August 2022. The document at Addition J, page 8 of the FTT bundle confirms that on 14 August 2023, FED called DWP with the help of his partner and she asked about the law changes when it came to social support, which could affect the claim going back to 2019.

46. Ms Woods has cited what DWP wrote on page 4 of the MRN as confirmation that it considered the earlier decisions dated 15 July 2019 and 09 January 2021. I agree the wording involved indicates DWP considered those decisions. However, the MRN also needs to be read in the context of the wording on page

1. This indicates DWP considered the MM judgment and having done so, decided FED’s PIP claim was unaffected by it. Immediately below that, the wording about the PIP award between 2022 and 2025, confirms DWP decided not to change its supersession decision dated 05 August 2022 awarding FED the standard rate of the daily living component for that period of time.

47. In my assessment, the only reason for DWP to set out the terms of its decision dated 05 August 2022 in the MRN in this way, was to confirm it was not changing the award made by that decision. The only reason why DWP would do that would be because it had considered the 05 August 2022 supersession decision and decided not to change it.

48. I therefore do not agree with Ms Woods’ argument at paragraph 9 of her submissions that the mandatory reconsideration notice can only be read as relating to the earlier DWP decisions dated 15 July 2019 and 09 January 2021. That interpretation is inconsistent with what is stated on page 1 of the MRN.

49. I also do not agree with Ms Woods’ argument that the fact DWP decision makers were asked to apply the decision in MM by 2022 means that it would have been applied in FED’s case and that fact precludes FED from arguing there was official error in relation to the 05 August 2022 supersession decision.

50. I accept that decisions made during the time period when DWP’s policy was not to apply MM are clearly in scope to consider revision for official error. The official error in question for them will be that DWP failed, as a matter of policy, to apply a binding Upper Tribunal decision. This does not, however, mean that decisions DWP made after that time are out of scope for considering official error based on whether it applied MM (and correctly) in making a decision. This would, in my assessment, limit official error so that it applies more narrowly than the meaning given to it in paragraph 40 of TR (see paragraph 28 above). There is no proper basis for doing so.

51. When awarding FED descriptor 9.b in 2019, DWP relied on the supplemental advice in the PA6 document dated 25 September 2019 (page 132 of FTT bundle). This advice referred to a documented history of poor mental health, including sectioning and suicidal thoughts, and that it was ongoing. FED was being treated with an antipsychotic, which the healthcare professional linked to his mental health remaining unstable and current medication being ineffective for his symptoms. The healthcare professional described FED struggling to mix and what his presentation was like at the assessment in June 2019. The healthcare professional recommended descriptor 9.b for requiring prompting to engage with others. No analysis was made about whom FED needed to prompt him. This was required by the terms of MM, but DWP’s policy was not to apply the effect of that decision at that time.

52. In his AR1 award review form dated 05 May 2022, FED described his medication not helping, battling with his thoughts and mind and that his mental health issue had not changed (pages 155 and 161 of FTT bundle). It appears DWP did not invite FED to take part in a medical assessment in the planned review, despite the last assessment having been carried out around 3 years earlier. The supersession decision dated 05 August 2022 refers to FED saying he had difficulties engaging with other people face to face and DWP agreed he had difficulties. The supersession decision refers to FED’s needs having not changed.

53. There is nothing in the reasoning for the 05 August 2022 decision on page 174 of the FTT bundle to indicate the DWP decision maker considered whether, despite their assessment that FED’s needs had not changed, the way in which those needs fell to be assessed had changed, because of MM.

54. Taking all these matters into account, there is no clear basis for concluding that FED could not challenge DWP’s 05 August 2022 decision on the basis of official error.

55. While Ms Woods argues at paragraph 10 of her submissions that FED’s application to revise the 05 August 2022 decision fails to meet the test described in TR, I note this argument is based on what Ms Woods considers DWP would have done. She is not arguing that the limitation is based on what FED said in his request. His request, understood in the context of the telephone call dated 14 August 2023 referring to the change in the law about social support, clearly alleged official error in relation to all his PIP entitlement decisions, including the 05 August 2022 one.

56. In any event, I do not agree that the only revision ground FED could raise against the 05 August 2022 decision was an “any time” one. FED made his mandatory reconsideration request within 13 months of the 05 August 2022 supersession decision. He therefore requested mandatory reconsideration in time for it to be treated as an “any ground” revision request in relation to the 05 August 2022 decision. While it would have been a late request in terms of regulation 5 of the UC etc. (Decisions and Appeals) Regulations 2013, regulation 6 allows time to be extended. FED was clearly vulnerable due to his mental health, providing both special circumstances and making it reasonable for time to be extended. We do not have a record of the actual telephone call on 08 August 2023, but given his circumstances, had DWP insisted on FED requesting a time extension, it could have asked him to do so.

57. For completeness, I have considered what DWP wrote in its response to FED’s appeal, including that it stated MM was taken into account for the decision dated 05 August 2022 and the only period the FTT could consider was up to 04 August 2022. Those statements were incorrect legally. As explained above, they were also inconsistent with what the wording of the MRN dated 21 September 2023, which I am satisfied confirms DWP considered the PIP award made by its 05 August 2022 decision and decided not to change it.

58. Taking the above matters into account, I have decided that FED’s appeal to the First-tier Tribunal dated 12 October 2023 relates to: (a) “any time” revision requests he made validly against the entitlement decision dated 15 July 2019 and the supersession decisions dated 09 January 2021 and 05 August 2022, on the basis that DWP had made an official error by failing to apply the decision in SSWP v MM (PIP) [2019] UKSC 34 when deciding FED’s entitlement to PIP; and (b) in relation to the supersession decision dated 05 August 2022, a mandatory reconsideration request also made in time to constitute an “any ground” request for revision. The request to revise the 05 August 2022 decision should therefore also be treated as that type of revision request.

59. In consequence, the First-tier Tribunal’s jurisdiction for FED’s appeal includes the period from 05 August 2022 to 24 November 2024 (curtailed by the new PIP award made by a subsequent First-tier Tribunal). Conclusion, including disposal

60. Having decided the FTT’s decision involved material errors of law, it is appropriate to exercise my discretion to set aside the Tribunal’s decision dated 15 May 2024 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act provides that I must either remit the case to the First-tier Tribunal with directions for their reconsideration or remake the decision.

61. Both parties invite me to remit this appeal to the First-tier Tribunal for a new decision to be made about FED’s appeal. I agree. In the circumstances, it is necessary for further facts to be found. The First-tier Tribunal is best placed to evaluate the evidence, including using its medical and disability expertise, and to make appropriate findings of fact.

62. I have, however, decided to remit the appeal with specific directions about the basis on which the FTT is to determine it. The next FTT that determines FED’s appeal must do so in accordance with those directions. They are set out at “C” of the directions set out on pages 1 to 3 of this decision.

63. I therefore remit FED’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about the correct amount of his PIP entitlement in relation to the effective dates covered by DWP’s decisions dated 15 July 2019, 09 January 2021, and 05 August 2022. The period of jurisdiction is, however, limited to ending on 24 November 2024 because of the subsequent First-tier Tribunal decision about FED’s entitlement to PIP from 25 November 2024 onwards.

64. Although I have set aside the FTT’s decision dated 10 May 2024, I am not making any findings, or expressing any view, about the correct rate of FED’s PIP entitlement. The next Tribunal will need to hear evidence, make its own findings of fact, and provide its reasoning for the decision it reaches. Judith Butler Judge of the Upper Tribunal Authorised by the Judge for issue: 01 May 2026