DC v The Secretary of State for Work and Pensions (UC)

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 24 September 2024. C. The new Tribunal must not take account of circumstances that did not apply at the time of the Secretary of State’s decision dated 20 February 2024. Later evidence can be considered if it relates to the circumstances at the time of that decision: see R(DLA) 2/01 and R(DLA) 3/01. D. If the parties have any further written evidence to put before the tribunal, they should send this to the relevant HMCTS regional tribunal office within six weeks of the issue of this decision. E. The tribunal hearing the remitted appeal is not bound in any way by the decision of the previous First-tier Tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome from the previous tribunal. F. Copies of this decision, the permission to appeal decision, and the submissions on behalf of the Secretary of State (dated 23 April 2025) 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. DC made a claim for universal credit (UC) on 04 January 2023 and disclosed that her condition of osteoarthritis restricted her ability to work. DC subsequently declared she also suffered from low mood and anxiety. The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, accepted this declaration plus medical evidence (a fit note) as an application by DC for the Limited Capability for Work Related Activity (LCWRA) element to be included in her UC award.

2. DC underwent a medical examination and on 03 August 2023, DWP decided she did not have, and could not be treated as having limited capability for work. DC did not ask for a mandatory reconsideration of that decision.

3. On 19 November 2023, DC disclosed a change in circumstances, namely that her conditions had deteriorated. She referred to referrals to physiotherapy and podiatry that occurred since DWP’s decision. DC provided another fit note in support of her claim. DWP treated this as a request to supersede its decision of 03 August 2023.

4. DC completed a new UC50 questionnaire on 11 December 2023. She took part in a video medical examination with a healthcare professional on 31 January 2024. Having received advice from this examination, on 20 February 2024 DWP decided DC did not score any points under either Schedule 6 or 7 to the Universal Credit Regulations 2013. DWP decided she did not have, and could not be treated as having, limited capability for work.

5. On 29 April 2024, DC appealed to the First-tier Tribunal. On 24 September 2024, a First-tier Tribunal (“FTT”) heard DC’s appeal as a remote telephone hearing at Manchester. The FTT decided DC scored descriptor 1.d (6 points) of Schedule 6 for the activity of mobilising. However, as she did not score any other points, and the FTT decided exceptional circumstances did not apply to her, the FTT refused DC’s appeal and confirmed DWP’s decision. Permission to appeal

6. On 08 January 2025, DC applied to the Upper Tribunal for permission to appeal against the FTT’s decision. On 03 March 2025, I granted DC permission to appeal on the basis it was arguable the FTT had made one or more of the following errors of law argued by DC’s representative: (a) The FTT may not have carried out full fact finding in relation to coping with social engagement (activity 15), instead relying on a brief visit from DC’s friend to collect and walk the dog. This does not account for the remaining period of the week, or the extent or nature of the social engagement carried out when her friend collected the dog; (b) The FTT decided DC deliberately left out mentioning visits from her friend to walk DC’s dog, but this is mentioned in the UC85 report dated 31 January 2024 (page 39 of appeal bundle). DC was not asked about any pets in the previous UC85 report dated 25 May 2023 (pages 62 to 84 of appeal bundle). It is therefore likely that the lack of information about her dog means the healthcare professional would not have asked DC questions about what she did for it; and (c) The FTT might not have applied the law correctly for initiating and completing personal action (activity 13). It was held in CE 2966 2014-00 (MP v SSWP (ESA) [2015] UKUT 0458 (AAC)) that actions taken out of habit are not to be considered under this activity. The FTT arguably failed to apply that in reaching its conclusions at paragraph 23(vi) of its Statement of Reasons; and

7. Using my inquisitorial jurisdiction, I identified the FTT may have made an error of law in respect of its factual findings in the Statement of Reasons that DC was not on any medication for her mental health difficulties at the date of DWP’s decision (paragraph 18(ii)) and she was not on any medication for anxiety and this was relevant to whether DC had an active problem with panic attacks (paragraph 18(iii)). The UC85 report dated 31 January 2024 stated DC was prescribed clonidine for anxiety at 25mcg dosage daily. The report recorded DC said she had been prescribed anxiolytic medications (clonidine) for the last 3 years and prior to this DC was prescribed propranolol but it worsened her menopause symptoms (pages 36 to 37 of appeal bundle). The prescription list DC submitted dated 16 October 2023 confirms DC was prescribed clonidine, at 25mcg daily, and it could be increased to 3 tablets daily after 2 weeks (page 29 of appeal bundle).

8. Conversely, there was also evidence in the bundle suggesting DC might have been prescribed clonidine to manage her hormones or menopause symptoms (UC85 report dated 24 May 2023 and PA4 report dated 01 March 2024 at pages 63 and 152 of the appeal bundle). The FTT may have relied on this evidence, but did not, however, appear to have made any specific findings about the clonidine, what it was for, or to address DC’s statement it was to replace propranolol, which may be prescribed for anxiety. The FTT may therefore have failed to provide adequate factual findings and / or reasoning to support its decision. The Secretary of State’s submissions

9. Mr Kay is the Secretary of State’s representative in these proceedings. He has provided a helpful written submission dated 23 April 2025. Mr Kay supports the appeal only on the ground summarised at paragraphs 7 and

8. Mr Kay invites the Upper Tribunal to set aside the FTT’s decision dated 24 September 2024 for containing a material error of law, for the reasons set out below.

10. Mr Kay observes that the FTT made factual findings at paragraph 18(ii) of its Statement of Reasons that DC, despite suffering mental health difficulties her GP described as “longstanding low mood”, was not on any medication for this condition at the date of DWP’s decision. The FTT reiterated this point at paragraph 18(iii) by its finding that DC was specifically not taking any form of medication for anxiety.

11. Mr Kay submits that the FTT relied on this finding, not only in determining that DC could manage her panic attacks without it interfering significantly with her day to day activities, but also in relation to its findings about whether there was a risk of deterioration to DC’s mental health if she was found capable of work. The FTT cited the absence of any medication as an explanation for its conclusion.

12. Mr Kay submits that the FTT’s factual finding is not consistent with the evidence noted in the UC85 report dated 31 January 2024, which recorded DC was prescribed clonidine for anxiety (FTT bundle, page 36). Under “Mental health problem”, the UC85 report recorded further details that DC was prescribed the clonidine as an anxiolytic as her previous prescription of propranolol had worsened her menopause symptoms. DC was also recorded as stating the clonidine was helpful in managing her anxiety (FTT bundle, page 37).

13. Mr Kay submits that while clonidine is primarily used to reduce hypertension and treat menopausal symptoms, it is sometimes also prescribed “off label” as an anxiolytic as it may decrease anxiety attacks and psychiatric symptoms. Mr Kay argues that given DC stated she had an adverse reaction to the more commonly prescribed anxiolytic of propranolol, her account that the clonidine was used to treat anxiety did not appear inherently improbable.

14. Mr Kay observes that there is evidence elsewhere in the bundle suggesting clonidine was prescribed to treat menopause symptoms and the FTT may have concluded the anxiolytic effect of the medication was not relevant in this case, perhaps relying on its expert medical member. He observes, however, the Statement of Reasons is silent about why the FTT determined the prescription was not at least, in part, to treat anxiety symptoms. Furthermore, the healthcare professional who examined DC on 31 January 2024 did not contest DC’s statement that it was used for her anxiety.

15. Mr Kay submits that given the conflict in evidence, it was incumbent on the FTT to make factual findings about why it did not accept DC’s clonidine prescription was to treat her symptoms of anxiety. Mr Kay submits the failure to do so is a material error of law, particularly given the FTT relied on this fact for several of its determinations.

16. As Mr Kay’s submissions support the appeal ground explained at paragraphs 7 and 8 above, DC’s representatives have, understandably, confirmed they do not wish to make any further submissions regarding this appeal.

17. Given this, there is no need for me to resolve whether the FTT made a material error of law in relation to any of the grounds set out at paragraph 6(a) to (c) above. Mr Kay confirms the Secretary of State does not support those grounds, at paragraphs 11 to 16 of his submissions. Why there was no oral hearing of this appeal

18. Neither party asked for a hearing. I took that into account. Having looked at the matter for myself, I decided an oral hearing is not required. The parties agree the FTT made a material error of law in its decision. It was proportionate to determine the appeal on the papers. My decision

19. 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.

20. 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.

21. I am satisfied, on the balance of probabilities, that the FTT made a material error of law in relation to the appeal ground addressed by Mr Kay at paragraphs 10 to 15 above, dealt with in more detail by his submission dated 23 April 2025. Conclusion, including disposal

22. Having decided the FTT’s decision involved material errors of law, I have decided to use my discretion to set aside the Tribunal’s decision dated 24 September 2024, applying section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Applying section 12, I must decide either to remit (send back) the case to the First-tier Tribunal to decide afresh, or to decide the case myself.

23. None of the parties asked me to decide the case myself. Furthermore, this is a case where more facts need to be found, and the Tribunal needs to think about all the medical evidence. The First-tier Tribunal is best placed to evaluate the evidence, using its medical expertise, and to make appropriate findings of fact.

24. I therefore remit DCs appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about whether she had, or fell to be treated as having, limited capability for work or work-related activity at the date of DWP’s decision on 20 February 2024.

25. Although I have set aside the FTT’s decision dated 24 September 2024, I am not making any findings, or expressing any view, about whether DC has, or falls to be treated as having, limited capability for work or work-related activity. 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 Upper Tribunal Judge Authorised by the Judge for issue: 09 November 2025