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

The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with this decision and the following directions. DIRECTIONS

1. This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

2. The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 20 March 2025.

3. The Appellant is reminded that the tribunal can only deal with the appeal, including her health and other circumstances, as they were at the date of the decision by the Secretary of State under appeal (namely 3 July 2024).

4. If the Appellant has any further written evidence to put before the tribunal and, in particular, further medical evidence, this should be sent to the HMCTS regional tribunal office within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).

5. The new First-tier Tribunal is not bound in any way either 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. These Directions may be supplemented by later directions by a Tribunal Legal Officer, Tribunal Registrar or First-tier Tribunal Judge. REASONS FOR DECISION Introduction

1. The Appellant’s appeal to the Upper Tribunal succeeds and so there will need to be a completely fresh hearing of the original Personal Independence Payment (PIP) appeal before a new First-tier Tribunal (FTT). The Upper Tribunal’s decision in summary and what happens next

2. I allow the Appellant’s appeal to the Upper Tribunal, which has the support of the Secretary of State’s representative. The decision of the First-tier Tribunal involves a legal error. For that reason, I set aside the Tribunal’s decision.

3. The Appellant’s case now needs to be reheard by a new and different First-tier Tribunal. I cannot predict what will be the outcome of the re-hearing. So, the new tribunal may reach the same, or a different, decision to that of the previous Tribunal. It all depends on the findings of fact that the new Tribunal makes. The factual background

4. In short, on 3 July 2024 the Secretary of State’s decision-maker decided to reject the Appellant’s PIP claim, scoring her at 6 daily living points and 0 mobility points. The Appellant appealed to the FTT. The FTT, following a hearing ‘on the papers’, confirmed the DWP decision under appeal. The grounds of appeal

5. The Appellant’s grounds of appeal were as follows: The Tribunal argue that the appellant told the HCP that she manages her own toilet needs independently. They have not stated what these "toilet needs" would be and more importantly what the appellant understood this to mean. The Tribunal say that the appellant did not mention the use of pads in her CRMR1 but we say she did at page

80. The Tribunal also argue that any help from the appellant's daughter with toileting would be an exaggeration but the Tribunal seem to have taken this out of context as the help would seem to be with adjusting underwear and not using the toilet. We say that the Tribunal was perhaps too keen to look for reasons to find the appellant to be unreliable and this has influenced their view of the evidence to the extent that they erred in law.

6. I gave the Appellant permission to appeal, observing as follows: The Appellant’s grounds of appeal are narrowly defined and arguable. However, it may be that the grounds are really seeking to re-argue the factual merits of the case, in which case the appeal cannot succeed. So the fact that permission to appeal has been granted should not be taken as any indication of the likelihood on closer scrutiny of the appeal succeeding.

7. Mr R Binks, the Secretary of State’s representative in these proceedings, supports the appeal. He sums up his analysis as follows (SOR = statement of reasons):

2. Regarding the reported use of incontinence pads, the appellant has been consistent through their claim in reporting that they wear incontinence pads daily due to their IBS. As evident in the UC report, where the appellant reports “loses control of her bowels as not quick enough to go to the toilet. She states the pads managing to contain the leakage” (FtT Bundle Page 95) and in the their PIP2 questionnaire (FtT Bundle page 12) they state, “I also wear incontinence pads on a daily basis”. This is confirmed by the Tribunal under paragraph 39 of the SOR which states “[the appellant] wears incontinence pads on a daily basis”. The UC85 medical report further confirms use of incontinence pads (FtT Bundle Page 95). One must then ask themselves why the Tribunal have stated the below under paragraph 47 of the SOR: “With regard to the Appellant’s use of incontinence pads, the Tribunal found that although the Appellant might choose to use them sometimes as a precaution, they were not a necessity and it was unclear whether [the appellant] used them for a majority of days.”

3. The reader is left in doubt as to why the Tribunal did not simply ask further questions using their inquisitorial function to further establish about the use of pads on the majority of days, which would have helped in their decision making process. The Tribunal under paragraph 49 state that the appellant “had not referred to her pads during her conversation with the HCP and this indicated that they were of peripheral importance and were not an aid for the purposes of this descriptor.” It could be said that the Tribunal have taken a narrow approach here and looked at one incident where the pads have not been mentioned, but it is clear they have been mentioned in various other incidents such as the PIP2 and UC report, the Tribunal in their investigation should have asked about the ongoing use of pads for the purposes of managing incontinence.

4. Turning to the appellant’s representative’s grounds, where they state “the tribunal was perhaps too keen to look for reasons to find the appellant to be unreliable”, I note that the Tribunal under paragraph 46 state that they did not find the appellant to be credible as they “did not believe that the Appellant’s daughter helped her on the toilet and found this to be an exaggeration”. They further state that “this extreme level of disability was not supported by the medical evidence”. The Tribunal’s reasoning is somewhat flawed as in my submission they have not fully engaged with the medical evidence supplied when making their findings of fact. Under paragraph 45 the Tribunal state “the Appellant had limited movement in her right arm, the HCP met her in person and was able to assess whether her range of movement would enable her to use the toilet on her own. For the reasons given above, the Tribunal accepted the HCP’s findings.” It is unclear why the Tribunal had taken this decision as at several points in the SOR the Tribunal has recorded findings of the claimant experiencing restrictions with her right arm and elbow due to her rheumatoid arthritis. It is my submission that the Tribunal was required to further explore these issues to determine if the claimant had functional restrictions with managing their toilet needs unaided.

8. For completeness, I should add that the Appellant’s representative has no further observations on the substance of the appeal. Analysis: a summary

9. I agree with the analysis of the Secretary of State’s representative in his written submission supporting the appeal o the Upper Tribunal.

10. I am accordingly satisfied that the First-tier Tribunal erred in law for those reasons. I therefore allow the Appellant’s appeal to the Upper Tribunal and set aside (or cancel) the Tribunal’s decision.

11. I therefore remit (or send back) the original appeal for re-hearing to a new tribunal, which must make a fresh decision. What happens next: the new First-tier Tribunal

12. 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 Appellant 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.

13. In doing so, however, unfortunately the new Tribunal will have to focus on the claimant’s circumstances as they were in July 2024, and not the position as at the date of the new hearing, which will obviously be more than a year 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 decision by the Secretary of State, which was appealed to the FTT, was taken on 3 July 2024. Conclusion

14. 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 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The case must be remitted for re-hearing by a new tribunal subject to the directions set out above (section 12(2)(b)(i)). My decision is also as set out above. Nicholas Wikeley Judge of the Upper Tribunal Authorised by the Judge for issue on 23 September 2025