JB 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 13 August 2024.

3. The Appellant is reminded that the tribunal can only deal with the appeal, including his health and other circumstances, as they were at the date of the decision by the Secretary of State under appeal (namely 5 December 2023).

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. The short version is that the Secretary of State’s decision-maker made an award of the standard rate of the PIP mobility component for the period from 5 December 2023 to 27 May 2026. There was no award of the daily living component, although he had previously qualified for the enhanced rate of that component. 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 detailed in the letter dated 12 March 2025 attached to his Form UT1. In summary, his representative argued that the FTT had erred in law by failing to adjourn the case to enable the Appellant to seek advice and to give oral evidence. It was also argued that the FTT had made assumptions about the state of the Appellant’s mental health without adequate evidence. I gave the Appellant permission to appeal, observing as follows: The Appellant’s grounds of appeal are arguable. It may be that the Appellant is really seeking to re-argue the factual merits of the case. Be all that as it may, it may be that (despite the care taken) the FTT here may have failed to find sufficient facts or give adequate reasons for its decision and so possibly erred in law.

6. 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): In reaching their decision the FtT relied heavily on the assessment report, and as noted in paragraph 14 of the SOR a letter postdating the decision which indicates an improvement in the appellants mental health. As noted by the FtT at paragraph 11 of the SOR, that despite the appellant not identifying a mental health condition in their questionnaire they did report that they were taking Sertraline and Amitriptyline which was an increase in medication since the last assessment. Although the FTT show concern at the lack of evidence from the appellant in their questionnaire, they fail to make further findings of fact on the matter. Although the FtT is entitled to give weight to whatever evidence it chooses to do, in this case due to the perceived inconsistencies arising from the lack of evidence. The FtT should have made further findings of fact on the appellants mental health rather than relying solely on the HCP report. Judge Hemingway held in SM v SSWP (PIP) [2021] UKUT 140 that in cases where there are is inconsistencies within the evidence: ‘There will, of course, be some inconsistencies which are so very stark or potentially so very damning, or which might of themselves be determinative of an appeal, where the requirements of natural justice would require an FTT to specifically put the matter to a claimant for comment’. Applying the case law above, due to the uncertainties surrounding the appellant’s improvement in health, the FTT should have considered whether to adjourn or issue further directions to the appellant to attend the hearing and provide further information on their condition. The appellant completed the review form himself and participated in a telephone consultation himself and handled the appeals process by himself, with no evidence of a representative present. It is unclear how the appellant’s condition has been considered to have improved, despite the claimant being on a higher level of medication, further information would need to be gathered by the FTT on this matter. By doing so, the further evidence provided by the appellant could have resulted in an increased level of award. It is unclear from the SOR whether the FTT considered adjournment or issuing the appellant further directions to assist in this case, this amounts to an error of law. I submit that the FtT have failed in their inquisitorial duty by not further investigating the appellant’s mental health condition. It is noted at paragraph 11 of the SOR that despite the appellant not identifying a mental health condition in their questionnaire they did report that they were taking Sertraline and Amitriptyline which was an increase in medication since the last assessment. Although the FtT show concern at the lack of evidence from the appellant in their questionnaire, they fail to make further findings of fact on the matter. As noted above, the FtT is entitled to rely on that assessment report during the decision making, however, this assessment report is based on a telephone consultation, and it is not clear if there was a representative present with the appellant. The appellant may not have represented an accurate account of themselves during the assessment, so the FtT arguably shouldn’t have dismissed the UC reports and relied solely on the PIP assessment report.

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

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

9. 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.

10. 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

11. 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.

12. In doing so, however, unfortunately the new Tribunal will have to focus on the claimant’s circumstances as they were as long ago as in December 2023, and not the position as at the date of the new hearing, which will obviously and regrettably be around two 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 decision by the Secretary of State, which was appealed to the FTT, was taken on 5 December 2023. Conclusion

13. 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 27 August 2025