KT v Secretary of State for Work and Pensions

1. This is a supported appeal in a case about Personal Independence Payment (PIP).

2. The relevant factual and procedural history is as follows. The claimant, who is now aged 58, unfortunately suffers from a variety of medical conditions including chronic fatigue syndrome, bulging disc, hiatus hernia, tinnitus in both ears, bowel and bladder prolapse, hip disorder and internal cystitis. She made a claim for PIP on 29 December 2022. The decision-maker made a decision dated 21 April 2023 awarding the claimant 0 points for daily living and 4 points for mobility. As the threshold for an award of either component of PIP is 8 points, the claim was refused. The claimant appealed to the First-tier Tribunal. She was awarded 2 points for Activity 5 (Managing toilet needs) and the award of 4 points for mobility was maintained so the appeal was unsuccessful. The tribunal’s reasons for refusing the appeal are contained in a Statement of Reasons (“SOR”) dated 30 July 2024.

3. The claimant sought to set aside the decision but that application was refused on 17 October 2024. The claimant then applied for permission to appeal (PTA). PTA was refused by the FTT but granted by UTJ Fitzpatrick on 9 January 2025 with the following observations: “The FTT may be in error of law in that it failed to adequately consider Regulation 4(2A) of the Social Security (PIP) Regulations 2013, specifically, the impact of pain on the Appellant’s ability to carry out activities to an acceptable standard, repeatedly and within a reasonable time period. It may also have failed to provide adequate reasons in this regard”.

4. As is customary, the Secretary of State was directed to respond to the appeal following the permission grant and has done so by way of submissions dated 12 February 2025 supporting the appeal. In view of the fact(s) that this is now a supported appeal and I agree with the Secretary of State’s submissions, I propose to explain relatively succinctly why I have allowed the appeal.

5. The claimant put a number of matters in issue in her appeal, including activities 1 (Preparing food), 4 (Washing and bathing) and 6 (Dressing and undressing) and as noted above was awarded 2 points for activity

5. She also put in issue mobility and was awarded 4 points by reference to descriptor 2b (Can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided).

6. In dealing with descriptors 1,4 and 6 the Tribunal, in awarding 0 points for each of these activities seem to have placed an inordinate amount of weight on the claimant’s ability to drive a manual car, change gear, operate the steering wheel and get in and out of the car. Whilst the tribunal supported their read across by reference to other things that the claimant was apparently able to do, the read across from driving and operating a manual car seems to have been the decisive factor in coming to the conclusions that they did on these activities.

7. In my judgment the FTT have accorded too much weight to the fact the claimant can drive and have inappropriately extrapolated from the ability to drive to other activities.I note the decision of Commissioner Stockman on this issue in JMcD v Department for Communities (PIP) [2019] NICom 24, in particular paragraph 20 which provides: “It is legitimate for a tribunal to consider how the actions involved in driving a car may read across into the scheduled daily living and mobility activities. Nevertheless, that general principle is subject to the qualification that the activity in question is genuinely comparable and that it is done with the same level or regularity as the scheduled activity. The ability to perform daily living activities has to be addressed within the context of regulation 4 and regulation 7 of the PIP Regulations”. Similarly, Commissioner Jacobs stated in CDLA/1572/2005 “The key is obviously to ensure that the function involved in driving and in cooking is truly the same”. Further, as I said previously in RH v SSWP, UA-2023-001803, “the read across from driving a car into the scheduled daily living activities is not automatic and does not absolve a tribunal from dealing with the specific evidence adduced on the activity in question”.

8. In my judgment, the FtT has not made sufficient findings or provided adequate reasoning to justify the read across relied on and has not explained how driving is comparable to preparing and cooking a simple meal or indeed washing and bathing and dressing and undressing.

9. The matter does not rest there. There is no explicit reference in the SOR to Regulation 4(2A) of the 2013 PIP Regulations. This might not matter if the tribunal had in fact grappled with the issue and made sustainable findings of fact on the issue of whether, assuming the claimant could indeed carry out the daily activity under consideration, she could do so safely, to an acceptable standard, repeatedly and within a reasonable time, but I am not persuaded that they did.

10. There were, I note, repeated references in the evidence adduced by the claimant as to her problems with pain when attempting to perform the various daily living activities. The Secretary of State’s submissions give a number of pertinent examples at paragraphs 4.5, 4.6, 4.9, 4.10, 4.15, 4.16, 4.18 and 4.20 thereof. The Tribunal did not reject her evidence that she was in pain. The tribunal accepted that the claimant was affected by pain (see paragraph 21, SOR) but indicated that they did not find the evidence about the impact of that pain on the claimant’s ability to carry out daily living activities to be credible. Ordinarily a credibility finding such as this is difficult to criticise, and is generally a matter for the fact-finding tribunal; however, the difficulty in the present case is that that conclusion seems to have been entirely informed and driven by the tribunal’s impermissible read-across. In my judgment, rather than relying on the read across, the tribunal should have gone on to make sufficient findings of fact in relation to Regulation 4(2A), and whether any particular activity could be carried out “to an acceptable standard”, bearing in mind the guidance set out in PS v SSWP [2016] UKUT 0326 (AAC) (PS) and the pain experienced by the claimant. Further and in any event, while it may be possible, with sufficient reasoning, to infer from the claimant’s ability to drive and grip a steering wheel that their manual dexterity is adequate to prepare food, wash and bathe or dress and undress, their ability is not indicative of how painful this may be. Absent any reference to Regulation 4(2A) in the SOR or any specific reasoning dealing with this important issue, I am not persuaded that the tribunal have had any or any sufficient regard to this important provision or made sufficient findings on the detailed evidence adduced by the claimant dealing with her pain and hence her ability to carry out these activities to an acceptable standard. In agreement with the Secretary of State, I am also of the view that the tribunal did not sufficiently engage with Regulation 4(2A)(d) and whether the claimant could in fact carry out any of the activities in issue within a reasonable time given her evidence that it took her 4 hours to get moving in the morning due to severe pain.

11. The grounds of appeal also put in issue the tribunal’s findings in relation to moving around. I have the same concerns here and am not persuaded that the tribunal dealt adequately with the issue of pain in this context either.

12. For those reasons I am satisfied that the tribunal materially erred in law and that their decision must therefore be set aside. I am not in a position to remake the decision myself and I therefore remit the appeal to a freshly constituted FTT for re-hearing.

13. I have deliberately not dealt with every issue. Any further errors will be subsumed within the rehearing and can be looked at again by the new panel. Both the grounds of appeal and the submissions of the Secretary of State will be before the tribunal, which will take a completely fresh look at the case, noting the matters that I have dealt with in this decision.

14. The claimant is encouraged to attend a face to face hearing if possible, preferably with somebody who knows her well, and can speak to the tribunal about the practical problems that she encounters in terms of her daily living and mobility.

15. The claimant should understand that the fact that the appeal has succeeded at this stage because of errors of law is not to be taken as any indication as to what the new tribunal might decide on the evidence before it. W J Hansen Judge of the Upper Tribunal Authorised for issue on 4 September 2025