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 31 January 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 07 March 2023. 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. D. 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. 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 16 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. PB made a claim for personal independence payment (PIP) on 24 November 2022. The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, asked PB to take part in a video medical assessment on 01 March 2023. Having received advice from that assessment, DWP decided to award PB no descriptors for either the PIP daily living activities or the PIP mobility activities. DWP therefore refused PB’s claim. 2. PB appealed to the First-tier Tribunal on 12 June 2023. Hs appeal was decided following a hearing on 31 January 2024. The First-tier Tribunal (“FTT”) awarded PB descriptor 9.b (2 points) for engaging with other people face to face, but did not award him any other points for either daily living activities or mobility activities. The FTT decided PB was not entitled to PIP and refused his appeal. Permission to appeal 3. On 10 October 2024, PB applied to the Upper Tribunal for permission to appeal against the FTT’s decision. In a decision dated 24 February 2025, and having listened to a recording of the hearing before the FTT on 31 January 2024, I granted PB 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) The way in which the hearing was conducted, including enabling PB to give his evidence effectively: The appeal bundle confirmed PB has been diagnosed with ASD and ADHD, depression, anxiety and alcohol misuse disorder. Given those conditions and a medical letter from a consultant psychiatrist who identified difficulties for PB in social interaction and communication, the Tribunal arguably should have treated PB as a “vulnerable adult” and applied specific guidance to consider how best to obtain evidence from him. This included considering what the FTT could do at the hearing to help PB be able to give his evidence effectively. The FTT’s Statement of Reasons does not, however, explain what steps the FTT took to make it easier for PB to take part, including in response to apparent difficulties asking questions during the hearing; (b) At the start of the hearing, the Tribunal Judge asked PB a number of questions about his self-employed work converting campervans. It was unclear whether FTT explored PB’s evidence adequately on this issue. It appeared the panel took PB’s evidence to mean he had attempted to mislead DWP about his campervan conversion being work (see paragraph 14.a of Statement of Reasons). The Judge then adjourned the hearing, stating this was so PB’s representative could talk to him because that evidence went to PB’s credibility. It is for the First-tier Tribunal to form its own view about the reliability and credibility of evidence given in an appeal. However, given the matters mentioned above about PB being treated as a vulnerable adult witness, the way the Tribunal responded to PB’s evidence about the campervan conversion, including adjourning the hearing, may have affected the procedural fairness of the hearing; (c) Evaluating the effects of PB’s medical conditions on him: The Tribunal’s Statement of Reasons recorded that PB’s medical conditions were set out in the appeal bundle. DWP’s response and PB’s GP and consultant medical records confirm these include ASD, ADHD, depression and anxiety and alcohol misuse disorder (see GP records, Addition A, page 1). This suggests the Tribunal accepted PB had anxiety and depression and alcohol misuse disorder. The Statement of Reasons does not explain what the Tribunal decided were the effects of PB’s anxiety and depression and alcohol misuse disorder. The audio recording also does not indicate that the Tribunal asked PB specific questions about alcohol misuse. In these circumstances, it is unclear whether the Tribunal considered adequately the effects of all PB’s medical conditions on him around the time of DWP’s PIP entitlement decision on 07 March 2023; and (d) The Tribunal’s evaluation of the medical evidence in the appeal: The FTT placed substantial reliance on the healthcare professional reports completed by DWP for PB’s PIP claim and his work capability assessment. The FTT did not explain what it made of other medical evidence in the bundle, for example, the psychiatrist’s letter dated 09 December 2022, highlighting problems with social interaction and communication, and the ADHD diagnosis letter dated 15 February 2023 (Addition A, page 41 of bundle). The ADHD letter appeared to support some of the difficulties PB described for individual PIP activities. It is therefore unclear how the Tribunal evaluated and took that medical evidence into account. 4. I directed for the Secretary of State’s representative to obtain and listen to a copy of the audio recording of the FTT’s appeal hearing on 31 January 2024. The Secretary of State’s submissions 5. Ms Keates is the Secretary of State’s representative in these proceedings. She supports the appeal to the Upper Tribunal in a helpful written submission dated 16 April 2025. 6. Ms Keates invites the Upper Tribunal to set aside the FTT’s decision dated 31 January 2024 for containing material errors of law, for the reasons set out below. 7. Procedural fairness of hearing: Ms Keates submits that given PB’s medical diagnoses, which the FTT acknowledged several times in the Statement of Reasons, it should have treated PB as a vulnerable adult. The FTT should therefore have considered how to facilitate the appeal hearing, in order to allow PB to take part fully. This included considering how best to enable PB to give his evidence. Ms Keates submits the FTT has not mentioned in the Statement of Reasons any considerations it gave to this, or any adjustments it made to help PB take part in the hearing. Ms Keates submits the FTT failed to follow its duty in rule 2(2)(c) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008, to ensure, so far as practicable, that the parties could take part fully in the proceedings. 8. Evaluating adequately the effects of PB’s medical conditions on him: Ms Keates submits that the FTT stated that PB’s medical conditions were set out in the appeal papers. The conditions listed there included ADHD with moderate presentation, ASD, anxiety, depressed mood and alcohol misuse. Ms Keates argues that the FTT did not appear to have engaged with this evidence, in particular how PB’s anxiety, depression and alcohol misuse might affect his ability to carry out the PIP activities. 9. Resolving conflicts in the evidence adequately: Ms Keates submits that the FTT has not dealt adequately with the conflict between what a DWP healthcare professional recorded in PB’s fitness for work medical assessment – the UC85 report (06 January 2023, page 142 of FTT bundle) and what a different DWP healthcare professional recorded in the PIP medical assessment – the PA4 report (01 March 2023, page 116 of FTT bundle). 10. Ms Keates submits that the UC85 report described PB having some difficulty coping at interview, speaking rapidly, needing encouragement to slow down and get his words out properly and having some difficulties coping due to his anxieties. She contrasts this with what the PA4 report described as PB coping well at interview, and not presenting as anxious, agitated, restless or tense. Ms Keates submits the FTT has not dealt with his conflict and appears to be selective in relying on some parts of the UC85 report, but not addressing those that support PB having difficulties. 11. Ms Keates also submits that the FTT has not resolved the conflict in evidence with the psychiatry report at Addition A, pages 41-45, which recorded PB describing, and during the assessment demonstrating, symptoms of fidgeting and distractibility that supported the diagnosis of ADHD (inattentive type). Ms Keates argues that the evidence from the consultant psychiatrist was supportive of the problems PB was describing, but the FTT failed to explain how it evaluated and took that evidence into account. 12. Ms Keates submits that while the FTT is entitled to form its own assessment of the weight of evidence, where there are conflicts in the evidence, the FTT must explore and consider this holistically. The FTT must also give sufficient reasons to explain why it has decided to prefer some evidence over other evidence. Ms Keates submits the FTT has not done so in explaining its decision about PB’s appeal. 13. It appears Ms Keates may not have had access to the audio recording of the FTT’s hearing on 31 January 2024. She does not mention it in her submissions. I note, however, Ms Keates has argued that the FTT made material errors of law based on what is in the appeal papers and the FTT’s Statement of Reasons. This is sufficient to allow me to decide PB’s appeal against the FTT’s decision dated 31 January 2024. 14. PB has sent the Upper Tribunal a number of emails. These have focused on a second claim he made for PIP after his first claim was refused. PB has asked whether a second claim can be joined to his first, on the basis he was still contesting the first claim decision when he made a second PIP claim. PB refers to DWP having refused to acknowledge his mandatory reconsideration request for that claim, and ignoring his medical evidence. In July 2025, PB wrote to the Upper Tribunal with various documents, including a word document headed “PIP tribunal appeal – written submission”. In that document, PB wrote that he did not yet have an appeal reference number for his challenge to DWP’s decision on his new PIP claim, because he was waiting for the outcome of the Upper Tribunal’s decision on his first PIP claim. 15. PB also wrote in an email dated 14 July 2025 that he was submitting information about his second claim in case the claims were not combined and a second FTT hearing was scheduled for his second PIP claim. 16. On 01 August 2025, PB wrote to the Upper Tribunal asking for an update about his appeal against his first PIP claim. He wrote that he was facing another FTT on a PIP claim he opened while waiting for the first (PIP) claim to be resolved. He asked if the Upper Tribunal Judge could make his (second) claim decision rather than go back to another FTT. Dealing with PB’s second claim for PIP 17. The Upper Tribunal cannot deal with PB’s second claim for PIP. When DWP decided PB’s second PIP claim in 2024, DWP made what is called a final decision. It is final because it cannot be changed unless and until DWP reconsiders and changes it, or PB appeals it to the First-tier Tribunal and the First-tier Tribunal decides his appeal. See sections 12 and 17 of the Social Security Act 1998. 18. The Upper Tribunal can only consider a challenge against a DWP decision where the First-tier Tribunal has already decided an appeal against DWP’s decision. See rule 21 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the UT Rules 2008”). 19. The Upper Tribunal was set up by an Act of Parliament. As a result, it only has the power to act where Parliament has given it the power to make decisions. The Upper Tribunal has only been given the power to make decisions about a DWP decision where the First-tier Tribunal has decided an appeal against the decision that DWP has made. 20. This means PB cannot shorten the process of challenging DWP’s decision by asking the Upper Tribunal to look at DWP’s decision instead of appealing to the First-tier Tribunal. 21. PB’s emails and attachments suggest he may have already lodged an appeal with the First-tier Tribunal against the PIP decision DWP made in 2024. If that is the case, PB needs to wait for his appeal to be listed and decided by the First-tier Tribunal, before he can decide whether to challenge it further. 22. If PB has not yet lodged an appeal with the First-tier Tribunal against DWP’s decision on his second PIP claim, he needs to register an appeal with the First-tier Tribunal about that claim. PB will need to do this as soon as possible. There are time limits about appealing DWP’s decisions. Why I did not have an oral hearing of PB’s appeal about his first PIP claim 23. 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 the FTT made mistakes of law in deciding PB’s appeal and that they were ones that could have made a difference to its outcome. 24. I therefore determined the appeal on the papers. It was proportionate to do so. My decision 25. At the stage when I granted PB permission to appeal, 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. 26. At this 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. 27. I am satisfied, on the balance of probabilities, that the FTT made material errors of law in relation to the appeal grounds addressed by Ms Keates at paragraphs 7 to 12 above and dealt with in more detail by her submission dated 16 April 2025. Conclusion, including disposal 28. 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 31 January 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. 29. Ms Keates has invited me to remit PB’s appeal to a new First-tier Tribunal to decide. 30. Although he was focusing on DWP’s decision about his second PIP claim, I take PB’s comments to also apply to his first PIP claim. This means I understand PB is asking the Upper Tribunal to decide his appeal about his first PIP claim as well. 31. One of the reasons I have set aside the FTT’s decision is because it did not explain what it made of the medical evidence about PB’s mental health problems. The FTT includes a specialist medical member and a specialist disability member. PB’s appeal needs to be decided with the benefit of that specialist medical and disability expertise, including taking into account, for example, what PB’s psychiatrist wrote about him. 32. I therefore remit PB’s appeal for rehearing before a new First-tier Tribunal. The new Tribunal will make a fresh decision about whether he should be entitled to PIP at the date of DWP’s decision of 07 March 2023. 33. Although I have set aside the FTT’s decision dated 31 January 2024, I am not making any findings, or expressing any view, about whether PB should be entitled to PIP. 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: 08 September 2025