SK v Secretary of State for Work and Pensions

The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal made on 27 September 2024 under case number SC014/24/00042 was made in error of law. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, the decision is set and the appeal is remitted to an entirely differently constituted First-tier Tribunal to be redecided, after an oral hearing, and in accordance with the law set out in this decision. REASONS FOR DECISION 1. I am satisfied on the arguments before me that that the First-Tier Tribunal (“the FTT”) erred materially in law in the decision to which it came on 27 September 2024 and that the decision should be set aside as a result. 2. In short, the FTT erred in law in my judgement in failing to provide an adequate explanation for why it concluded that the appellant could ‘stand and then move’ between 1 and 20 metres within a reasonable time period. 3. The appellant’s sole ground of appeal argues, relevantly, as follows: “….the Tribunal’s decision of 27/09/2025 contains an error of law due to inadequate reasons being provided regarding [the appellant’s] ability to complete a distance within a reasonable time period. …..we do not feel that this element of regulation 4 (2A) has been adequately addressed within the statement of reasons (paragraph 17)…….we acknowledge that the issue of completing a distance repeatedly has been adequately addressed due to the walking involved at the assessment and with[in] a supermarket, but say that neither example would challenge the restrictions reported by [the appellant] regarding her walking pace. As noted within our application to appeal dated 01/05/2025, the Tribunal had heard two examples from [the appellant], which both indicated that she was at least twice as slow compared to the average person across short distances. We find no evidence or reasons within the appeal bundle or the statement of reasons to suggest that this is exaggerated by [the appellant], and say that…the Tribunal…. ha[s not] offered the reader adequate reasons to support the Tribunal’s conclusion that “she was not so slow in these endeavours that she could not do those short distances in a reasonable time.’. Given the evidence available to it, we say that it was incumbent on the Tribunal to address this issue directly.” 4. I agree in essence with this submission. 5. The issue is further explained in the Secretary of State’s submission to the Upper Tribunal in support of the appeal, dated 8 December 2025. I agree with that submission and do not need to add to it. The submission reads materially as follows: “1.The Tribunal chose descriptor 2d for the mobility component, Can stand and then move using an aid or appliance more than 20 metres but no more than 50 metres, scoring the claimant 10 points, enough for the standard rate mobility component. For the claimant to be awarded the enhanced rate mobility component (under mobility activity 2) they would need to meet descriptor 2e – Can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided. 2. In awarding any descriptor the Tribunal must consider the terms of Regulation 4(2A)(d), that it must be performed “within a reasonable time period”, defined in Regulation 4(4) as “no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity”. 3. When discussing whether to award descriptor 2e the Tribunal stated: 17.[The appellant] arrived to the hearing in a wheelchair, carrying a walking stick that she said she used to help her walk. She also gave oral evidence that she could walk to the end of her garden using a frame, and that it would take 2 or 3 minutes, but if someone was walking that distance who did not have her difficulties that it would take less than a minute. She had been reported as saying to the assessor that she could walk 50 meters in 5 minutes, but in oral evidence said that she did not think that she could walk that far. She did however say that she would do trips to the supermarket, and would walk around using the trolley for support. The letter from her family member suggested that she could do this by herself. The tribunal found that she was also able to walk other short distances, such as to the car, and from the car into her doctor’s surgery. These are all modest distances, and indeed, Mr Brooks [the appellant’s representative] described his request for 2e as being a “fine line” between 2d and 2e. On balance, the tribunal found 1d to be appropriate. [The appellant] made use of walking aids such as her stick and frame, and a trolley in the supermarket. On her trips to the supermarket, she would have to walk from the car, across the car park, into the shop, around the aisles, and then back through the car park. That is likely to be well in excess of 20 metres. The assessor had recorded that on the day of the assessment she had walked 140 metres from the car park stopping once when she was nearly there. Overall, the tribunal were not persuaded that she was so slow in these endeavours that she could not do those short distances in a reasonable time, or that she could not do them repeatedly. 4. The Tribunal did mention the reasonable time period measurement in the final sentence, concluding the walking speed was not “so slow”. However, the evidence referred to suggests a very slow speed. The HCP recorded the claimant stating a speed of 50 meters in 5 minutes, which on the face of it, would be a speed so slow as would be difficult to justify as being within the reasonable time period definition. The claimant at the hearing stated she walks to the end of the garden in 2-3 minutes, and thought this 2 to 3 times slower than ‘normal’ speed, but without any distance for this journey given. The journey to the HCP office could have given some useful information as we have a specific distance measurement (140m), and the claimant’s representative wished to discuss that nature of that journey in detail (Addition B, p3, final paragraph), however no analysis of that journey was undertaken (in terms of reasonable time period). 5. The failure to discuss the evidence about walking speed, to make detailed findings on the nature of these journeys, on the specific distances and times involved, to question the claimant upon their evidence and address the shortcomings or credibility of it, leaves the Tribunal’s conclusion with inadequate reasoning to justify it. For this reason I submit that the Tribunal erred in law and ask for their decision to be set aside and for the matter to be remitted to a freshly constituted First-tier Tribunal for rehearing.” 6. For the reasons set out above, the appeal succeeds. The Upper Tribunal is not able to re-decide the first instance appeal. That appeals will therefore have to be re-decided afresh by a completely differently constituted FTT, after an oral hearing. 7. The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether her appeal will succeed on the facts before the new FTT, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence. Stewart Wright Judge of the Upper Tribunal Authorised for issue on 5th March 2026