TH v Secretary of State for Work and Pensions

The appeal is allowed for the reasons set out below. The decision of the First-tier Tribunal of 13 June 2024 was made in error of law. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to the First-tier Tribunal (Social Entitlement Chamber) for reconsideration by a differently constituted Tribunal, which should conduct a complete rehearing of the matter taking into account what I have said below. REASONS FOR DECISION Background and procedural history

1. The appeal relates to the Personal Independence Payment (‘PIP’).

2. The appellant (‘TH’) is now aged

45. As a result of injuries sustained in a train accident over twenty years ago he had had the lower part of his right leg and three fingers on his left hand amputated. His lower right forearm and wrist had been reconstructed as had the index finger on his left hand (his dominant hand). He used crutches to walk and stand and, at the relevant time, did not have a prosthesis because of the condition of his stump. He suffered from migraine, asthma and depression as well as pain in his left knee, hips, wrists, shoulders, elbows, back and neck. He took various painkillers when needed and had regular injections for pain management. He also took duloxetine for depression and controlled his asthma with an inhaler.

3. TH had been given a lifetime award of the mobility component of Disability Living Allowance (‘DLA’) at the higher rate but no award of the daily living component. The award of higher rate mobility component qualified TH for a car under the Motability scheme which helped him to get around and to get to work. He was working on a help desk for a paint company for 32.5 hours a week.

4. On 21 January 2023 TH made a telephone claim for PIP. In a completed PIP2 questionnaire dated 2 March 2023 TH indicated that he had difficulties with both the daily living and mobility activities of PIP and, on 5 June 2023, TH took part in a telephone assessment with a Healthcare Professional (‘HCP’).

5. On 12 August 2023 a decision-maker made a decision on TH’s PIP claim. The decision was that TH was entitled to the daily living component of PIP at the standard rate but no award of the mobility component. The decision-maker gave TH a score of 10 points for daily living activities and 4 points for the mobility activities of PIP as follows: Daily living activities Preparing food:Activity 1b – 2 points (aid or appliance needed to prepare or cook a simple meal) Taking nutrition:Activity 2b – 2 points (aid or appliance needed to take nutrition) Washing and bathing:Activity 4b – 2 points (aid or appliance needed to be able to wash or bathe) Managing toilet needs:Activity 5b – 2 points (aid or appliance needed to manage toilet needs) Dressing and undressing:Activity 6b – 2 points (aid or appliance needed to be able to dress or undress) Mobility activities Moving around:Activity 2b – 4 points (can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided As TH was not awarded the mobility component of PIP at the higher rate his entitlement to a Motability car ceased.

6. The decision of 12 August 2023 was reconsidered but not changed on 2 January 2024.

7. On 5 February 2024 TH appealed the decision of 12 August 2023. On 13 June 2024 the First-tier Tribunal (‘FtT’) allowed TH’s appeal and set aside the decision of 12 August 2023. TH attended the hearing but was not represented. The FtT awarded 10 points for mobility activity 2(d) (can stand and then move using an aid or appliance more than 20 metres but no more than 50 metres) and awarded two points for each of daily living activities 1b, 2b, 4b, 5b and 6b (total 10) resulting in TH being awarded the standard rate of both components of PIP for the period 13 September 2023 to 4 June 2026.

8. TH was refused permission to appeal to the Upper Tribunal against the FtT decision of 13 June 2024 by a District Tribunal Judge on 17 October 2024 and, on 22 November 2024, he applied to the Upper Tribunal for permission to appeal. His grounds were, in essence, that the FtT had given inadequate reasons for its decision.

9. On 20 February 2025 Upper Tribunal Judge Brewer granted permission to appeal. The appeal is supported by the Respondent in his submission to the Upper Tribunal of 14 May 2025. The appeal

10. An appeal to a Judge of the Upper Tribunal will be successful only if the decision of the tribunal below is erroneous in point of law. There will be an error of law if: (1) The tribunal got the law wrong. (2) The decision is not supported by the findings of fact made by the tribunal. (3) The tribunal’s decision was perverse, in other words, on the basis of the facts as found no person acting judicially and properly instructed as to the relevant law could have come to that decision. (4) There has been a breach of natural justice. (5) The tribunal did not give adequate reasons for its decision. Analysis

11. Upper Tribunal Judge Brewer in her extremely comprehensive analysis identified the following grounds (which I have summarised) as arguable: (1) TH had previously been in receipt of the higher rate mobility component of DLA which had been awarded for a lifetime in 2001. Although there was no complete overlap between the criteria for an award of DLA and those for an award of PIP there was some degree of overlap so that some needs which gave rise to a DLA award would also be likely to satisfy certain of the PIP criteria. The FtT failed to consider whether the DLA evidence was or could be relevant to the matters they had to decide in relation to the claim for PIP and whether they could fairly determine the appeal without that evidence. In the Statement of Reasons for Decision (‘SOR’) the only reference to the previous award of DLA was at point 4 where the FtT said: ‘The eligibility rules for PIP are entirely different from DLA and while the Tribunal took notice of the previous award, it was not in any way bound by it.’ If a Tribunal either concludes that the DLA evidence is not relevant or concludes that it is relevant but proposes to proceed without it, it should explain why in its decision (CH and KN v SSWP (PIP) [2018] UKUT 330 (AAC)). The FtT did not do this. (2) The FtT failed to have regard to regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 when assessing H’s ability to move around. Regulation 4(2A) provides that a claimant is to be assessed as satisfying a descriptor only if he can do so safely, to an acceptable standard, repeatedly and within a reasonable time period. There was evidence before the FtT that TH had fallen on several occasions (see HCP report) and that he was in constant pain when walking (SOR at point 12) however in the SOR (at point 13) the FtT found that TH could stand and mobilise for 20 to 50 metres ‘to an acceptable standard’ without giving reasons for that finding. Further findings were required regarding the impact of TH’s functional difficulties, his pain whilst mobilising, the distances he could repeatedly mobilise and whether he could do so safely.to explain how the FtT arrives at this conclusion. The FtT noted the following at paragraph 5 of the SOR: “[TH] had claimed 4 Daily Living descriptors and one Mobility descriptor. He was awarded points for the toileting descriptor which he had not claimed and consequently was awarded the standard rate of the Daily Living component with 10 points. He confirmed to the Tribunal at the commencement of the hearing that he was content with that award and did not seek to appeal it… He confirmed to the Tribunal that his appeal was solely in relation to the physical mobility issue and that part of the Mobility descriptor. This statement therefore only deals with that descriptor relating to physical mobility. The Tribunal did, as part of its duty to fairness generally consider whether any other descriptors might apply and concluded that they did not. A failure to deal with the others should not be taken as an indication that reasons could not be given if required.” It was arguably an error of law for the FtT to identify that they had considered the other daily living activities for which no points had been awarded by the decision-maker but then to provide no reasons for confirming the decision under appeal in this regard. Upper Tribunal Judge Brewer pointed out that the regulation 4(2A) matters identified in (2) above were arguably also relevant to the daily living activities in issue, in particular, activity 1 (preparing food) and activity 4 (washing and bathing): ‘I note for instance his written evidence of safety issues when bathing, and that he had fallen while in the shower before because he had to hop while the floor was wet. If the position was that an aid would overcome this risk of falling this needs to be reasoned. Further, it doesn’t engage with whether the aids for the activities in issue would overcome the Appellant’s experience of pain when completing the daily living tasks in issue. I also observe that his evidence was that he could not cut up vegetables and he confirmed in oral evidence significant functional difficulties with his hands and wrists. The use of an aid is confirmed in the Respondent’s decision but there is no analysis of what aid(s) would overcome his functional impairment to enable him to safely prepare and cook a meal or do so to an acceptable standard bearing in mind his evidence of significant pain in his wrists.’

12. I find all the grounds identified by Upper Tribunal Judge Brewer and summarised at 11 above to be made out. These errors are material in that they could affect the award of PIP- an additional two points for either component would have resulted in an enhanced award. The decision of the FtT is therefore wrong in law.

13. For the sake of completeness I would add that Upper Tribunal Judge Brewer also considered the question of whether TH had been given a fair hearing as he had been presented with evidence from the medically qualified member and the disability qualified member who had observed him walking to the tribunal centre. Their observations as to TH’s mobilising were put to TH and accepted by him ‘without qualification’ (SOR at paragraph 9). There is no indication of what weight (if any) the FtT gave to these observations. For this reason also the FtT’s decision is wrong in law. Ann Humphrey Judge of the Upper Tribunal Authorised by the Judge for issue on 21 November 2025 [