CB v The Secretary of State for Work and Pensions

The decision of the Upper Tribunal is to allow the appeal DIRECTIONS

1. This case is remitted to the First-tier Tribunal (“FtT”) for reconsideration at an oral hearing.

2. It must be heard by an entirely fresh panel.

3. The FtT must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the FtT’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. While the FtT will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.

4. The new FtT is not bound by the decision of the previous FtT. Depending on the findings of fact it makes, the new FtT may reach the same or a different conclusion to the previous FtT. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the FtT to which this case is remitted.

5. These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the FtT. REASONS FOR DECISION Decision on the papers

1. Neither party requests an oral hearing. I am satisfied that I can deal with the case fairly on the papers, and that it is in the interests of justice that I do so. Factual background and the ground of appeal

2. The appellant was in receipt of DLA. A claim was made for PIP In the summer of 2022, as the claimant had turned

16. The appellant was awarded no points for any component of PIP. That remained the case after mandatory reconsideration on 9 February 2023.

3. An appeal was lodged on 18 February 2023, which led to a hearing on 12 November 2024.

4. At heat hearing the appellant was awarded four points for daily living activity one, and two points for daily living activity

4. No other points were awarded and thus no element of PIP was payable.

5. On 23 April 2025 the appellant appealed that decision to the Upper Tribunal. On 2 June 2025 UT Judge West gave permission to appeal on one ground Grounds of appeal

6. Giving permission to appeal Judge West said this: It seems to me that there is an arguable case that the Tribunal erred in law in relation to daily living activity

9. In particular, in relation to daily living activity 9, which was referred to on pages 56-57, 111-112, 156 and 195 of the appeal bundle and with which the Tribunal dealt briefly in paragraph 33 of the statement of reasons, was not the appellant potentially entitled to points for either descriptor 9(b) or descriptor 9(c) in the light of the decisions in SF v. Secretary of State for Work and Pensions (PIP) [2016] UKUT 543 (AAC) (that the claimant engaged effectively with the healthcare professional or could attend for hospital appointments was not sufficient) and HA v. Secretary of State for Work and Pensions (PIP) [2018] UKUT 56 (AAC) (that the claimant could engage effectively only with others who were already known to him/her was not sufficient)?

7. This is a reference to the following passage in the grounds of appeal: The tribunal did not reflect several clear examples in the hearing recording where C described being unable to engage socially without support. This included: • " Relying on friends to go into shops or speak to staff for him • " Not being able approach others in the gym and needs his dad there • " Relying on emotional and practical support from his football coach when playing football and needing encouragement from me and his dad. • " He only has social contact with familiar people from football or school • " A peer at college asked to contact me to learn how to support C after a distressing incident on the college bus There is no example in the oral evidence where he reliably engages socially without some form of prompting or support. These examples do not appear in the tribunals reasons despite being highly relevant to Activity 9 — engaging with others. This constitutes a failure to consider material oral evidence. If it was considered and disregarded, there is no explanation as to why. The respondent’s reply

8. The respondent supports the appeal. they say: it is my submission that the Tribunal has failed to give adequate reasons for their findings in relation to daily living activity

9. The Tribunal’s findings on daily living activity 9 are in paragraphs 33 and 34 of the SOR, where they decided the claimant can engage socially with other people unaided because they have friends, made new friends at college, interacts with individuals in their football team, and a friend who went away to university came round to seem them when they returned. This does not appear to consider some of the findings of fact made in paragraphs 8 to 12 of the SOR. In paragraph 8 of the SOR, it is noted the claimant had behavioural issues at college, and acted impulsively, not understanding the consequences of danger, and paragraph 9 of the SOR it was stated the claimant quite often ‘explodes’ on the pitch when playing football, and has received many cards as a result of this, usually for arguing. A statement that does not appear to have been considered further by the Tribunal in paragraph 9 of the SOR relates to the fact that the claimant’s football coach also has ADHD, and understands the claimant’s challenges. There is no record in the SOR as to whether this understanding extends to any prompting or support. Paragraph 12 of the SOR refers to a safety summary completed by CAMHS dated 16/06/2023, which recorded that the claimant could feel ‘triggered’ in classroom environments, or if jokes were made at his expense, and his response would be to remove himself from the situation. In the referenced safety summary, there is also a consideration of things that can make the claimant worse. This includes relationships with peers, which does not appear to have been considered further [page 4, Addition A of the Tribunal appeal bundle]. A further piece of evidence not referenced by the Tribunal is a letter from Katherine Regan, CAMHS Clinician dated 19/06/2023. This letter discusses various daily living activities, including engaging with other people, where it is stated the claimant has a small friendship group in college who understand ADHD, but outside of college, they do not see anybody. It is also stated that the claimant’s mother will help him understand social cues and body language, and has a friend in college who does this, helping the claimant with social situations [page 10, Addition A of the Tribunal appeal bundle]. I therefore respectfully submit that there is significant evidence which may contradict the findings of the Tribunal that has not been addressed, and it is therefore not clear how the Tribunal have reached their decision…. … it is not clear how the Tribunal have reached their decision, as outlined above. The findings in the SOR do not indicate that the Tribunal has adequately discharged its inquisitorial role. Decision

9. Clearly the appellant has some ability to engage with other people face to face. He does not suggest otherwise. Equally clearly there is at least some evidence that that ability may be impaired. All of that evidence needs to be evaluated and them related to a decision as to what descriptor best applies to this activity.

10. Care is needed. The activity is engaging with people socially face to face. Engaging with people in a structured or formal setting or in a limited way may be evidence from which the FtT can draw conclusions as to the ability to engage generally socially face to face, but this will need to be reasoned out. In addition to the cases referred to by Judge West consideration might be given to AC v SSWP (PIP) 2021 UKUT 216 AAC, where it was pointed out that an ability to engage successfully with others who shared a particular hobby, at a shop or convention dedicated to that hobby, might not without more support an inference that a claimant was able to engage socially without the scaffold or reassurance of the shared interest.

11. In this case the question of whether and to what extent being able to engage at a football club (where a shared interest is in play and particularly if the evidence establishes that the coach of that club may have an unusually well developed understanding of ADHD) or in the context of college supports an award of zero points for this activity needs to be explored. It may or may not do so. That discussion also needs to relate to the other relevant evidence: for example that the appellant may be “triggered” in classroom environments or by jokes at his expense, and that he manages this risk by removing himself from the situation, or that he struggles with appropriate behaviour on the football pitch.. Clearly there is evidence that may support a conclusion that social engagement is not meaningfully impaired and other evidence that may suggest it is and all of this must be considered holistically and a reasoned decision reached. Remake or remit?

12. The appellant asked that the Upper Tribunal remake the decision on the papers. He says the FtT hearing was very stressful and there is enough material before me, in the form of the FtT bundle, to remake the decision.

13. I am sorry to hear that the appellant found the FtT proceedings stressful. However the case must be remitted. I do not feel that the written material in the FtT bundle is at all sufficient to reach a conclusion on Daily Living Activity 9, and there is a need to hear oral evidence. Credibility may be in issue and weight certainly will be. The particular expertise of the FtT, sitting as it does with non legal members and with its regular experience of such hearings makes it a more suitable venue for this exercise than the Upper Tribunal. Conclusion

14. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I therefore set the FtT decision aside and remit the case to be reconsidered by a freshly constituted panel. I stress that this appeal having succeeded carries no implication for whether the FtT will or will not reach a decision that is more favourable to the appellant. That is a matter for it. Stephen Hocking Deputy Judge of the Upper Tribunal Authorised by the Judge for issue on 15 September 2025