CS v The 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 number SC269/23/01086 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 be reconsidered by a fresh tribunal. DIRECTIONS

1. This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

2. The members of the First-tier Tribunal who reconsider the case should not include any of those who were previously involved in considering the claimant’s appeal.

3. The legislation requires that the tribunal can only base their decision on circumstances as they were at the date of the original decision by the Secretary of State.

4. The parties should send any further evidence upon which they wish to rely to the HMCTS regional tribunal office within one month of the issue of this decision. Any further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State.

5. The new First-tier Tribunal are not bound in any way by the decision of the previous tribunal and may reach the same or a different outcome depending on the findings of fact that they make. These Directions may be supplemented by later directions by a Tribunal Legal Officer, Tribunal Registrar or First-tier Tribunal Judge. REASONS FOR DECISION

1. This case concerns personal independence payment (PIP). The issue before the First-tier Tribunal was whether the claimant should receive the enhanced rate of the mobility component of PIP rather than the standard rate that had been awarded to her. (The claimant had also been awarded the daily living component at the standard rate, but that was not in issue in the appeal.) The rate of the mobility component that she was entitled to depended on whether she could stand and move between 20 and 50 metres using an aid or appliance (as the DWP had found) or could only stand and move between 1 and 20 metres.

2. The tribunal concluded that the claimant “would be able to reliably manage the distance between 20 and 50 metres for at least one minute with a suitable aid before she would need to stop due to pain. A slow pace was considered by the tribunal”.

3. On 28 July 2025 Judge Brewer gave the claimant permission to appeal on the grounds that the tribunal had arguably not adequately considered the evidence that: the claimant felt tired all the time and was receiving vitamin B12 injections for fatigue; she was in constant lower back pain, triggered by exertion, walking and standing; she had significant back pain and needed to stop and rest after only a minute of walking, even at a slow pace with frequent stops and starts; the claimant’s pain relief was not fully effective; and the claimant could not get on a bus, because she was unable to stand and wait at a bus stop. The judge found it arguable that the tribunal’s conclusion did not adequately consider regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 against the background of this evidence.

4. The Secretary of State supports the appeal, and consents to a decision without reasons. The claimant does not agree to a decision without reasons and has asked for a hearing of her appeal.

5. In accordance with rules 2 and 34 of the Upper Tribunal Rules I have had regard to the claimant’s wish for a hearing but have decided not to hold one; this is for the following reasons: first, the issues for me are issues of law; secondly, I am deciding the appeal in the claimant’s favour; thirdly, the only course that I can sensibly take is to remit the claimant’s case to be re-decided by a new tribunal; and the claimant will have the opportunity to participate in a hearing before the new tribunal. What follows are my reasons for the decision I have made.

6. The claimant has suffered for a long time from a number of serious medical conditions, including Crohn’s disease, bowel and gynaecological problems and back pain. She was awarded the standard rate of the daily living and mobility components of PIP with effect from 2 November 2016, having previously been in receipt of disability living allowance (DLA). She was awarded the standard rates of both components again in 2021 and in 2023. The award in 2023 was confirmed upon mandatory reconsideration and the claimant appealed.

7. The appeal came before the First-tier Tribunal on 23 September 2024. The claimant attended by telephone. It is clear from the statement of reasons that the tribunal approached the case in a thorough and conscientious manner, commencing with a summary of the claimant’s various medical conditions.

8. The Secretary of State’s representative sets out paragraphs 28-34 of the tribunal’s statement of reasons, so I shall not repeat them here. They include findings that on the PIP review form which the claimant completed in 2023 she ticked the box to say that she was able to walk 20-50 metres; that she went on occasional trips to the supermarket with her daughter-in-law and would hold on to the trolley for support to make it around the shop; that at the time of the decision she was able to walk around the hospital department at a slow pace on her own; that at that time she would drive to her GP and walk from the disabled parking space to the surgery; that she could walk for one minute and then her legs would feel heavy and she would need to rest. They sympathised with the claimant’s health problems, but her evidence indicated that she was “able to mobilise up to 20 metres with an aid in line with regulation 4 and therefore a greater award was not justified given the evidence at the date of the decision”.

9. The Secretary of State makes three main criticisms of the tribunal’s reasoning; I shall deal with each in turn.

10. First the Secretary of State submits that the reasoning leaves it unclear what distance the claimant was able to mobilise, observing that there is no finding as to the distance that the claimant would walk in the hospital or while shopping (I would add that there was also no finding as to the distance between the disabled car parking space and the GP surgery). The submission also refers to a statement by the claimant in a form completed in 2016 that she could only walk by moving each foot a couple of inches at a time. Read in context, that was a description of the position when the claimant was having an episode of a trapped nerve. The tribunal dealt with those episodes at paragraph 22 of the statement of reasons and found that at the date of the decision these would happen once or twice a month or a couple of months could go past before one occurred. On that basis, the tribunal was not in my view required to regard that description as being characteristic of the claimant’s walking ability.

11. It would have been more satisfactory if the tribunal had made findings as to the distances referred to above. Given the finding that the claimant could walk for one minute, it would also have been more satisfactory if there had been a finding of the distance the claimant could cover in one minute (though it has to be said that only covering a distance of up to 20 metres in one minute would be a very slow walking speed indeed). The tribunal may have taken it that, for example, 20 metres would be an unusually short distance to walk in the context of a typical supermarket and/or have thought it unnecessary to be more specific about these distances given the claimant’s statement on the review form that she could walk 20-50 metres.

12. But I consider that I should set the decision aside given (a) that the Secretary of State is dissatisfied with the reasoning even though it supported a decision in the Secretary of State’s favour and (b) that paragraph 33 of the statement of reasons erroneously refers to a distance of “up to 20 metres”. This was almost certainly a slip of the pen but creates some uncertainty as to the tribunal’s reasoning process.

13. Secondly, the Secretary of State submits that the tribunal failed to explore the level of pain that the claimant experienced when walking. The submission refers to evidence of the claimant’s pain on walking and submits that the tribunal failed to establish whether the claimant could perform the activity to the standard required by regulation 4 of the PIP Regulations. This is that that the claimant could walk safely (which means in a manner unlikely to cause harm to herself or anyone else), to an acceptable standard, repeatedly (which means as often as reasonably required) and within a reasonable period (which means in not more than twice the time it would take a person without a disability).

14. The tribunal did deal with whether the claimant could walk safely, concluding at paragraph 32 that there was no evidence of falls or accidents while walking and that the claimant could “reliably” manage a distance of 20-50 metres before having to stop due to pain. “Reliably” in this context is an acceptable substitute for “safely”.

15. I agree that “to an acceptable standard” includes without an unacceptable degree of pain. But there does not seem to have been any suggestion by the claimant that she experienced an unacceptable level of pain on taking any step; her evidence as recorded by the tribunal was that she could walk for a minute before having to stop due to pain. I accept that that does not rule out the possibility that the level of pain the claimant experienced while walking was unacceptably high even before it forced her to stop. Since I am in any event remitting the case to a new tribunal, the tribunal will be able to investigate further the claimant’s levels of pain while walking.

16. The judge who gave permission to appeal also found it arguable that the tribunal had not considered whether the claimant could walk “repeatedly”, which regulation 4 of the PIP Regs defines as meaning “as often as the activity … is reasonably required to be completed”. The claimant does not appear to have said anything about limits on the number of times that she could walk, and Secretary of State has not made any submissions about this, but the new tribunal should for completeness consider whether the claimant was able to walk as often as she reasonably needed to.

17. Thirdly, the Secretary of State observes that the tribunal did not engage with the issue of limits on the claimant’s walking ability due to fatigue. The submission refers to what the claimant had written in her reasons for appealing to the tribunal, which was that “the activity of moving around causes severe discomfort, pain and fatigue. Fatigue is a common feature in Crohn’s, colitis, pancolitis”. The reason may be that it was pain rather than fatigue that limited the claimant’s walking range, but the new tribunal should check this.

18. I am remitting the case to a new tribunal because it is not appropriate for me to remake the decision myself. This is best done using the expertise of a First-tier Tribunal panel. I have given some directions at the beginning of this decision. I stress that I have been concerned only with the legal question whether the tribunal gave adequate reasons for their decision. I have not reached any conclusion on what descriptors the claimant met and nothing in my decision is intended to suggest that I have. I have directed a hearing; it is very much in the claimant’s interest to attend it in person, since this makes discussion between her and the tribunal easier than on the telephone, but she is not obliged to. Nicholas Paines Judge of the Upper Tribunal Authorised for issue on 27 November 2025