DD 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 19 April 2024 under number SC053/24/00081 was made in error of law. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set the decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions. DIRECTIONS 1. This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing. 2. The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 19 April 2024. 3. The First-tier Tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the First-tier Tribunal's discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. 4. In reconsidering the issues raised by the appeal the First-tier Tribunal must not take account of circumstances which were not obtaining at the date of the original decision of the Secretary of State under appeal. Later evidence is admissible provided it relates to the time of the decision. 5. These Directions may be supplemented by later directions by a Tribunal Judge or Registrar in the Social Entitlement Chamber of the First-tier Tribunal. REASONS FOR DECISION Introduction 1. Permission to appeal was granted to the Appellant (the claimant) by Upper Tribunal Judge Church on 18 November 2024 (issued 4 December 2024). The appeal is supported by the Respondent (the Secretary of State for Work and Pensions). Neither party has requested an oral hearing of the appeal, and I consider that I can properly determine the case on the papers. 2. The Respondent consents to a decision without reasons. The Appellant‘s representative has not indicated whether the Appellant so consents. As the appeal is supported and I am remitting the case to be heard afresh by the First-tier Tribunal, it is appropriate to give fairly brief reasons for my decision. Background 3. The background to the appeal is summarised by the Respondent’s representative in her submission of 3 January 2025, at paragraph 2.1: “The claimant made a claim for PIP on 24/05/2023. A PIP2 questionnaire form dated 04/08/2023 was received from the claimant and he underwent a telephone consultation, on 29/09/2023. The claimant scored 0 points for the daily living descriptors and 0 points were awarded for the mobility descriptors. As such the claimant scored insufficient points to be awarded any rate of daily living component or any rate of the mobility component of PIP. A decision letter dated 12/10/2023 was issued to the claimant. The claimant requested a mandatory reconsideration of this decision, however the decision remained unchanged. The claimant lodged an appeal dated 25/11/2023 against the decision.” 4. The First-tier Tribunal heard the appeal on 19 April 2024 at an oral hearing which the Appellant attended with his daughter and a representative from Welfare Rights. The Respondent was represented at the hearing by a Presenting Officer. The tribunal dismissed the appeal and upheld the Respondent’s decision of 12 October 2023 that the Appellant did not satisfy any of the point scoring descriptors in relation to either the daily living activities or the mobility activities and so did not qualify for an award of PIP from 24 May 2023. The Appellant applied to the First-tier Tribunal for permission to appeal and was refused on 19 August 2024. Upper Tribunal grant of permission to appeal 5. The Appellant’s application for permission to appeal was renewed to the Upper Tribunal and was granted by Judge Church on 18 November 2024. In his reasons for granting permission, Judge Church observed as follows: “6. In your representative’s letter accompanying your UT1 application form, he said that the First-tier Tribunal had made errors in its fact finding and also in reaching decisions on your scoring that were inconsistent with the facts it found. He criticised in particular the explanation of the First-tier Tribunal’s scoring of your ability to wash and bathe and to dress and undress independently, but identified that similar errors may have been made in relation to the scoring of daily living activities 1, 3 and 9 and mobility activity 1. 7. In the First-tier Tribunal’s statement of reasons there is considerable recitation of evidence. It may not always be clear whether what is recorded as having been said in evidence was accepted by the First-tier Tribunal or not, and (if it was not) there is no clear explanation of why that evidence was rejected and why the First-tier Tribunal came to the conclusion it did in relation to the scoring of that particular descriptor. 8. I am persuaded that it is at least ‘arguable’ (with a ‘realistic’ prospect of success) that the First-tier Tribunal may have erred in law by failing to explain its decision making with adequate clarity. 9. This warrants a grant of permission to appeal to the Upper Tribunal. My grant of permission is unrestricted.” Errors of law in the First-tier Tribunal decision 6. In her helpful written submissions of 3 January 2025, the Respondent’s representative submits that “the Tribunal has erred in law in both its fact finding and duty to provide adequate reasons for its decision. The conclusion from the FtT on how they assessed the claimant’s functional abilities appears limited in their reasoning. It seems that what the FtT has provided when reading the SOR, in relation to the descriptors in dispute, appears to be no more than a rehearsal of evidence and a conclusion without an explanation”. 7. In relation to daily living activity 4 (washing and bathing), the Respondent’s representative notes that the First-tier Tribunal’s reasoning was recorded at paragraph 15 of the statement of reasons as follows: “15. The Appellant told the Tribunal that he had a shower once a week and this was because he had a routine in prison and he has continued with that routine. The Tribunal found that the Appellant would be able to get in and out of a bath or shower without restriction and had a shower once a week because this was the routine that he was used to. The Appellant told the Tribunal that his daughter thought that he should shower more often however, he did not agree. This was consistent with the information reported in the Universal Credit application which confirmed that the Appellant was able to carry out his daily activities independently and without prompting. The Tribunal found that the Appellant was able to wash and bathe independently.” 8. The Respondent’s representative submits that the First-tier Tribunal took a narrow view of the evidence in this regard. She notes that the Appellant had stated in the PIP2 questionnaire (at page 21 of the First-tier Tribunal appeal papers): “…my daughters have to help me realise that I need a shower as I do not see there is a problem. I can go 3-4 days without washing until my daughters emphasise I am smelling. My depression and anxiety makes some days unbearable to get out of bed and look after myself…”. She further notes the evidence of the Appellant’s GP at page 104 of the papers: “[The Appellant] has the following medical conditions: •Essential Hypertension •Mixed anxiety and depressive disorder •Probable right hip osteoarthritis […] His blood pressure control is suboptimal, he mainly attributes this to feeling stressed which is due to multifactorial factors. However, his symptoms of anxiety and depression affect him daily which adversely impact his sleep, motivation and cause anhedonia…” 9. The Respondent’s representative also refers to the evidence of the Appellant’s daughter, as set out in a letter dated 29 October 2023 (at page 100 of the papers), in which she explained the care and support she provided to her father. She stated that she visited the Appellant four times per week, and on other days provided prompting via the telephone. Of relevance to daily living activity 4, she stated: “during these weekly visits I will assist him to any appointments booked, shopping, showering and cleaning. Due to his anxiety his mood can lowen [sic] causing neglect to himself and the property”. The Respondent’s representative submits that the First-tier Tribunal’s reasons for its decision failed to engage with this evidence. 10. The Respondent’s submission concludes in relation to daily living activity 4: “4.8 Itis clear upon my reading of the SOR that in reaching its conclusion the FtT has clearly failed to take into consideration the difficulties the claimant had identified. Given the evidence as noted above, it was incumbent upon the FtT to use its inquisitorial function to establish if the claimant was able to wash and bathe, repeatedly and whether he required prompting to do so. The FtT’s decision and reasons lead me to infer that they did not adequately consider the claimant’s ability to wash and bathe in accordance with Regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013. As such, I submit that the FtT have erred in law in relation to daily living activity 4 and that further findings of facts are required.” 11. I agree that the First-tier Tribunal’s consideration of daily living activity 4 involved an error of law. The reasons the tribunal gave for concluding that the Appellant was able to wash and bathe unaided did not adequately address all of the evidence before it. In particular, the tribunal did not explain what it made of the evidence regarding the impact of the Appellant’s depression and anxiety on his motivation to carry out activities such as showering, and the assertion that as a result he required prompting from another person to be able to do so. The First-tier Tribunal therefore erred by failing to give adequate reasons for its decision. 12. The Respondent’s representative submits, and I agree, that the First-tier Tribunal erred in a similar manner in its consideration of daily living activities 1 (preparing food), 3 (managing medication), and 6 (dressing and undressing). The tribunal’s findings and conclusions regarding these activities in the statement of reasons at paragraphs 13, 17 and 16 (respectively) do not indicate what the tribunal made of the Appellant’s evidence in the PIP questionnaire, and his daughter’s evidence in her letter of 29 October 2023, that the Appellant lacked motivation to carry out these activities due to his mental health difficulties, and so required prompting to enable him to do them. 13. The Respondent’s representative concludes: “4.17 Although the FtT is entitled to give weighting to whatever evidence that it chooses, where there is conflicting evidence, it must in the first instance explore and consider it in a holistic manner and provide sufficient reasons explaining why it preferred the evidence that it had. In this appeal the FtT does not appear to have done that. There appears to be a distinct lack of reference to the evidence provided by the claimant and the medical evidence which demonstrate the long-standing nature of his health conditions. 4.18 Therefore, it could be said that had the FtT given appropriate consideration to all the evidence, including accurately identifying the effects of the claimant’s conditions, the FtT may have considered the claimant’s limitations. As such, I submit that the FtT have failed to give adequate reasons as to why evidence in parts was not accepted when deciding not to award points. 4.19 In view of the above, I am in agreement with the claimant’s representative that the inadequacy of reasons makes it difficult for a claimant to know whether a FtT applied the correct legal tests in assessing the evidence, making its findings of fact, and arriving at its decision.” 14. I agree that the First-tier Tribunal’s decision involved errors of law in relation to daily living activities 1, 3 and 6 (as well as activity 4), because the tribunal failed to provide sufficient reasons to enable the Appellant to understand why it reached the conclusions it did. Conclusion 15. It is not necessary for me to determine whether the First-tier Tribunal decision involved any further errors of law. If the tribunal had found that the Appellant required prompting in relation to each of the four daily living activities identified above, the Appellant would have received the 8 points needed to entitle him to an award of PIP. The errors were therefore material and I am setting the First-tier Tribunal’s decision aside. 16. I have concluded that it would not be appropriate for me remake the decision, as facts need to be found and the First-tier Tribunal, as an expert fact-finding body with the benefit of specialist members, is in a better position to undertake that task. The appeal is therefore remitted to the First-tier Tribunal. 17. It should be noted that the fact that this appeal to the Upper Tribunal has succeeded says nothing about the outcome of the First-tier Tribunal rehearing of the Appellant’s appeal against the Respondent’s decision of 12 October 2023. The new tribunal may reach the same or a different conclusion to the previous tribunal. Helen Robinson Judge of the Upper Tribunal Authorised by the Judge for issue on 16 August 2025