FH v The Secretary of State for Work and Pensions (PIP)

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 differently constituted 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 has requested 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 2. I gratefully adopt the factual summary set out in the respondent’s submissions: The Appellant made a claim for PIP via telephone on 05/06/2023. A PIP2 questionnaire form was received from the Appellant on 15/06/2023 [ The Appellant attended a Healthcare Professional (HCP) consultation via video link on 08/08/2023. A decision letter dated 21/08/2023 was issued to the Appellant. The Appellant scored 0 points under the Daily Living (DL) descriptors of PIP, and 4 points for the Mobility descriptors. As such the Appellant scored insufficient points to be awarded any rate of the daily living component or any rate of the mobility component of PIP. The Appellant requested a mandatory reconsideration of this decision, however the decision remained unchanged. The Appellant lodged an appeal at the FtT against the decision to disallow his PIP claim. The FtT upon hearing the Appellant’s appeal affirmed the decision made by the Secretary of State Thus, the FtT decided that the Appellant scored insufficient points to be awarded any rate of the daily living component or any rate of the mobility component of PIP. The grounds of appeal 3. UTJ Church gave permission to appeal on these grounds: a the FtT failing to exercise its inquisitorial jurisdiction to assess the HCP report critically, and instead treating the report as being an “objective” account of difficulties, contrary to the approach counselled in CDLA/4127/2003 at paragraphs [11]-[22]), and failing to exercise its inquisitorial function to make findings on matters which were not raised (or at least not recorded as having been raised) during the assessment by the HCP; B. failing to make findings of fact in relation to daily living activity 1 relevant to claims of difficulties with concentration (instead basing its reasoning instead on a lack of memory problems); c. failing to make adequate findings of fact in relation to ability to perform the activities in accordance with the requirements of regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013. d. failing adequately to explain why a bed was not being used as an aid given the differing approaches of the Upper Tribunal authorities on the issue in CW v SSWP [2016] UKUT 197 (AAC) and NA v SSWP [2015] UKUT 572 (AAC); and e. identifying multiple alternative ways of carrying out the task of dressing and undressing contrary to the guidance in PE v SSWP [2016] AACR 10 The respondent’s position 4. On the question of preferring the HCP report, the secretary of state says the FtT disallowed the Appellant’s claim on the basis that the Appellant’s evidence did not correspond with evidence contained in the HCP report. The FtT in reaching its decision also preferred to rely on the HCP report merely because it considered the HCP report accurately recorded in what was a thorough and nuanced report by a medical professional with nothing to gain by mis-recording anything the Appellant said I submit that the FtT erred in law when it failed to exercise its inquisitorial jurisdiction to assess the HCP report critically. Instead, the FtT treated the report as being an “objective” account of the Appellant’s difficulties and failed to exercise its inquisitorial function to make findings on matters which were not raised (or at least not recorded as having been raised) during the assessment by the HCP. The FtT did not consider the possibility that the HCP report may have been inaccurate. Also, it is noteworthy that the HCP did not have the opportunity of meeting and physically assessing the Appellant’s condition. The HCP merely recorded the information which the Appellant had relayed via video link and analysed same in reaching the findings of the HCP report It is settled law that in order to reach a supportable conclusion, the FtT has to test the strengths and weaknesses of the evidence and compare it to the other evidence after it had been similarly tested. To do this, it had to consider a number of factors including (but not limited to) the reliability of the evidence in terms of, for example, its source, its internal consistency, and its relationship to the other evidence. Although the FtT has a discretion to prefer one evidence over another, I submit that where there is a contradiction between evidences in a case, the FtT ought to take care in analysing the evidences and provide adequate reason as to why it prefers one evidence over another 5. On the second question the respondent says “the FtT did not accept the Appellant’s evidence that he might leave the gas on as there was no mention in the medical records of memory problems. Considering the Appellant’s evidence in the HCP report that he “…does not take anything for his mental health he felt not helpful so stopped this his Gp is aware he thinks it was citalopram tablets.”, the FtT ought to have made findings of fact relevant to the Appellant’s claims of difficulties with concentration and his ability to prepare a simple meal for one person safely” 6. On the third issue the respondent says “I agree with the UT Judge that the FtT erred in law its approach to the evidence before it, which impugned their analysis of regulation 4(2A) as it applies to all of the PIP activities in issue” “…the FtT should have made findings to establish whether the appellant could perform the daily living activity 6 repeatedly and within a reasonable timeframe. In accordance with PS v SSWP [2016] UKUT 0326 (AAC), pain is a relevant factor when considering whether an Appellant can perform an activity to an acceptable standard. I submit that the FtT ought to have made findings as to whether the Appellant could reliably put on his socks on over 50% of the days in the required period or whether he required help such as an aid to complete the activity to an acceptable standard. For the remaining PIP activities, from the excerpts of the FtT in the SOR stated above, it can be seen that the FtT limited itself to whether or not the Appellant could manage to carry out the activities to a certain extent. I submit that the FtT failed to go a step further to determine whether these activities could be carried out safely, to an acceptable standard, repeatedly and within a reasonable time period in accordance with Regulation 4(2A) of the Social Security (PIP) Regulations 2013. This amounts to an error of law. 7. On the fourth and fifth issues the respondent does not agree that there was an error of law, saying “the FtT rightly applied the principle laid down in CW v SSWP [2016] UKUT 197 (AAC), which was to the effect that sitting down to dress is an acceptable way of performing the activity, hence a bed is NOT an aid to dressing/undressing. According to UT Judge Jacobs: “35. The tribunal also applied its approach correctly. The evidence was that the claimant sat in order to put on her jeans and take them off because of impaired balance. It is normal to carry out that aspect of dressing and undressing while standing, but it is just as normal to do so sitting down for convenience. Balance for that part of dressing and undressing is not required in order to carry out the activity in a normal manner. Needing to sit does not show an impaired function for carrying out the activity, but only for one manner of carrying out the activity.” This reasoning and approach of the UT was adopted by other UT Judges in subsequent cases. For instance, in the cases of ED v. SSWP CPIP/282/2016 and AP v SSWP [2016] UKUT 0501 (AAC), Judge Markus QC of the UT supported the reasoning of Judge Jacobs in the CW case. I also submit that the FtT did not wrongly rely on slip on shoes to the detriment of the Appellant because by virtue of the reasoning of the UT in the cases of PE v SSWP [2016] AACR 10 and JM v SSWP [2016] UKUT 0542 (AAC), slip on shoes are a reasonable practical alternative to shoes with shoelaces 8. On the first ground of appeal the appellant had said: At paragraph 10 of the statement of reasons the tribunal noted that the appellant’s representative was challenging the accuracy of the HCP report. The tribunal did not agree and considered it a thorough and nuanced report by a medical professional with nothing to gain by mis recording anything the appellant had said. In the decision CDLA/4127/2003 at paragraph 22 it was indicated that a first tier tribunal must not use its inquisitorial power selectively and referred to the tribunal in that case relying on the HCP report as objective when it was not objective. It was also noted that the tribunal in that case was not prepared to subject the HCP report to appropriate scrutiny and consider the deficiencies that might be in the HCP report. In this respect attention is drawn to paragraphs 11 to 22 of that decision where there is strong advice for tribunals to be aware of the potential unreliability of HCP reports. It is submitted that the tribunal in the present case also did not consider that the possibility of the HCP report containing inaccuracies and as a result erred in law. 9. on the last two issues, the appellant had said: At paragraph 22 of the statement of reasons the tribunal made reference to the fact that a bed used to dress could not constitute an aid in relation to Activity 6—presumably relying on the decision CW v SSWP 2016 UKUT 197 AAC. The tribunal did not make reference to the decision of NA v SSWP PP 2015 UKUT 572 AAC which held that a bed used to sit on to get dressed could constitute an aid in relation to Activity 6. It is submitted that the tribunal did not engage with the different approaches taken by the upper tribunal judges in CW and NA and go on to make adequate findings and to provide sufficient reasons why a bed in this particular case could not constitute an aid for the purposes of Activity 6. At paragraph 22 of the statement of reasons the tribunal stated that even if the appellant was in pain when tying his shoelaces and even if the problem could not be solved by sitting down, the wearing of slip on shoes was considered an acceptable alternative to laced shoes for PIP purposes. It is submitted that this approach is not consistent with the guidance provided in [2016] AACR 10 (PE v SSWP)—paragraph’s 12 to 12. In that decision the judge emphasised that PIP involves a functional assessment which in turn identifies the claimant’s limitations. The judge in that decision referred to the danger of defining out of consideration the effects of the claimant’s disabilities. In the decision of [2016] UKUT 542 (AAC) the judge referred to not defining away multiple functional problems by identifying multiple alternatives as this would restrict the functional test to only part of the Activity of dressing. It is submitted that in the present case the appellant had identified a limitation, namely bending down to tie his shoes laces, in relation to the performance of Activity 6. The tribunal’s response was to provide a solution by removing the functional problem. This could be achieved by identifying an alternative way of performing the Activity of Dressing, that is, the wearing of slip on shoes—refer to paragraph 22 of the statement of reasons. In the decision of [2016] AACR 10 (PE v SSWP) at paragraph 19 it was noted a tribunal must always consider socks and shoes because that is what paragraph 1 of Part I of Schedule 1 requires. It is submitted that in the present case the tribunal did not address adequately the functional problem which the appellant had with socks and shoes as required by paragraph 1 Part 1 of Schedule 1 and therefore did not make adequate findings and provide sufficient reasons in relation to the appellant’s limitations when performing Activity 6. It is submitted that the tribunal was in effect side stepping an assessment of the appellant’s limitations in relation to the performance of Activity 6 Decision Ground one 10. This is what the FtT have to say about their assessment of the HCA report Medically, Mr H suffered from anxiety and depression, obsessive compulsive disorder, underactive thyroid, lower back pain and sciatica; but it was the latter – his lower back pain and sciatica – which he and his representative claimed caused his functional difficulties for PIP purposes. Broadly, we considered Mr H often exaggerated the extent of his lowerback pain – for example, he stated in the hearing that, when it had started in June 2023 (when he had claimed PIP) he “couldn’t really move for 2-3 months” yet, as can be seen from the particular activities addressed below, and in the bundle, he had also described moving and doing things a great deal. Indeed, only 2½ months after the date of decision – in early November 2023 – Mr H had, according to an NHS record on page 102 of the bundle, been arrested for jumping on cars and assaulting two police officers. Although this had obviously occurred after the date of the decision, it suggested that his restrictions at the time of the decision would not have been as severe as he claimed because it was medically unlikely he would have improved so quickly in those intervening 2 ½ months. 10. Similarly, for the reasons given in the paragraphs immediately below, we concluded that Mr H’s evidence to us was unreliable as to detail because it was so inconsistent with what he had said before. We considered what he had said in his PIP medical assessment with the healthcare professional (HCP) to be the most reliable of his evidence because it had been said at the closest point in time to the decision under appeal and, we considered, accurately recorded in what was a thorough and nuanced report by a medical professional with nothing to gain by mis-recording anything Mr H said. Indeed, although Mr H’s representative often challenged the report in her submission, she provided no compelling basis on which it could be viewed as inaccurate (she stated simply that it was incorrect) because Mr H clearly could not remember what he had said in the assessment 11. Notwithstanding the consensus between the appellant and respondent that the SoR reveals an error of law, I do not agree. The FtT’s approach was a proper one. 12. What needs to be appreciated is that the FtT were considering a range of different accounts given by the appellant at different times. They prefer the account given by him to the HCP for reasons that seem to be to be at the least adequate and rational. (Whether I agree with them is of course not the question, provided the approach taken was reasonable). They reject his other accounts for reasons that again seem to be at least adequate and rational. 13. I do not think it adds anything to say that “The FtT did not consider the possibility that the HCP report may have been inaccurate”, or as the appellant says “did not consider that the possibility of the HCP report containing inaccuracies”. One has to remember that FtTs are busy tribunals. I am prepared to assume (in the absence of reasons to suspect the contrary) that they are aware that any evidence they receive may be unreliable, and are appropriately curious, without the need for a formal incantation of that possibility to appear each time a piece of evidence is referred to in a statement of reasons. Given their stated reasons for considering the appellant’s other accounts to be unreliable (I note in particular the evidence of an arrest for jumping on a police car and assaulting two police officers, which might be thought an adequate explanation of a degree of scepticism about the appellant’s accounts of his physical limitations) it is unsurprising that they considered the HCP account to be the best of the available evidence. 14. Nor do I see what it adds to complain that there has been a lack of an inquisitorial approach. What further inquiries or questions is it said the FtT should have undertaken? They had all of the available accounts. They preferred one to another for reasons that appear to me to be adequate and rational. If the appellant were to succeed on this ground he would have had to point to some specific gap in the evidence or line of inquiry likely to have informed the decision that was overlooked. He has not. Applying my own inquisitorial approach I see no gap in the evidence. An inquisitorial approach does not require an FtT to embark on endless inquiry in the Micawberish hope that something may eventually turn up that could assist a claimant. 15. Nor do I understand what is meant by the appellant’s statement that “a first tier tribunal must not use its inquisitorial power selectively”. If anything the opposite is the case. An active inquisitorial duty arises where there is reason to suppose the evidence before an FtT on a particular issue is materially incomplete. In that case, in contrast to adversarial litigation, it is incumbent on an FtT itself to take steps to obtain the missing information, (or at least to consider doing so balancing any other relevant considerations). Obviously no such duty arises where the evidence on a particular issue is complete. There is no evidential gap to which the duty could meaningfully attach. In that sense an FtT must be selective. 16. Nor does an “inquisitorial” duty arise merely because the evidence, although complete, points in different directions or is imperfect in other ways. In such cases the FtT must apply its judgement to the material it has, difficult though that may be, and make reasoned findings. It may expect the exercise of that judgement to be respected on appeal, subject always to rationality. 17. I do not consider that CDLA/4127/2003 assists the appellant. It is evident in that case that the Secretary of State had interfered with the medical evidence. One can readily understand a warning, given in strong terms, not to accept such evidence uncritically. I noted above that in some cases there may be a reason to be on enquiry as to the reliability of a certain piece of evidence, and if there is it might usually be necessary to address and resolve that issue. 18. CDLA/4127/2003 is not authority for the proposition that all medical reports (still less all claimant accounts recorded in medical reports) must be approached with an unusual degree of scrutiny or suspicion. No such general rule applies. In each case the scrutiny to be given to any piece of evidence depends on the circumstances and is a matter for the reasonably exercised judgement of the FtT as the fact-finding body. 19. As I will allow this appeal on other grounds and as the result of that is that there will be a rehearing, I will add here for the avoidance of doubt that simply because I have decided that this approach was lawful, and the first ground of appeal fails it does not follow that preferring the HCP account was the only conclusion that could have been taken or that a future FtT is bound as a matter of law to reach the same conclusion. My finding is only that it was within the lawful range of possible conclusions for this FtT to have done so. Ground two 20. As to ground two, were this the only possible live ground of appeal I might well have been minded to reject it. In context it seems to me there is very little difference between a suggestion that the Appellant might leave the gas on when cooking because of a lack of concentration, and a suggestion that he might leave the gas on when cooking because of a lack of memory. Read charitably (but not unreasonably so) the SoR seem to me to be saying simply that there is nothing in the medical records to support a claim that there is a risk that he will leave the gas on because of some cognitive or mental deficit, the exact nature of which is immaterial to the conclusion. Be that as it may as the FtT will have to reconsider the case afresh I will also allow the appeal on this ground, from an abundance of caution. Ground three 21. The ground of appeal of real substance, and the one which requires the case to be reheard, is ground three, the treatment of regulation 4(2A). I agree that there is globally a lack of findings or reasoning on whether the appellant could not only perform various activities but could do so safely, to an acceptable standard, repeatedly and within a reasonable time period in accordance with Regulation 4(2A). As part of considering that question it will be necessary to make findings as to whether he was in pain while carrying out a particular activity and if he was, whether that meant that regulation 4(2A) was not satisfied. This needs to be addressed specifically with reference to the evidence fir each activity. The decision is inadequate in this regard and for that reason must be remitted and retaken. Grounds four and five 22. I agree with the respondent that the remaining grounds of appeal fail. There is nothing in the point that the FtT should have resolved a difference in approach between NA v SSWP 2015 UKUT 572 AAC and CW v SSWP 2016 UKUT 197 AAC on whether sitting on a bed to dress amounts to the use of an aid. First, it would not be for an FtT to resolve such a difference. Second, there is in fact no such difference see CW paragraph 18. The point made in CW is that sitting on a bed is a “usual or normal” way to perform the activity of dressing. Therefore a bed is not an aid to dressing. UTJ Jacobs says “By employing [a bed], the person is not demonstrating a limitation with the functions that are required for that aspect of the activity. Rather, the person is demonstrating a limitation with one manner of carrying out that aspect of the activity” CW paragraph 32. This is in substance what the FtT say at paragraph 22 of their SoR. There is no error of law. 23. Similarly the criticism of the FtT’s reference to slip on shoes goes nowhere in light of JM v SSWP [2016] UKUT 0542 (AAC) Conclusion 24. 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 fresh tribunal. Without limiting the issues with the FtT will reconsider I draw attention to the fact that it should, pay particular attention to regulation 4(2A) in its reconsideration. Stephen Hocking Deputy Judge of the Upper Tribunal Authorised by the Judge for issue on 17 July 2025