TC 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 involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with this decision and 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 4 September 2024.

3. The Appellant is reminded that the tribunal can only deal with the appeal, including his health and other circumstances, as they were at the date of the decision by the Secretary of State under appeal (namely 16 May 2023).

4. If the Appellant has any further written evidence to put before the tribunal and, in particular, further medical evidence, this should be sent to the HMCTS regional tribunal office within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).

5. The new First-tier Tribunal is not bound in any way either by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal. These Directions may be supplemented by later directions by a Tribunal Legal Officer, Tribunal Registrar or First-tier Tribunal Judge. REASONS FOR DECISION Introduction

1. The Appellant’s appeal to the Upper Tribunal succeeds and so there will need to be a completely fresh hearing of the original Personal Independence Payment (PIP) appeal before a new First-tier Tribunal (FTT). The Upper Tribunal’s decision in summary and what happens next

2. I allow the Appellant’s appeal to the Upper Tribunal. The decision of the First-tier Tribunal involves a legal error. For that reason, I set aside the Tribunal’s decision.

3. The Appellant’s case now needs to be reheard by a new and different First-tier Tribunal. I cannot predict what will be the outcome of the re-hearing. So, the new tribunal may reach the same, or a different, decision to that of the previous Tribunal. It all depends on the findings of fact that the new Tribunal makes. The factual background

4. There is a relatively complex chronology to this appeal, which is helpfully set out in the submission by the Secretary of State’s representative (at paragraphs 2.1 – 2.6). The short version is that the Secretary of State’s decision-maker made a supersession decision, ending the Appellant’s award of PIP. The Appellant appealed to the FTT. The FTT set aside that supersession decision and made an award of the standard rate of the PIP care component (but no award of mobility). The grounds of appeal

5. The Appellant’s grounds of appeal were as detailed on Form UT1. In summary, it was argued that the FTT had erred in its approach to mobility activity 1 (planning and following journeys). I gave permission to appeal.

6. Mrs H. Hawley, the Secretary of State’s representative in these proceedings, supports the appeal. She sums up her analysis as follows (SOR = Statement of Reasons): 4.2 It is my submission that the FtT has erred in law in both their fact finding and duty to provide adequate reasons for their decision. The conclusions 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 within at paragraphs 31-36 the SOR, regarding the claimant’s difficulties with the mobility activity 1, appears to be no more than a rehearsal of part of the evidence and conclusions without an adequate explanation.

7. For example, Mrs Hawley makes the following points: 4.6 The FtT appear to have made narrow and contradictory findings when detailing their reasons … why in their opinion the claimant did not satisfy any of the point scoring descriptors within mobility activity 1 — Planning and following journeys. The FtT in reaching their conclusions relied upon the evidence that the claimant: “…described travelling into Hull, Durham, and Newcastle by public transport. Although he sometimes gets lost and experiences anxiety, he has strategies that he uses in this situation. For example, when travelling home from university he called his mother and was then able to continue to his destination.” 4.7 The FtT’s reliance on this evidence on the face of it appears to be contradictory, as they seem to accept that he can get lost on those journeys and is reliant on his mother to provide support presumably to reduce his anxiety at becoming lost and then with her help and support is then able to complete the journey. Whilst the claimant is making these journeys unaccompanied, the fact that the FtT accept that the claimant “…sometimes gets lost and experiences anxiety…” implies this has happened on more than one occasion consequently it is unclear how this evidence demonstrates that the claimant is able to undertake and follow the route of an unfamiliar journey unaccompanied.

8. For completeness, I should add that Mr Cunningham, the Appellant’s representative, has no further observations. Analysis: a summary

9. I agree with the detailed analysis of the Secretary of State’s representative in her written submission on the appeal, which I have only summarised above.

10. I am accordingly satisfied that the First-tier Tribunal erred in law for those reasons. I therefore allow the Appellant’s appeal to the Upper Tribunal, set aside (or cancel) the Tribunal’s decision and remit (or send back) the original appeal for re-hearing to a new tribunal, which must make a fresh decision. What happens next: the new First-tier Tribunal

11. There will therefore need to be a fresh hearing of the appeal before a new First-tier Tribunal. Although I am setting aside the previous Tribunal’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to PIP for the period in issue and, if so, which component(s) and at what rate(s). That is a matter for the good judgement of the new Tribunal. That new Tribunal must review all the relevant evidence and make its own findings of fact.

12. In doing so, however, unfortunately the new Tribunal will have to focus on the claimant’s circumstances as they were as long ago as in May 2023, and not the position as at the date of the new hearing, which will obviously and regrettably be more than two years later. This is because the new Tribunal must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998). The supersession decision by the Secretary of State, which was appealed to the FTT, was taken on 16 May 2023. Conclusion

13. I therefore conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The case must be remitted for re-hearing by a new tribunal subject to the directions set out above (section 12(2)(b)(i)). My decision is also as set out above. Nicholas Wikeley Judge of the Upper Tribunal Authorised by the Judge for issue on 19 June 2025