CP 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 9 July 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 original decision by the Secretary of State under appeal (namely 27 April 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 Tribunal hearing the remitted appeal will be dealing with the closed period from 24 January 2023 to 10 July 2024 (see paragraph 15 below).

6. The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal (or indeed by the subsequent award). 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 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. The factual background to this appeal is not in dispute. The FTT confirmed the Secretary of State’s decision of 27 April 2023, disallowing the Appellant’s claim to PIP, having found that she scored 4 points for both the daily living and mobility activities. The grounds of appeal

5. The Appellant’s grounds of appeal were as detailed on Form UT1 and are helpfully summarised in the written submission by Mr R. Naeem, the Secretary of State’s representative:

1. The Tribunal erred in its approach when considering the claimant’s award of the Health Component of Universal Credit.

2. The Tribunal provided insufficient reasons to support its conclusion that the claimant can plan and follow the route of unfamiliar journeys unaided.

3. The Tribunal erred in its approach to assessing the claimant’s difficulties with using public transport.

4. The Tribunal erred with respect to section 12(8)(b) of the Social Security Act 1998 by considering matters that it should not have.

5. The Tribunal did not consider regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 in relation to her ability to take medication.

6. The Tribunal made insufficient findings regarding the claimant’s need to use an aid with respect to daily living activities 4 and

7.

6. In giving permission to appeal, I made the following observations: The Appellant’s grounds of appeal are (mostly) arguable. However, I am not sure there is much mileage in Grounds 4 and

5. Ground 4 lacks traction if there had been no real change in the Appellant’s functioning. Ground 5 overlooks the FTT’s findings in para

22. I should stress that I have given permission to appeal as the test to be applied at this stage is whether the appeal may succeed, not that it necessarily will succeed.

7. The Secretary of State’s representative in these proceedings supports the appeal and helpfully consents to the FTT’s decision being set aside. In summary, Mr Naeem supports grounds 1 to 3 inclusive, and so does not find it necessary to address the remaining grounds. I would just add that my doubts about grounds 4 and 5 remain.

8. So far as ground 1 is concerned, Mr Naeem agrees this involves an error of law for the following reasons:

2. Regarding the first appeal ground the claimant’s representative has submitted that the Tribunal erred in law as it has not adequately considered the claimant’s award of the Health Component for Universal Credit (“UC”). In providing its reasons the Tribunal noted at paragraph 23 of the Statement of Reasons (“SoR”) that [Tribunal bundle Addition O, page 5]: “Although [the claimant] is in receipt of the health component of Universal Credit however the work capability assessment considers her ability for work and work-related activity whereas PIP considers her ability to look after herself and mobilise.”

3. This is the sole reference to the claimant’s award of UC in the SoR. The position taken by the Tribunal is not a controversial one and is fairly common for understandable reasons, as the Tribunal as simply stated; both assessments consider different matters. However, in this case the Tribunal has stopped short of considering whether the evidence in relation to that award could have been relevant when it was making its findings in relation to the claimant’s reported functional restrictions. In the decision of UA-2024-000052-PIP UT Judge Wright considered the importance of a tribunal needing to evaluate evidence in relation to a UC award where there may be some read across to the relevant PIP activities. In that case Judge Wright had taken a view that a tribunal should not dismiss there being a parallel between descriptor 15c under Schedule 6 to the UC Regs and PIP mobility descriptor 1d, thus requiring a need to evaluate the evidence related to the descriptor 15c award. In the present case I cannot see any reference to the descriptors the claimant was awarded for their UC award, but there is in the appeal bundle a copy of a Universal Credit Medical Report Form in relation to an examination carried out on 01/02/22 [Tribunal bundle, pages 43-51].

4. Considering the presence of this report the Tribunal should have at a minimum referred to it, but it had not done so which raises questions as to whether this was considered at all. When reading the Tribunal’s sole reference to the UC award one may take the view that the Tribunal dismissed the contents of the UC85 report as it was seemingly focused on the claimant’s work-related activity. If that was the case, then the Tribunal overlooked evidence that would have been relevant as part of its fact finding to determine the claimant’s level of functional abilities to carry out activities such as moving around (mobility activity 2). For example, in the UC85 it is noted that the claimant met the criteria for Limited Capability for Work and Work-Related Activity in part due to “ongoing problems with palpations, shortness of breath and chest pain” which means that “she struggles with walking short distances” [Tribunal bundle, page 49]. From the contents of the UC85 report one can see that the information captured has a degree of read across to relevant PIP activities, notably when considering the claimant’s ability to move around. I submit it is odd for the Tribunal to have not referenced this evidence when considerable focus in the SoR was placed on it finding the claimant lacked credibility in her evidence. In such a case it would have been helpful to understand what evidence was considered and if not considered then there could have been the possibility that the UC85 report highlighted some consistency in the claimant’s evidence regarding her reported restrictions. Therefore, it is my submission that the Tribunal has erred in law with failing to adequately address what it made of the evidence in relation to the claimant’s UC award.

9. As for grounds 2 and 3, Mr Naeem’s position is as follows:

8. The Tribunal did not err when considering overwhelming psychological distress (“OPD”) in relation to mobility descriptor 1d, considering as the claimant had stated her difficulties were related to her anxiety. However, it is my submission that the Tribunal did err in law by taking a limited view of the evidence to reach its conclusion that mobility descriptor 1d was not satisfied. It is clear from the Tribunal’s limited reasons that it focused on journeys that were familiar to the claimant (driving locally and her daughter to school), which was erroneous as it did not make any findings in relation to any unfamiliar journeys she was making. The sole example is the trip abroad, but she was notably with her family, which does not demonstrate an ability to follow the route of an unfamiliar journey unaided. As noted earlier in this submission, the claimant’s reported difficulties arising from her anxiety are in relation to unfamiliar journeys which result in her panicking; as such, as the Tribunal did not make any findings in relation to her ability to follow the route of unfamiliar journeys it could not be in a position to determine there was a lack of evidence of OPD as she did not report to experience this when following the route of familiar journeys. It is my submission that the Tribunal’s conclusions were flawed due to its failure to make adequate findings of fact. Therefore, it is my submission that the Tribunal has erred on a material point of law.

10. For completeness, Mr Naeem also notes (at paragraph 10 of his written submission) that “If the claimant’s sole difficulty with using public transport was due to her not being able to walk to the bus stop, then the Tribunal was correct in taking the position that it had and did not err in this regard when considering the claimant’s ability to plan and follow journeys” – see further HO’H v SSWP (PIP) [2020] UKUT 135 (AAC). Analysis: a summary

11. I agree with the detailed analysis of the Secretary of State’s representative in his written submission on the appeal, as summarised above.

12. I am satisfied that the First-tier Tribunal erred in law for the reasons set out above. 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

13. 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 claimant is entitled to PIP (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.

14. 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 April 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 original decision by the Secretary of State, which was appealed to the FTT, was taken on 27 April 2023.

15. The new Tribunal will also note it is now dealing with the case as covering a closed period. This is because on 11 July 2024 the Appellant made a further and still unsuccessful claim for PIP. The DWP decision was taken on 3 September 2024. The FTT hearing the remitted appeal will therefore be dealing with the closed period from 24 January 2023 to 10 July 2024. Conclusion

16. 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 14 May 2025