KS 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 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 or member previously involved in considering this appeal on 20 January 2025. 3. The appellant is reminded that the new First-tier Tribunal can only consider the appeal by reference to their health and other circumstances as they were at the date of the original decision by the Secretary of State under appeal (namely 3 July 2024). 4. If the appellant has any further written evidence to put before the First-tier Tribunal relating to that period, including any further medical evidence, this should be sent to the relevant HMCTS regional tribunal office within one month of the issue of this decision. 5. The new First-tier Tribunal is not bound in any way 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 Caseworker, Tribunal Registrar or Judge in the Social Entitlement Chamber of the First-tier Tribunal. REASONS FOR DECISION Introduction 1. The appellant appeals against the First-tier Tribunal’s decision of 20 January 2025 refusing the appellant’s appeal against the decision of the Secretary of State of 3 July 2024 that the appellant was the Limited Capability for Work (LCW) element of Universal Credit (UC), but not the Limited Capability for Work Related Activity (LCWRA) element under Part 1 of the Welfare Reform Act 2012 (WRA 2012) and The Universal Credit Regulations 2013 (SI 2013/376) (the UC Regulations). 2. The First-tier Tribunal’s Statement of Reasons (SoR) was issued on 4 April 2025 and permission to appeal was refused by the First-tier Tribunal in a decision issued on 11 June 2025. The appellant filed the notice of appeal to the Upper Tribunal on 3 July 2025 (in time). 3. I determine the appeal without a hearing under rule 34(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, the parties having indicated that an oral hearing was not required and the appeal being supported by the Secretary of State. The grounds of appeal 4. The appellant appealed on the following grounds: 1. Under heading Finding of Facts – at 15, it states that the appellant is not under any specialist for her musculoskeletal problems. This is not a finding of fact and indicates that the tribunal had not considered all of the documentary evidence at pages 1 to 202 as stated. In my UC50 work capability Questionnaire, that I dated 07/05/2024, I stated that I was under Dr A Aladin, Consultant Orthopaedic Surgeon at Kingsmill Hospital …. This Specialist input is in connection to my difficulties with the right side and the hip bursitis problems. In my GP records and entries on Page 94 of the appeal bundle and dated 17/04/2024, it states against HISTORY -came in for injury to right shoulder, mentioned pain to right Trochanter, has been referred to Orthopaedics. I did have a cortisone injection in the right shoulder in early 2024; this was stated in my UC50 work capability form. 2. At 39, of the reasons for the tribunal's decision it states – The tribunal found that the use of aids would prevent any falls. At 42, it states – The appellant has some instability from a foot drop, a walking frame would prevent any instability. At heading 34, the Tribunal states that taking into account all of the evidence available the tribunal found that the appellant can repeatedly mobilise 50 metres within a reasonable time scale. The reason for my work capability reassessment was that I had reported a new health condition, namely my right shoulder problem. The tribunal have not taken into account or considered in my view how I would be able to mobilise 50 metres repeatedly with the use of reasonable aids with a shoulder problems, restricting me functionally. They state that I can mitigate falls with the use of aids, with the focus on my lower limbs problems; however, they have failed to consider my upper limb problems. 3. Furthermore, when the tribunal at 41, stated that they used medical expertise available and found that my hip bursitis although painful would not affect my walking; there is no indication as to what medical expertise they are referring. My grant of permission to appeal 5. By notice sent to the parties on 26 October 2025, I granted permission to appeal, observing as follows: I am satisfied on the basis of the grounds of appeal that there is arguably an error of law in the decision in that the First-tier Tribunal has apparently overlooked the appellant’s shoulder problem which prompted the re-assessment of her entitlement to benefits. It is arguable that if the First-tier Tribunal had taken this into account it might have materially affected the outcome of the appeal for the reasons the appellant identifies. The Secretary of State’s response to the appeal 6. By submission filed on 11 November 2025, the Secretary of State supports the appeal for the following reasons: 2. Upon review of the Tribunal’s SOR for the decision, it is clear that the Appellant’s assertion, that the Tribunal failed to take into account her upper limb issues is factually supported by the document. There is only a single reference to this issue at paragraph 10 of the SOR, where the Tribunal note the reasons for a further Work Capability Assessment taking place, with no further comment or findings of fact recorded. 3. This appears relevant as the available evidence does suggest a significant level of unilateral restriction present due to the condition impacting the Appellant’s right shoulder. The Appellant has difficulties in washing her hair, as she is unable to use her right arm for this task. She requires some assistance with dressing and relies only on her left arm to lift items, noting that she avoids use of the kettle due to this as she is right-handed (FtT bundle pages 103-104 & 174). The Appellant owns both a walking stick and zimmer frame but denies using these, preferring to rely on the physical support of her partner if necessary (FtT bundle pages 101 & 174). The reasons for this preference are not identified in the evidence bundle and absence of any reference in the SOR suggests they were not explored by the Tribunal. 4. The Appellant appears factually correct in her statement that the Tribunal’s reasons for their decision in relation to the Schedule 7 descriptor for activity 1 relate solely to her lower limb function. The Tribunal acknowledge at paragraph 42 that the Appellant suffers from instability due to a foot drop but they determined a walking frame would prevent any instability. There is no reference in this rationale as to why the use of such an aid would be reasonable, given that although the Appellant owns such an aid, she does not use one for the majority of the time. It is possible that had the Tribunal explored this issue, it may have been identified that the use of such an aid was not reasonable, given its reliance on bilateral arm function. 5. It may be the case that the Tribunal felt that the Appellant’s upper limb issues would not have reasonably prevented the use of such an aid, relying perhaps on the fact the Appellant remains able to safely drive an automatic car. However, if this was their view, the SOR remains silent on the issue, suggesting the issue was not explored in detail during the hearing. It is submitted the failure to make findings in relation to this co-morbidity and its impact or lack of impact on whether an aid could reasonably be used represents a material error in law. 6. It also appears relevant, that the contemporary findings of the PIP assessment and the recommendation of the examining Healthcare Professional for that benefit was that the Appellant can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided. The Tribunal dismissed the relevance of the PIP determination at paragraph 39 of the SOR holding: “The tribunal found that the test for mobilising under the UC regulations was different to the PIP test. Under the UC regulations mobilising is assessed using aids which are normally or could reasonably be worn or used. The tribunal found that the use of aids would prevent any falls.” 7. As highlighted by my emphasis on the text of the descriptor choice for activity 2 of the PIP mobilising component, this assertion is factually inaccurate. The difference between the mobility activities of the PIP assessment and the Work Capability Assessment, is not whether aids are considered; as is evident in the descriptor name, the Appellant was determined to be unable to stand and walk more than 20m aided. The difference between the tests is the concept of mobilising for the purposes of the WCA is not restricted to bipedal motion; mobility in an aid used in a seated position such as wheelchair is considered whereas for the PIP assessment only a person’s ability to stand and walk is considered. 8. The only aid explicitly cited by the Tribunal in the SOR is a walking frame, i.e. an aid used to assist a person in standing and walking. As such their findings conflict significantly from the determination given in relation to the Appellant’s entitlement to PIP. It may be that the Tribunal chose to put less weight on the findings of the PIP assessment for reasons other than those identified in the SOR, perhaps findings the conclusions the of examining HCP for Universal Credit more medically consistent. However, if this was the case it is submitted that where there is conflicting evidence, it must in the first instance explore and consider it in a holistic manner and then provide sufficient reasons explaining why it preferred the evidence that it did. 9. It is possible that when the Tribunal refers to aids at paragraph 39, they intended this to cover the use of an aid not prevalent on the Appellant’s ability to stand and walk, such as a manual wheelchair. If this was the case however, it is submitted that the failure to consider how the Appellant’s right shoulder issue would impact the use of such an aid, would also represent a material error in law. 10. If my submission that this error in law is material to the outcome of this case is accepted, it is submitted this fact alone should be sufficient for the matter to be remitted for rehearing by a freshly constituted First-tier Tribunal. Accordingly, the matters raised in the Appellant’s remaining grounds may be subsumed into any rehearing. 11. It is the Respondent’s submission that the Tribunal have erred in law, and the error is material. As such it is respectfully requested the appeal be remitted and reheard by a different tribunal. My decision on the appeal 7. The Upper Tribunal may only allow an appeal under s 12 of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) if it finds that the decision of the First-tier Tribunal involved an error of law. 8. Errors of law include misunderstanding or misapplying the law, taking into account irrelevant factors or failing to take into account relevant factors or failing to give adequate reasons for a decision. An error of fact is not an error of law unless the First-tier Tribunal’s conclusion on the facts is perverse. That is a high threshold: it means that the conclusion must be irrational or wholly unsupported by the evidence. An appeal to the Upper Tribunal is not an opportunity to re-argue the case on its factual merits. These principles are set out in many cases, but see in particular R (Iran) v SSHD [2005] EWCA Civ 982 at [9]-[13]. 9. So far as the adequacy of reasons is concerned, the Upper Tribunal applies the guidance in the Practice Direction from the Senior President of Tribunals: Reasons for decisions(4 June 2024), published on http://www.judiciary.uk. 10. In this case, the First-tier Tribunal directed itself to aids and their potential to prevent falls, but it did not grapple with whether such aids were realistically and reasonably usable by this appellant given her right‑shoulder impairment, notwithstanding that the shoulder problem was the basis for the reassessment. The SoR’s single mention of the shoulder (as background) is insufficient engagement with a plainly material issue that could affect: (i) whether an aid can in fact be used safely and effectively and (ii) whether it is reasonable to expect such use for Schedule 7 (activity 1: mobilising) under the UC Regulations. 11. That omission amounts to an error of law. A tribunal must make findings on material matters necessary to resolve the issues before it and to explain why a party has won or lost. The Appellant’s upper‑limb impairment was squarely in issue and potentially determinative of the mobilising activity. 12. Further, although the First-tier Tribunal was correct in general terms that the test for mobility activity 2 of PIP is different to that for LCWRA, the Tribunal at [39] is wrong to say at [39] of the SoR that the difference between the two is that mobilising is assessed using aids for the purposes of LCWRA but not for PIP. As the Secretary of State rightly points out, a claimant only satisfies mobility activity 2 description 2e if they “can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided”. In the claimant’s case, therefore, the use of aids was not a relevant difference between the two tests and the Tribunal’s reasons are therefore inadequate to explain why it reached a conclusion that apparently conflicts with the PIP assessment (seeR(M) 1/96). 13. These errors are material. If the upper‑limb impairment limits or precludes the practical, safe use of a walking frame, wheelchair or similar aid, the First-tier Tribunal could permissibly have concluded that the Appellant meets Schedule 7 (activity 1) (mobilising) or that she should be treated as having LCWRA under Schedule 9 (substantial risk), depending on the full findings. Conclusion 14. In light of the above, the appropriate course is to set aside and remit under section 12 TCEA 2007: fresh, detailed fact‑finding is required on the Appellant’s functional ability, the practical use and reasonableness of aids, and the proper treatment of the conflicting evidence. The Secretary of State expressly supports remittal. Holly Stout Judge of the Upper Tribunal Authorised by the Judge for issue on 11 February 2026