KS v The Secretary of State for Work and Pensions

The decision of the First-tier Tribunal sitting at North Shields dated 5 April 2023 under file reference SC232/22/00154 involves an error on a point of law. The appeal against that decision is allowed and the decision of the Tribunal is set aside. The matter is remitted to a differently constituted tribunal for a complete rehearing. The new tribunal must considerand make relevant findings as to whether or not the claimant satisfied the criteria to be awarded the daily living component and/or the mobility component of personal independence payment from and including 9 May 2018 to and including 1 September 2022. In so doing the new tribunal should in particular have regard to the claimant’s amended grounds of appeal dated 30 October 2024 and his submissions dated 6 March 2025 and the submissions of the Secretary of State dated 3 February 2025. This decision is made under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007. REASONS

1. This is an appeal, with my permission, against the decision of the First-tier Tribunal sitting at North Shields on 5 April 2023.

2. I shall refer to the appellant hereafter as “the claimant”. The respondent is the Secretary of State for Work and Pensions. I shall refer to her hereafter as “the Secretary of State”. I shall refer to the tribunal which sat on 5 April 2023 as “the Tribunal” and the tribunal to which I am remitting the matter as “the new tribunal”.

3. The claimant originally appealed against the decision of 3 December 2015 that he was entitled to 0 points for the daily living component and 0 points for the mobility component. He was not therefore entitled to either component of personal independence payment from and including 9 May 2018. The decision was subsequently reconsidered, but not revised, on 10 May 2022. He had previously been in receipt of the middle rate of the care component and the lower rate of the mobility component of disability living allowance, which was in payment until 6 January 2016, the last day of the 28 day period which started on the first payday after the previous decision on 3 December 2015.

4. The matter came before the Tribunal on 3 May 2016 when the claimant’s mother, who is his appointee, appeared and gave oral evidence. The appeal was allowed.

5. The Tribunal found that the appellant was entitled to 11 points for the daily living component and 4 points for the mobility component of personal independence payment. He was therefore entitled to the daily living component, but not the mobility component, of personal independence payment at the standard rate from and including 6 January 2016 to and including 5 January 2019.

6. Following a planned award review, that decision was superseded and the claimant’s award was terminated with effect from 9 May 2018. The claimant did not dispute that decision at the time.

7. The basis of his appeal now arose from the LEAP process. A LEAP (Legal Entitlement and Administrative Process) exercise is a process which enables a governmental department to review entitlement in circumstances where they “failed to make payment in good faith or through administrative error”. Following MH v Secretary of State for Work and Pensions (PIP) [2016] UKUT 531 (AAC); [2018] AACR 122 (28 November 2016), which was concerned with mobility activity 1 and which considered the meaning of “overwhelming psychological distress” in relation to the activity of planning and following journeys, confirming that it is relevant when considering one’s ability to follow the route of unfamiliar and familiar journeys) and RJ, GMcL and CS v Secretary of State for Work and Pensions (PIP) [2017] UKUT 105 (AAC) [2017]; AACR 323 (9 March 2017), which took as its focus the meaning of “safely” in regulation 4(4)(a) of the Social Security (Personal Independence Payment) Regulations 2013 (and which confirmed that, when assessing each descriptor, consideration must be given as to whether there is a real possibility which cannot be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case), the Secretary of State has committed to carry out a LEAP process in respect of decisions made since those judgment dates.

8. The claimant then requested a mandatory reconsideration of the supersession decision made on 9 May 2018 and on 10 May 2022 the decision maker decided not to revise the decision for official error. The claimant then appealed against the decision of 9 May 2018.

9. The matter came before the Tribunal on 5 April 2023 when the claimant’s mother again appeared on her son’s behalf and gave oral evidence. No presenting officer was present. The appeal concerned the closed period from and including 9 May 2018 to and including 1 September 2022 because on 2 September 2022 the claimant had made a further application for personal independence payment and was awarded the enhanced rate of both components from and including 2 September 2022 to and including 29 November 2028. The appeal was refused.

10. The Tribunal found that the appellant was entitled to 0 points for the daily living component and 0 points for the mobility component of personal independence payment. He was not therefore entitled to either component of personal independence payment for the closed period from and including 9 May 2018 to and including 1 September 2022.

11. The claimant sought permission to appeal against that decision. The District Tribunal Judge refused permission to appeal on 22 August 2023 and that decision was issued to the parties on 8 September 2023. He applied to the Upper Tribunal on 7 October 2023 and sought an oral hearing of the application for permission to appeal, which I directed on 10 November 2023. It was then necessary to compile a list of case for me to hear in Newcastle.

12. On 12 November 2024 I heard the appellant’s application for permission to appeal in Newcastle when his mother, acting on her son’s behalf, appeared with counsel, Mr Edward Arash-Abedian. The appellant himself did not appear. On 30 October 2024 Mr Arash-Abedian had submitted a skeleton argument, essentially recasting the grounds of appeal, which the appointee herself had originally submitted on her form UT1. Mr Arash-Abedian made crisp and succinct submissions in support of the application.

13. To the extent necessary, I granted permission to the claimant to rely on those amended grounds of appeal. They were in summary that “Ground 1 – the FTT failed to recognise that a live issue was raised by the SSWP’s decision to withdraw the appellant’s PIP entitlement during the currency of the award made by an earlier FTT. Consequently, the FTT failed to properly treat the 2018 decision as a supersession decision, and thus failed to consider whether all of the conditions for supersession had been made out. Ground 2 – the FTT was wrong to find that the decision in RJ v SSWP [2017] UKUT 105 (AAC) did not apply to the appellant’s case and that there was therefore no basis to change the 2018 decision accordingly. Ground 3 – the FTT was wrong to find that the decision in MH v SSWP (PIP) [2016] UKUT 531 (AAC) did not apply to the appellant’s case and that he was therefore not entitled to points under mobility activity

1. Further, the FTT’s findings in respect of his entitlement under mobility activity 1 were irrational/perverse. Ground 4 – the FTT was wrong to hold that it was confined to a consideration of the RJ and MH cases only, and that it could not consider all aspects of his claim for PIP. Ground 5 – the FTT failed to consider and/or provide adequate reasons for the weight to be given to the health professional consultation report on which the 2018 decision was based”.

14. On 13 November 2024 I acceded to the claimant’s application and granted him permission to appeal. It seemed to me that there was an arguable case that the Tribunal erred in law for the reasons set out in his amended grounds of appeal.

15. On 3 February 2025 the Secretary of State provided submissions and supported the appeal. Shealso consented to a decision without reasons under rule 40(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

16. The Secretary of State submitted that “4.1 The appeal is against the DM’s decision of 09/05/2018 which terminated via supersession an earlier FtT’s award. The FtT’s jurisdiction to hear an appeal over 13 months after a decision has been made depends on whether the Secretary of State has considered an application which is, properly construed, an application on the ground of ‘official error’. In my submission the Secretary of State did consider such an application as the DM on 09/05/2018 would not have considered MH v SSWP and RJ v SSWP when making their decision. 4.2 Firstly, in response to grounds 1 and 4 above, the FtT on 05/04/2023 was required to consider whether and how the available evidence allows the earlier FtT’s award to be superseded, with all grounds of supersession in principle being available to the FtT. A new healthcare professional [HP] report was provided on 09/04/2018 which permits a supersession under regulation 26(1)(a) of the D&A Regs 2013. When carrying out the reconsideration of a claimant’s needs in the light of the available evidence that regulation 26(1)(a) of the D&A Regs permits (KB v Secretary of State for Work and Pensions (PIP) [2016] UKUT 537 (AAC)at [12]-[13]), a FtT can and should do so in the light of both any new case law that section 27 of the Social Security Act 1998 does not prevent it from applying and any new relevant factual matters the available evidence brings to light. The FtT thereby erred in law by limiting its consideration to the application of MH and RJ. 4.3 Turning to the remaining grounds, I submit that the FtT erred in law by its failure to make adequate findings, particularly in relation to the claimant’s ability to go out alone or travel independently or provide adequate reasons for preferring the evidence provided by the HP. 4.4 If the Upper Tribunal Judge accepts my submission that the FtT has erred in law, I invite them to set aside the decision and remit the appeal for rehearing by a differently constituted Tribunal, with appropriate directions for its determination.”

17. The claimant replied on 6 March 2025 that “5. Without prejudice to the concessions made by the Secretary of State in supporting the appeal, the Appellant does not consent to a decision without reasons and instead requests that this matter be dealt with by way of an oral hearing before the Upper Tribunal for the reasons set out below.

6. First, Ground 4 of the appeal is that “the FTT was wrong to hold that it was confined to a consideration of the RJ v SSWP [2017] UKUT 105 (AAC) and MH v SSWP (PIP) [2016] UKUT 531 (AAC) cases only, and that it could not consider all aspects of KS’ claim for PIP”.

7. In the present case, the Appellant asked for the 2018 decision to be revised. The Secretary of State issued a mandatory reconsideration notice refusing to revise the 2018 decision on the basis of ‘official error’. The Appellant therefore had a right of appeal against the 2018 decision, which he duly exercised. The question, and the basis of Ground 4, was whether it was open to the FtT to conduct an entirely fresh review of the Appellant’s PIP claim, or whether the scope of the appeal was confined to a consideration of the official error only – i.e. the application of the RJ and MH cases.

8. The Secretary of State’s position as set out at para. 4.2 of her submissions is that: “… When carrying out the reconsideration of a claimant’s needs in the light of the available evidence that regulation 26(1)(a) of the D&A Regs permits (KB v Secretary of State for Work and Pensions (PIP) [2016] UKUT 537 (AAC) at [12]-[13]), a FtT can and should do so in the light of both any new case law that section 27 of the Social Security Act 1998 does not prevent it from applying and any new relevant factual matters the available evidence brings to light. The FtT thereby erred in law by limiting its consideration to the application of MH and RJ.”

9. Although the Appellant agrees with the Secretary of State’s position, this ground raises an important point of legal principle and practice which is of significance beyond the particular facts of this case. As noted by UT Judge Wikeley in CW v SSWP (PIP) [2023] UKUT 297 (AAC) at [41]: “41. I am conscious that there is some uncertainty in the case law authorities on the scope of issues in a LEAP appeal before the FTT where the decision is being revised for error of law. One view is that it is only issues that flow from the identified error of law that are capable of being considered. The other view is that in effect the decision is being retaken in its entirety, and so potentially all aspects are open to reconsideration. This is not the case to resolve those difficulties, not least as this is a supported appeal and the point has not been fully argued.”

10. This case therefore presents the Upper Tribunal with an opportunity to grapple with this jurisdictional issue and provide much needed guidance. This opportunity would be lost if the Upper Tribunal were to set the decision aside without reasons.

11. Second, the Appellant considers that the most appropriate and effective way of disposing of this appeal is for the Upper Tribunal to retain the appeal and remake the decision for itself.

12. This is a case where an existing award of PIP made pursuant to a FtT’s decision has been overturned by the Secretary of State during its projected term. An earlier FtT (on 3 May 2016) decided that the Appellant was entitled to the standard rate of the daily living component of PIP from 6 January 2016 to 5 January 2019. The FtT found that the Appellant had limited ability to carry out activities of daily living, and that he scored 11 points for this component (descriptors 1d, 3b, 4c, 6c, 9b and 10b).

13. Rather than appealing that decision, the Secretary of State (by way of the 2018 decision) ended the award made by the FtT almost 8 months before its term expired. The Secretary of State determined that the Appellant did not qualify for the standard rate of the daily living component (scoring 0 points) or the mobility component (scoring 0 points), and withdrew the award from 9 May 2018 onwards.

14. The Upper Tribunal will note that on 2 September 2022 (prior to the hearing of the FtT appeal) the Appellant made a new claim for PIP and was awarded the enhanced rate of both the daily living and mobility components from 2 September 2022 to 29 November 2028.

15. In light of the above, the Appellant submits that the Upper Tribunal should remake the decision for itself and reinstate the Appellant’s entitlement to the daily living component at the standard rate for the period 9 May 2018 to 1 September 2022, as per the award made by the FtT on 3 May 2016. This is because: 15.1. An earlier FtT has already made findings of fact and determined that the Appellant was entitled to the standard rate for the period 9 May 2018 to 1 September 2022 (i.e. the period currently under challenge). 15.2. A significant length of time has now elapsed since the period of award which is under challenge, which will present fact-finding difficulties for a newly constituted FtT. 15.3. Matters have also moved on considerably in that the Secretary of State has determined that the Appellant’s condition has worsened to the extent that he is entitled (and remains entitled) to an even higher award for both the daily living and mobility components in comparison to his award during the period under challenge. 15.4. Retaining the appeal in the Upper Tribunal would limit the psychological and emotional strain on the Appellant, who is highly vulnerable, and his appointee (his mother) which would arise by further protracting these proceedings and the prospect of having to give evidence again in a fresh FtT hearing. 15.5. This approach would also be in accordance with the overriding objective, saving valuable Tribunal time by avoiding the need for a newly constituted FtT to hear new evidence and make factual findings.”

18. For the reasons identified by the Secretary of State, I am satisfied that there was the Tribunal made errors of law which were material to the decision and for that reason the decision of the Tribunal should be set aside.

19. In the circumstances I do not need to consider whether the Tribunal made any other errors of law.

20. I am satisfied that the resolution of any other grounds of appeal will fall to be subsumed at the hearing before the new tribunal.

21. I therefore allow the appeal and set aside the decision of the Tribunal. I remit the matter to a new tribunal which should conduct a complete rehearing of the matter.

22. The claimant invited me to remake the decision, but I am satisfied that the correct course of action is to remit the matter for rehearing before a new tribunal which will hear the claimant’s mother give oral evidence which it can evaluate for itself. As to the question raised in the claimant’s submissions, I agree with the comments of Judge Wikeley in CW v Secretary of State for Work and Pensions (PIP) [2023] UKUT 297 (AAC): “41. I am conscious that there is some uncertainty in the case law authorities on the scope of issues in a LEAP appeal before the FTT where the decision is being revised for error of law. One view is that it is only issues that flow from the identified error of law that are capable of being considered. The other view is that in effect the decision is being retaken in its entirety, and so potentially all aspects are open to reconsideration. This is not the case to resolve those difficulties, not least as this is a supported appeal and the point has not been fully argued.”

23. I must stress that the fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication as to the outcome of the rehearing by the new tribunal. It is quite possible that the new tribunal may end up effectively coming to the same decision as the previous Tribunal, namely that the claimant was not entitled to either component of personal independence payment from and including 9 May 2018 to and including 1 September 2022.

24. Alternatively, it is possible that the new tribunal might take a different view of the facts from that of the Tribunal and reach the conclusion that in fact the claimant was entitled to one or other or both components of personal independence payment from and including 9 May 2018 to and including 1 September 2022.

25. It is for the new tribunal itself to decide which of these alternative options open to it applies, depending on the view it takes of the facts and providing it makes proper findings of fact and gives adequate reasons. It would not be appropriate for me to express any opinion either way on the merits of the appeal.

26. The following directions apply to the hearing before the new tribunal: (1) The new tribunal should not involve any member who was a member of the Tribunal involved in the hearing of the appeal. (2) The new tribunal must considerand make relevant findings as to whether or not the claimant satisfied the criteria to be awarded the daily living component and/or the mobility component of personal independence payment from and including 9 May 2018 to and including 1 September 2022. In so doing the new tribunal should, in particular, have regard to the claimant’s amended grounds of appeal dated 30 October 2024 and his submissions dated 6 March 2025 and the submissions of the Secretary of State dated 3 February 2025. Mark West Judge of the Upper Tribunal Signed on the original on 9 May 2025