[2024] UKUT 282 (AAC)

At the permission stage, I only needed to be persuaded that it was arguable with a realistic (as opposed to fanciful) prospect of success that the tribunal had made an error of law in a way that was material.

At this substantive stage, I need to be satisfied on the balance of probabilities that the tribunal did make one or more errors of law that were material.

The application of DO to TL’s circumstances: certain elements of the Secretary of State’s decision-making and stated position in DO differed from TL’s circumstances. For example:

In my assessment, the most significant of these differences is that had DWP implemented its changed position in DO, this would have resulted in (increased) PIP entitlement. By comparison, had DWP implemented its changed position for TL, she would still have fallen short of the points required for a PIP award, although she would have scored a higher number of points for PIP daily living activities.

In my assessment, however, Judge Wright’s analysis in paragraphs 45 and 46 of DO remains directly relevant and applicable to TL’s appeal. Judge Wright dealt with the tribunal’s inquisitorial duty and what remained in issue between the parties at the time the tribunal made its decision.

When TL lodged her appeal, the issues between the parties included whether she should also have been awarded point-scoring descriptors for PIP activities 1, 2, 3, 5 and 6 and mobility activity 2 (reflecting the mandatory reconsideration request on page 84 of appeal bundle). TL argued she should be awarded point-scoring descriptors for those activities. By leaving its decision unchanged at mandatory reconsideration stage, the Secretary of State did not agree with TL’s position.

By the time the then Secretary of State responded to TL’s appeal, he no longer disagreed with her assertion that she should be awarded point-scoring descriptors for activities 2 and 3. Instead, the Secretary of State now considered that TL should score 7 points for daily living activities instead of 4 points, but maintained his position that she was not entitled to an award of PIP overall.

In my view, the reference to “any issue raised by the appeal” in section 12(8)(a) of the Social Security Act 1998 (“the 1998 Act) extends to the individual descriptor(s) awarded for PIP daily living activities and / or PIP mobility activities. This includes the number of points awarded and also what the descriptor denotes (e.g., when preparing food, that a claimant needs prompting rather than aids).

Had the Secretary of State awarded TL 7 points for PIP daily living activities in the initial entitlement decision dated 03 January 2023, it would have been straightforward (and arguably uncontroversial) for the tribunal’s starting point to be that the Secretary of State considered TL should score at least 7 points for PIP daily living activities. This was not the Secretary of State’s initial position regarding TL, but he had reached that position by the time her appeal reached the tribunal for decision. In both scenarios, by the time the tribunal was asked to decide TL’s appeal, the parties agreed she should score at least 7 points for PIP daily living activities.

In my assessment, this places TL clearly within the analysis Judge Wright set out at paragraphs 45 and 46 of DO. I agree with Mrs Hawley’s submission that the tribunal should have approached TL’s appeal on the basis that the award of daily living descriptors 2.b(ii) and 3.b(ii) was not an issue in the appeal and used this as its starting point.

Section 12(8)(a) of the 1998 Act does not prevent a tribunal from itself identifying an issue in an appeal that the parties have not raised, or no longer pursue. In R(IB)2/04, the Tribunal of Commissioners confirmed the discretion is one to be exercised judicially, taking into account all the circumstances of the particular case.

In DO, Judge Wright explained the tribunal was required as a matter of law and considerations of fairness underpinning that law, to put DO on notice if an issue was, or became, clearly apparent from the evidence about his entitlement to the daily living component at the enhanced rate or the mobility component at the standard rate. Although the specific facts in TL were different, once the tribunal considered whether to exercise its discretion not to award TL the two descriptors the Secretary of State now considered also applied, it should have considered what was required as a matter of fairness. For example, the tribunal was deciding the appeal on the paper evidence. Applying rule 27(1)(b) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008, the requirement to determine TL’s appeal fairly and justly in this situation might have included it adjourning and inviting her to take part in an oral hearing and explaining the risk those additional descriptors might not be awarded.

The tribunal explained at paragraphs 38 and 42 of its Statement of Reasons that it was aware of DWP’s recommendation to award descriptors 2.b and 3.b but was not bound by that recommendation. It explained its disagreement by referring to its reasoning in paragraphs 30 to 37 and 39 to 41.

Mrs Hawley submits that while the tribunal addressed why it considered TL was not entitled to descriptors 2.b and 3.b, it failed to explain whether it had considered the principles set out in DO and if so, why it they were still an issue in this appeal. This reflects the requirement on the tribunal to apply relevant binding case law (DO) and, if choosing to exercise the discretion in section 12(8)(a) of the 1998 Act, doing so consciously, including providing an adequate explanation of its reasoning. I agree with Mrs Hawley’s analysis and with her submission that by failing to take the steps she has identified, the tribunal made an error of law.

I find that the tribunal made material errors of law for the reasons set out at paragraphs 10 to 16 and 20 to 31 above. The errors were material because had the tribunal decided those matters differently, it might have awarded TL at least 1 more point, which would have meant awarding her the PIP daily living component.