[2024] UKUT 282 (AAC)

On 11 October 2022, TL made a claim for personal independence payment (“PIP”). TL wrote in her PIP2 questionnaire that she experienced lower back pain, deformity of her knees, arthritis in both hands and knees, glaucoma, achalasia, stress, and was deaf in her right ear and partially deaf in her left ear.

Having received her PIP claim, the Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State for Work and Pensions, asked TL to take part in a telephone medical assessment on 09 December 2022. Having received advice from the healthcare professional who carried out the assessment, on 03 January 2023, DWP decided to award TL 4 points for PIP daily living activities (descriptors 4.b and 7.b) and no points for PIP mobility activities. This meant DWP refused TL’s PIP claim. TL appealed against that decision.

In section 3 of its Response to the Appeal (page D of appeal bundle), the DWP response writer wrote:

“Due to the evidence under the heading Achalasia above, I recommend changing the original descriptors awarded for taking nutrition and managing therapy or monitoring a health condition to B as the new evidence suggests [TL] needs supervision to manage these activities safely on the majority of days.

The recommended changes to the activities of taking nutrition and managing therapy or monitoring a health condition would provide a total of 7 points for the daily living component, therefore the award would remain the same.”

The wording “heading Achalasia” referred to a list of functional restrictions DWP decided TL had as a result of her achalasia. This is a rare swallowing disorder that affects muscles in the oesophagus (tube between the throat and the stomach). The symptoms can include difficulty swallowing and food sticking in the oesophagus, regurgitation of food, weight loss, chest pain and cough (details taken from the John Hopkins Medicine website). The DWP response writer referred to the following evidence: TL was on a modified diet due to swallowing difficulties, had been advised to have a soft diet, had been referred to ensure she had a safe swallow, food could get stuck, had experienced choking incidents, and was provided with liquid form medication.

On 06 July 2023, a First-tier Tribunal (the “tribunal”) decided TL’s appeal at Doncaster, on the basis of the documents in the appeal bundle. The tribunal decided TL met the requirements to score descriptor 5.b (2 points) in addition to descriptors 4.b (2 points) and 7.b (2 points), which DWP had already awarded TL in its decision dated 03 January 2023. The tribunal decided TL did not score any other points for daily living activities. The tribunal awarded TL a total of 7 points for daily living activities. As the threshold for an award of PIP is 8 points, it refused TL’s appeal.

In a decision dated 15 January 2024, I gave TL permission to appeal against the tribunal’s decision, on the basis it was arguable with a realistic (as opposed to fanciful) prospect of success that the tribunal made an error of law in one or more ways. I wrote:

“8.

Your representative has argued that the tribunal recorded in the Statement of Reasons that it took time for you to put on your socks and shoes, but has not adequately addressed the time taken to complete this activity. Your representative argues that paragraph 46 of the Statement of Reasons does not demonstrate the tribunal made adequate findings of fact to support its conclusion you could do this within a “reasonable time period”, an assessment required by regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013. What constitutes a reasonable time period is defined in regulation 4(4)(c) of those regulations. I agree with your representative that the tribunal may not have made adequate findings of fact about the amount of time taken to complete this activity, what constituted a reasonable time period and how the two compared to each other. Alternatively, it is arguable the tribunal’s reasons for awarding you descriptor 6.a (no points) do not provide adequate reasons in relation to this issue.

Matters that were no longer in issue between the parties:

9.

In the Response to the Appeal, the representative for the Secretary of State for Work and Pensions (“SSWP”) recommended that given the effects of your Achalasia, the tribunal should award you descriptor 2.b (2 points) for the activity of taking nutrition and descriptor 3.b (1 point) for the activity of managing therapy. The tribunal stated it was not bound by the recommendations and proceeded to award no points for those activities (paragraphs 38 and 42 of Statement of Reasons).

10.

In DO v SSWP (PIP) [2021] UKUT 161 (AAC), Upper Tribunal Judge Wright held that where the SSWP had offered to revise a PIP entitlement decision in a claimant’s favour if the benefit claimant accepted that offer and the appeal did not go ahead, the position was that the SSWP was no longer seeking to uphold the decision being appealed. This meant the points that had been offered were no longer issues in the appeal.

11.

Although the tribunal states it was not bound by the SSWP’s recommendations, it is not clear from the Statement of Reasons that it considered whether and if so, how, the principles set out in DO applied to your appeal. In particular, the Statement of Reasons does not address what was, or remained, in issue between the parties at the date when the tribunal determined your appeal. The tribunal may therefore have misdirected itself in law about this issue.”

Mrs Hawley is the Secretary of State’s representative in these proceedings. She supports the appeal to the Upper Tribunal in her detailed and helpful written submission dated 07 March 2024. Mrs Hawley invites the Upper Tribunal to set aside the decision of the First-tier Tribunal as containingmaterial errors of law and to remit the appeal for rehearing by a differently constituted tribunal with appropriate directions for redetermination.

I apologise to the parties for the delay in issuing this determination, which relates to delays in me being sent notification that it was ready to be decided.

Mrs Hawley supports the appeal for the reasons set out below.

Adequacy of the tribunal’s factual findings and reasoning regarding dressing and undressing: Mrs Hawley submits that the tribunal provided limited reasoning for how it assessed TL’s functional abilities to carry out this activity. She submits that the reasoning about this activity in paragraphs 45 to 46 of the Statement of Reasons appears to be no more than a rehearsal of part of the evidence before the tribunal and a conclusion without an adequate explanation.

At paragraphs 4.5 to 4.11 of her submissions, Mrs Hawley cites specific evidence in the appeal bundle describing TL struggling to put on socks and shoes due to her lower back pain, knee deformity and osteoarthritis in her hands. This includes TL stating it took her longer to put on shoes and socks and her GP describing TL experiencing shooting pains up and down her spine as well as her right leg, leading to a referral to the MSK Service on 06 September 2022.

Mrs Hawley submits that given the evidence in the appeal bundle, it was incumbent on the tribunal to use its inquisitorial duty to determine the reasons why TL had to take her time when putting on her socks and shoes, and whether she could do it in accordance with regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 (which includes consideration of whether an activity can be performed within a reasonable timescale).

Dealing with the additional descriptors recommended by DWP’s Response writerwhen responding to the appeal: At paragraph 4.12 of her submissions, Mrs Hawley submits that in the appeal response, the Secretary of State recommended the claimant should have been awarded descriptor 2.b(ii) (taking nutrition) and descriptor 3.b(ii) (managing therapy). Mrs Hawley proceeds to submit:

“The act of the Secretary of State offering TL a partial revision of the decision made on 03 January 2023, showed that the Secretary of State believed this part of the decision was no longer correct and suggests they were no longer seeking to uphold that decision.”

Mrs Hawley submits that Upper Tribunal Judge Wright’s decision in DO v SSWP [2021] UKUT 161 (AAC) (“DO”) addresses a similar situation where (after lodging his appeal) the claimant turned down an offer of an award of the enhanced rate of the daily living component and the standard rate of the mobility component. Mrs Hawley quotes to the following part of Judge Wright’s reasoning (paragraph 46):

“…[the] tribunal was therefore wrong in law, in my judgment, to approach the appeal before it, as it did at the start of the appeal hearing before it, as if entitlement to the enhanced rate of the daily living component or the standard rate of the mobility component were still in issue on the appeal.”

Mrs Hawley submits the tribunal should have approached TL’s appeal on the basis that her entitlement to daily living descriptors 2.b(ii) and 3.b(ii) would not be an issue and to use these points as a starting point. Mrs Hawley argues the tribunal failed to explain adequately whether it considered the principles set out in DO and if so, why it considered that daily living descriptors 2.b(ii) and 3.b(ii) were still an issue in the appeal.

Mrs Hawley submits that the tribunal therefore made an error of law by not applying the principles set out in DO and that had the tribunal considered awarding points for activities 2 and 3, this would likely have amounted to an award of the PIP daily living component for TL.