[2025] UKUT 070 (AAC)

The audio recording confirms the appeal hearing on 14 July 2023 lasted for 16 minutes and 13 seconds. The recording starts while the Tribunal Judge was speaking and offering WB adjustments to manage his conditions during the hearing. It is not possible to know what was said before that point. It is, however, clear that the recording started before the Tribunal introduced itself or took evidence from WB.

Listening to the hearing recording, it is also apparent WB was experiencing pain during the hearing. Once the Medically Qualified Tribunal Member had finished asking WB about his medical conditions and the PIP mobility activities (about 7 and a half minutes after the hearing had started), the Judge stated she knew WB was in pain and the Tribunal would just ask him a few questions about daily living activities. WB asked to move around during the Disability Qualified Tribunal Member’s questions, and, without hesitation, the Tribunal confirmed he could do so.

It is clear the Tribunal was aware that WB was experiencing pain during the hearing. The Tribunal members may have thought that limiting their questions was the best way to avoid exacerbating his pain. However, the Tribunal did not address several (namely five) of the activities where WB disputed DWP’s assessment. This meant the Tribunal did not give itself the time and opportunity to carry out its inquisitorial duty effectively. It could not explore and resolve the conflicts in the evidence it went on to identify in its Statement of Reasons (for example, why WB’s PIP2 questionnaire and appeal form described different needs to those recorded in the PA4 report).

WB had been awarded 11 points for daily living activities. He was on the cusp of an enhanced rate award (for which the threshold is 12 points). He challenged DWP’s decision about eight of the daily living activities. The Tribunal only covered three of them, and did so in a period of 4 minutes. As an observation, given the issues WB had raised and having listened to the hearing recording, I consider 4 minutes was, in itself, too brief a time period to address those three activities adequately.

The SSWP’s representative makes the following submissions about the approach the Tribunal took:

“4.12.

Additional to the points discussed above, the Tribunal have failed in their inquisitorial duty to make adequate findings of fact for descriptors they refused as part of the appellants appeal (preparing food, managing toilet needs, washing and bathing, reading and dressing).

4.13.

The Tribunal ought to have further investigated the grounds in which the claimant was appealing. As noted by UT Judge Butler, the Tribunal only spent 4 minutes of the 16-minute hearing speaking to the appellant about their daily living activities (Para 5, page 30, UT Bundle). The Tribunal could have benefitted from using their inquisitorial duty to resolve discrepancies between the appellants SSCS1 form and the evidence they provided in the bundle in the hearing (highlighted at paragraphs 21, 25 of the SOR).

4.14.

Although, the SOR does explain why the Tribunal determined that the appellant did not satisfy the requirements for the descriptors above, it is clear that they have solely relied on the evidence submitted in the physical evidence bundle. If they had properly investigated these descriptors at the hearing, the Tribunal may have been provided with further evidence from the appellant that may have changed the award of benefit awarded to the appellant.

4.15.

By failing to obtain further evidence and relying on the evidence already provided in the bundle I submit that the Tribunal have failed in their inquisitorial function, this amounts to an error of law.”

I agree with these observations by the SSWP’s representative. Furthermore, the overriding objective in rule 2 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 requires a Tribunal to deal with cases fairly and justly. Delay is to be avoided but only so far as compatible with proper consideration of the issues. The Tribunal must ensure, so far as practicable that parties are able to participate fully in the proceedings.

In WB’s appeal, proper consideration of the issues meant addressing at the appeal hearing all the activities where he had challenged DWP’s decision. This does not mean those activities needed to be addressed at length. It may take only a few questions to explore certain activities where the surrounding evidence is clear and the Tribunal understands an appellant’s position effectively.

In WB’s appeal, the Tribunal needed to hear evidence from him, and explore whether (and if so, how) he could carry out all the PIP activities in dispute, at the relevant time. The Tribunal should also have invited him to comment on what the PA4 report stated. Failing to take those steps meant WB did not receive a fair hearing. It made the Tribunal’s proceedings procedurally irregular in a way that affected their fairness and it was capable of making a material difference to the appeal outcome.