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What this appeal is about
What this appeal is about
WB made a claim for personal independence payment (PIP) on 14 February 2022. This was his third PIP claim. The Department for Work and Pensions (“DWP”), acting on behalf of the Secretary of State, asked WB to take part in a medical assessment by telephone on 08 December 2022. Having received a copy of the PA4 assessment report, DWP decided to award WB 11 points for PIP daily living activities and 8 points for PIP mobility activities. The effect of this was that DWP awarded WB the standard rate of both the daily living and mobility components of PIP.
On 14 July 2023, a First-tier Tribunal (the “Tribunal”) determined WB’s appeal at Sutton at a face-to-face hearing. The Tribunal confirmed DWP’s decision and refused WB’s appeal.
In a decision dated 29 July 2024, I gave WB 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 of the following ways:
Procedural irregularity relating to the hearing on 14 July 2023: the audio recording of the appeal hearing indicated it lasted for 16 minutes and 13 seconds. The Tribunal spent just over 4 minutes dealing with daily living activities, when it asked WB about managing his medication, engaging with other people and making budgeting decisions. The Tribunal also refused WB’s appeal in relation to the daily living activities of preparing food, managing toilet needs, washing and bathing, reading and dressing and undressing, but did not ask him questions about those activities during the hearing. The recording did not indicate the Tribunal asked WB whether he still wanted to pursue those activities. It appeared from the Statement of Reasons that the Tribunal treated them as still disputed;
Adequacy of factual findings and / or reasons regarding Preparing food: At the medical assessment on 08 December 2022, WB told the healthcare professional that he was not cooking at present. The healthcare professional recording hearing WB scream in pain when moving during the telephone call and that he struggled to stand / sit during it and was in a lot of pain reaching for his medications. In SSWP v GM (PIP) [2017] UKUT 268 (AAC), the Upper Tribunal confirmed descriptor 1.e (needs assistance or supervision when preparing food) is not appropriate for a situation in which another person carries out the entire process of preparing a meal. The Tribunal awarded WB descriptor 1.e (confirming DWP’s award of it) but did not address which parts of preparing a simple meal WB could carry out and the parts where he would require assistance from another person;
Adequacy of factual findings and / or reasons regarding Engaging with other people face to face: The Tribunal did not address whether WB could establish relationships with other people. This is one part of the three-part definition of “engage socially” in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (“the 2013 regulations”). The examples used by the Tribunal in its Statement of Reasons appeared either to involve existing relationships or what might count as reciprocal exchanges with people; and
Adequacy of factual findings and / or reasons regarding Moving around: WB gave oral evidence that he was in pain and every step he took would cause him to experience it. When asked, WB agreed that the distance he had walked from a bus stop to the Tribunal venue was something like 30-40 metres. Paragraph 14 of PS v SSWP (PIP) [2016] UKUT 0326 (AAC) confirms a Tribunal should consider the effect of pain when moving around. Although the Tribunal wrote that it had taken account of regulation 4(2A) of the 2013 regulations in making its decision, it did not address WB’s evidence that he experienced pain whenever he walked, and what impact that had on his ability to move around (i.e., walk) to an acceptable standard.
L. Ropel is the Secretary of State’s representative in these proceedings and I refer to them below as “SSWP’s representative”. They support the appeal to the Upper Tribunal in a helpful written submission dated 09 September 2024.
The SSWP’s representative invites the Upper Tribunal to set aside the decision of the First-tier Tribunal as containing material errors of law and to remit (which means, send back) the appeal for rehearing by a different First-tier Tribunal panel, with appropriate directions for deciding it afresh.
In summary, the SSWP’s representative supports the appeal on all four of the grounds set out at paragraph 3 above. They submit that the Tribunal failed to make adequate findings of fact or provide adequate reasoning about WB’s ability to engage with other people face to face, and the Tribunal failed to make adequate findings of fact or provide adequate reasoning about the effects of WB’s pain on his ability to prepare food and to move around. The SSWP’s representative also submits the Tribunal failed to make adequate findings of fact for the other activities of daily living they addressed in the Statement of Reasons and did not achieve its inquisitorial duty.
Having seen the Secretary of State’s representations, WB makes representations about the fact that he has subsequently been awarded the daily living and mobility components of PIP at the enhanced rate (from 2023 to 2029), and considers he should have been awarded it for the earlier time period covered by his appeal. WB also argues that he has been disabled since 2021, and was in pain from 2019 to 2021, but did not claim benefits. WB describes the impact of his medical conditions on him, in particular the nature of the pain he experiences. He also refers to concerns about the medical care he has received.