[2024] UKUT 86 (AAC)

There will therefore need to be a fresh hearing of the appeal before a new First-tier Tribunal. Although I am setting aside the previous Tribunal’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the claimant is entitled to PIP (and, if so, which component(s) and at what rate(s)). That is a matter for the good judgement of the new Tribunal. That new Tribunal must review all the relevant evidence and make its own findings of fact.

In doing so, however, unfortunately the new Tribunal will have to focus on the claimant’s circumstances as they were as long ago as in August 2021, and not the position as at the date of the new hearing, which will obviously and regrettably be nearly 3 years later. This is because the new Tribunal must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998). The original decision by the Secretary of State, which was appealed to the FTT, was taken on 31 August 2021.

The new Tribunal will also note it is now dealing with the case as covering a closed period. This is because the Appellant made a successful claim for PIP just two days after her appeal was dismissed by the FTT in August 2022, being awarded the standard rate of both the daily living and the mobility components of PIP from 10 August 2022 to 31 May 2024. On the new claim the Appellant was found to satisfy daily living descriptors 1b, 4b, 5b and 6b (8 points) and mobility descriptor 2d (10 points). It follows that the new Tribunal hearing the remitted appeal will be dealing with the closed period from 5 March 2021 to 9 August 2022.