[2025] UKUT 307 (AAC)

The claimant sought permission from the First-tier Tribunal to appeal to the Upper Tribunal on several grounds, but on 26 February 2025 District Tribunal Judge Ward refused permission to appeal.

The claimant then exercised her right to apply to the Upper Tribunal for permission to appeal and the matter came before me. I allowed the application.

In my grant of permission (which was addressed to the claimant) I said:

“6.

Your representative, Mrs Woodhall, has raised concerns about the Tribunal’s decision-making in relation to the daily living activities of preparing food (activity 1), communicating verbally (activity 7), and making budgeting decisions (activity 10). She also criticises the Tribunal’s decision-making in relation to the first mobility activity.

7.

Where the Tribunal explains its reasons for scoring your ability to carry out the daily living activities as it did (see in particular paragraphs 13 and 15 of its statement of reasons), the Tribunal appears to accept that you are restricted as a result of fatigue, but reasons that your fatigue results from your working full-time as an IT support technician rather than as a result of any health condition. It appears to have based its decision not to award any points for a need for prompting in relation to daily living activities on the fact that you have sufficient motivation to attend work for 37.5 hours a week, and it appears to have inferred from this that you would also have sufficient motivation to carry out your activities of daily living independently. I consider that its decision-making in this regard may involve an error of law.

8.

In particular, its decision-making may not be consistent with the approach taken by Judge Hemingway in TR v SSWP [2016] AAC 23, and followed by Judge Stout in AE v SSWP [2024] UKUT 381 (AAC): when assessing a claimant’s ability to carry out an activity, the claimant’s ability must be assessed at a time of day when it is reasonable for them to carry it out, and in the context that the claimant will have spent their day doing activities that it is reasonable for them to have undertaken. As Judge Stout explained in AE v SSWP at §15:

“Although what is reasonable may vary from case to case, in the present case it could hardly be suggested that it was not reasonable for the appellant to work and, if it was reasonable for her to work, then the only reasonable time to expect her to cook a meal from fresh ingredients was in the evening. The Tribunal in this case proceeded on that basis, but what it lost sight of, in my judgment, was that the appellant’s ability to cook in the evening needed to be judged by reference to how tired she was after work.

9.

I am persuaded that it is at least arguable that the FtT Decision involves errors of law and that those potential errors may have been material in the sense that, had they not been made; the outcome could have been different. This warrants a grant of permission to appeal to the Upper Tribunal. My grant of permission is unrestricted.”