[2025] UKUT 307 (AAC)

At the permission stage I had to be persuaded only that it was arguable that the Tribunal erred in law in a way that might have been material. At this stage the appeal can succeed only if I am persuaded that it did indeed err, and its error was material.

The claimant has a number of health conditions, which include autism spectrum disorder (“ASD”), attention deficit hyperactivity disorder (combined type) (“ADHD”), social anxiety, depression, complex post-traumatic stress disorder (“PTSD”), and dissociative episodes. She is prescribed Elvanse 50mg daily to help with the symptoms of her ADHD and Sertraline 50mg daily to help manage the symptoms of her anxiety and depression. In both her PIP2 questionnaire and her appeal form (on appeal to the Tribunal) the claimant reported difficulties with undertaking various daily living and mobility activities due to the impact of her physical and mental health conditions.

While the Tribunal appears to have accepted that the claimant experiences fatigue, it concluded that her fatigue was not related to a health condition but was instead due to her working full-time as an IT support technician (see paragraph 14 of the Tribunal’s statement of reasons).

The Tribunal’s rationale appears to be that if the claimant is sufficiently motivated to work 37.5 hours per week then she should also be sufficiently motivated to undertake the daily living activities of PIP, and would not require prompting in order to do so (paragraph 15 of its statement of reasons).

The Tribunal does not appear to have considered the guidance provided at paragraph 7 of the decision in GG v SSWP (PIP) [2016] UKUT 0194 (AAC), which states:

“7....The mere fact that a claimant might be sufficiently motivated to perform a task when there is specific or unusual impetus to do so does not, of itself, inform as to the overall position and the generality of the situation. So, it is not appropriate to limit the scope of the enquiry to such days. True an ability to perform a task without prompting when there is particular pressure to do so might be indicative of a claimant simply exercising a choice not to perform such a task on impetus absent days but that will not necessarily follow. What has to be undertaken is a more general and all-encompassing consideration. So, there needs to be an assessment, in such cases, of why it is that, on days when a claimant does not perform certain tasks, he/she does not do so. If it is because, without any specific impetus, he/she is not motivated to do so as a result of health difficulties and that such days exist for more than 50% of the time in the relevant assessment period, then absent other pertinent considerations, the relevant descriptor or descriptors will apply. That was not this tribunal’s approach, and I conclude that, in consequence, it did err in law.”

The Tribunal has not grappled within its decision notice or statement of reasons with the claimant’s evidence in her PIP2 questionnaire form (at pp.15-19) and in her grounds of appeal (at pp.4-5) where she details her difficulties with motivating herself due to her mental health difficulties and the impact and effects that her ASD and ADHD also has on her mental health and motivation when undertaking the daily living activities of PIP. The claimant reports relying on prompting from friends to help her with day-to-day activities. The Tribunal was not bound to accept this evidence but given how central it was to the issues in the appeal it was obliged to explain what it made of the evidence and, if it rejected that evidence, to explain why it evaluated it as it did.

Given the Tribunal’s acceptance that the claimant experiences fatigue, further findings were required regarding the impact and effect that the claimant’s fatigue and lack of motivation had upon her day-to-day life and her ability to undertake the activities contemplated by the Schedule 1 descriptors. The Tribunal’s findings are insufficient to support its conclusion that the claimant did not require prompting from another person in order to undertake the daily living activities of PIP to the standard required by regulation 4(2A) of the PIP Regulations.

In my grant of permission I said that the Tribunal’s decision making may not have been consistent with the approach commended by Judge Hemingway in TR v SSWP and followed by Judge Stout in AE v SSWP. Applying the threshold applicable to a substantive appeal, I now find that the Tribunal did indeed err in law in its decision making, which was not consistent with TR v SSWP or AE v SSWP.

The First-tier Tribunal should have considered the claimant’s ability to carry out the relevant activities at the times when it was reasonable for her to carry them out. PIP is a benefit that is available to people who work. It was reasonable for the claimant to continue to work despite her health difficulties. Where it was reasonable for the claimant to carry out an activity after having completed a day’s work, her ability to carry out that activity should be assessed on that basis.