[2025] UKUT 326 (AAC)

The claimant sought permission from the First-tier Tribunal to appeal to the Upper Tribunal on several grounds, but a District Tribunal Judge 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.

In a clear and succinct submission, Ms Blackshaw of Derbyshire County Council (for the claimant). She identified evidence in the ESA85 report produced in connection with the claimant’s application for another benefit that she says was relevant to the claimant’s appeal but was not addressed in the Tribunal’s statement of reasons or its decision notice, so it is impossible to know what the Tribunal made of this relevant evidence or indeed whether it considered it at all.

Ms Blackshaw also voiced a concern that the Tribunal appeared to have made assumptions about the degree of the claimant’s symptoms and her resulting functional limitations based on the treatment she had received. Ms Blackshaw argued that the claimant should have scored points for the daily living activities of preparing food, washing and bathing, toileting and dressing and undressing, and the Tribunal’s errors of law were material because had she been awarded points in respect of those activities the outcome of the appeal would have been different (as the 8 point threshold for an award of the standard rate of the daily living component would have been reached).

In my permission decision, which was addressed to the claimant, I said:

“6.

There are several places in the Tribunal's statement of reasons for the FtT Decision that indicate that the Tribunal may have drawn impermissible inferences from evidence about the treatment that you have received.

7.

The Tribunal may have erred in law by failing to follow the Upper Tribunal's decision in MM v SSWP (ESA) [2018] UKUT 446 (AAC), in which Judge Poynter said (at paragraphs [45]-[46]):

"When a Tribunal concludes that a claimant cannot be accurately describing the conditions from which she suffers because, if she were, she would be receiving different treatment, its reasoning is often reducible to this: that the Tribunal's medical member would not him- or herself treat a person with those conditions in that way." ... "There is therefore a real risk that drawing inferences about function from treatment will in some cases lead the Tribunal to conclude that claimants do not suffer from the loss of function they described because they are not being correctly treated for it. That is clearly not a permissible conclusion."

8.

The Tribunal appears to have dismissed your evidence about the functional limitations you experience due to your health problems because of the evidence of what treatment you were (and were not) receiving. It also appears to have made assumptions about the effectiveness of surgery that you had undergone (rather than making evidence-based findings as to the impact of that treatment on your functioning.

9.

I am satisfied that it is arguable with a realistic prospect of success that the Tribunal erred in law, and its error may have been material (in the sense that the outcome could have been different had the Tribunal not made such an error) because such an error (if made) might have affected all its decision making. This justifies a grant of permission to appeal to the Upper Tribunal. My grant of permission extends to each of the grounds argued by Ms Blackshaw.”

I made Case Management Directions for the parties to make submissions and indicate whether they requested an oral hearing of the appeal.