[2025] UKUT 296 (AAC)

The Secretary of State in a submission dated 10 January 2024 supported the appeal being allowed for these reasons:

“4.5

It is my submission that the FtT has erred in law in both its fact finding and duty to provide adequate reasons for their decision. The conclusion from the FtT on how they assessed the claimant’s functional abilities appears limited in their reasoning. It seems that what the FtT has provided at paragraphs 26-29 of the SoR in relation to daily living activity 9 – Engaging with other people face to face appears to be no more than a rehearsal of the evidence before them and a conclusion without an adequate explanation.

4.6

With regards to the issue raised by DTJ Jacques in their decision notice when granting the claimant permission to appeal to the UT. The Secretary of State’s representative respectfully suggests that out of the two decisions referred to in this submission…., the Court of Appeal decision in Hickey v SSWP [2018] EWCA Civ 851, is the more authoritative decision and therefore should be relied upon by the FtT.

4.7

Moving onto the representative’s grounds of appeal concerning daily living activity 9. The claimant has a number of physical and mental health difficulties including a longstanding history of severe anxiety and depression, post-traumatic stress disorder, panic attacks, palpitations, stress reaction and chest pain. She is prescribed antidepressant medication Citalopram 30mg daily to help with the symptoms of her mental health problems and had recently undertaken counselling/talking therapy from January 2021 to July 2021. She has also been re-referred to a psychologist on 18/10/21. The claimant stated that she has a great deal of difficulty engaging with others face to face due to her anxiety ….]

4.8

The FtT note in paragraph 11 of the SoR that the claimant’s representative had invited them to consider awarding the claimant points for a number of descriptors including daily living descriptor 9b – Needs prompting to be able to engage with other people. The FtT in paragraph 26 of the SoR appear to accept the claimant has a “…wariness of people she does not know and of large groupings…” but concluded that “…her difficulties in this regard are not to the extent that she cannot engage socially face-to-face.”

4.9

In reaching their conclusions the FtT in paragraph 27 of the SoR appear to have placed some weight on the claimant’s evidence that she 26 shops weekly at the [supermarket store in her town] and smaller shops in the locality. The evidence she provided to the FtT in their view seemed to be “…describing inter-personal action within the store in such a way that she was socially engaging face to face. She did say that she did not like queues, but she was clearly able to go shopping on her own when other customers were present and would interact with them when spoken to. At the date of the decision [claimant] was also shopping in other shops in [her town], for example the local pet shop.”

4.10

Whilst it is acknowledged that the claimant shops at the [supermarket in her town] and also at smaller local shops in [her town], I would note that her shopping trip to the [supermarket] is done on a weekly basis. It is also unclear when reading the SoR how frequently she would shop at the local shops in [her town]. Would this be on a weekly basis as well? If so, then her shopping trips are not occurring on the majority of days.

4.11

The FtT appear to suggest that the claimant’s verbal evidence during the hearing was describing “…inter-personal action within the store in such a way that she was socially engaging face to face.” However, it is unclear upon reading the SoR what inter-personal action the claimant was undertaking whilst doing her weekly shop at the [supermarket]. Was the FtT relying on the claimant’s evidence that she would “…interact with them if spoken to….” If this were the case, it was incumbent upon the FtT to make further findings of facts, as I respectfully submit that a more accurate interpretation of the claimant interacting when spoken to would suggest that the claimant was simply reacting to someone speaking to her, as she could not avoid them.

4.12

It is noteworthy in the representative’s grounds of appeal to the UT at p.17 there is partial transcript of the digital recording of the appeal hearing where the claimant tells the FtT that if she “…saw someone that I knew or vaguely knew who wasn’t one of my really close people like Sue I would actively avoid them in the [supermarket].” The claimant when describing her difficulties engaging with others [p.86] stated the following “… I tend to avoid social contact as much as possible. If I am outside and I suspect that someone wants to engage with me I will go to great lengths to avoid them. I avoid eye contact as much as possible to try and deter engagement.”

4.13

The claimant also states in her written evidence [p.86] that “..When I have to go out I will go early in the morning or late evening generally to lessen the chances of meeting other people. I will walk down a lonely path rather than the street to go to the chemist for the same reason.” The evidence I have detailed in this, and the previous paragraph appears contradictory to the findings of the FtT detailed within in the SoR. Therefore, was it not incumbent upon the FtT to use their inquisitorial function to determine whether or not the claimant was engaging with others, what that engagement consisted of and the frequency of that engagement.

4.14

Additionally, the FtT in paragraph 28 of the SoR noted that the claimant struck them as someone who liked people and was able to sustain relationships noting that “She visits family….and has friends and neighbours with whom she can sustain relationships. She will go to the café in [her town] with her friend….. She also meets neighbours to share meals.” However, upon reading the SoR there is no indication how often she visits her family…., goes to the café with her friend or how often she meets her neighbours to share a meal.

4.15

The above findings by the FtT again appears to be somewhat inconsistent given the evidence provided by the claimant when making her claim to PIP. She stated at p.86 that her: “…panic attacks are frequently triggered by social engagement. I will cancel meeting family members because I can’t cope or it causes a panic attack. During lockdown my neighbours tried to involve me with a social event but I found this impossible to cope with and ended up crying and having a panic attack as it was too difficult for me… I had to leave work due to stress related issues earlier this year…I became so stressed I was having outbursts and shouting at people. This is the first time it has happened in a work context but it is a frequent occurrence with my family. My emotions overcome me and I am unable to control myself properly.”

4.16

Should not the FtT have used their inquisitorial function to address the above evidence concerning the claimant’s difficulties engaging with others? Especially, given that it is contradictory to the evidence they have relied upon in paragraph 28 of the SoR. On the face of it the above evidence suggests the claimant has difficulties in socially engaging with others including family members where she will shout at them and in some instances will cancel meeting them because she cannot cope or experiences a panic attack. I would also respectfully note that whilst the claimant’s first award of PIP in 2015 included 2 points for daily living activity 9b, could it be that whilst this is not indicative of the same claimed difficulties some years later, however that the claimed difficulties are longstanding, specifically given that the claimant has at the date of decision resumed counselling…..

4.17

Although the FtT is entitled to give weighting to whatever evidence that they choose, where there is conflicting evidence they must in the first instance explore and consider it a holistic manner and provide sufficient reasons explaining why they preferred the evidence that they had. In this appeal the FtT does not appear to have done that. There seems to be a distinct lack of reference to the evidence provided by the claimant concerning her difficulties engaging with others and her difficulty in establishing relationships with others, which she seems to activity avoid if at all possible and appears to be inconsistent with the evidence relied upon by the FtT in the SoR. Additionally, the contradiction in the evidence before them has not been addressed by the FtT when reaching their conclusions concerning daily living activity 9.

4.18

Therefore, it could be said that had the FtT given appropriate consideration to all the evidence, including accurately identifying the effects of the claimant’s conditions, the FtT may have considered the claimant’s limitations. As such, I submit that the FtT have failed to give adequate reasons as to why evidence in parts was not accepted when deciding not to award points.

4.19

I respectfully submit the FtT has materially erred in law, for the reasons I have detailed in my submission, which has resulted in the FtT making insufficient findings of facts and reasons in the SoR to support and explain their decision with regards to the claimant’s appeal. Had the claimant been awarded points for a descriptor within daily living activity 9 such as descriptor 9b this would have been sufficient for the standard rate of the daily living component to have been awarded to the claimant.”