YA v Secretary of State for Work and Pensions

Where a personal independence payment decision was made under an unlawfully amended version of the mobility activity concerning planning and following a journey, entitlement must be reconsidered by applying the interpretation established in [2016] UKUT 531 (AAC). A tribunal must identify every relevant decision properly before it, including a later supersession or revision decision. It must also consider whether official error gives it jurisdiction to examine an earlier decision and whether later binding guidance on the statutory descriptors applies to the relevant period. A failure to consider those matters is an error of law requiring the decision to be set aside and the case remitted for rehearing.

The claimant’s personal independence payment award was terminated by supersession on 23 January 2017. Following the decision in RF v Secretary of State for Work and Pensions, the Department reconsidered entitlement but refused a further award. The First-tier Tribunal awarded the daily living component at the standard rate and the mobility component at the enhanced rate for part of the period, but granted permission to appeal on whether the award should extend beyond 22 January 2017.

The Secretary of State supported the appeal, submitting that the tribunal had failed to consider the earlier supersession decision, official error, and the later decision in RJ, GMcL and CS v Secretary of State for Work and Pensions. The central issue was whether the First-tier Tribunal had addressed all relevant decisions and applicable interpretations of personal independence payment entitlement.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law. It was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.
2. The case was remitted to a differently constituted First-tier Tribunal for a complete reconsideration. The tribunal was not directed to conduct a paper hearing; that was a matter for its discretion.
3. The tribunal must reconsider all issues raised by the appeal and, subject to section 12(8)(a) of the Social Security Act 1998, any other issues warranting consideration. The reconsideration must comply with KK v Secretary of State for Work and Pensions.
4. The tribunal must consider the claimant’s entitlement by applying the interpretation of activity 1 in the mobility component established in MH v Secretary of State for Work and Pensions. That interpretation treated overwhelming psychological distress as relevant beyond the descriptors in which it was expressly mentioned.
5. The tribunal must examine the 23 January 2017 supersession decision. It must consider whether official error permitted revision or gave jurisdiction to determine the appeal, applying the approach identified in PH v Secretary of State for Work and Pensions.
6. The tribunal must also consider the relevance of RJ, GMcL and CS v Secretary of State for Work and Pensions, concerning the meaning of safely and the real possibility of harm when assessing each descriptor.

• Upper Tribunal (Administrative Appeals Chamber): The First-tier Tribunal’s decision dated 10 May 2021 was set aside for error of law and the case was remitted for rehearing by a differently constituted panel.