MH v Secretary of State for Work and Pensions

Where a First-tier Tribunal accepts that a claimant has difficulties engaging with other people, it must adequately explain its choice between prompting and social support descriptors. The explanation must address why the evidence does or does not establish a need for support from a person trained or experienced in assisting social engagement. An inadequately reasoned descriptor choice is a material error where a different descriptor could affect entitlement. Credibility findings remain permissible, but the evidence must be assessed holistically. The fact that some evidence is rejected does not make all of it unreliable. Repeated references to dishonesty do not necessarily create unfairness, although tribunals should avoid unnecessary repetition and maintain balance.

The claimant appealed against a First-tier Tribunal decision dismissing his appeal concerning refusal of personal independence payment. The First-tier Tribunal awarded six points for daily living activities and four points for mobility activities, but no entitlement followed.

The Upper Tribunal considered whether the First-tier Tribunal had adequately explained its selection of the prompting descriptor rather than the social support descriptor for engaging with other people. It also considered arguments concerning the tribunal’s credibility findings, its references to R v Lucas, and alleged unfairness in its treatment of the claimant’s evidence.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for error of law and the case was remitted for complete reconsideration by a differently constituted tribunal.
2. The First-tier Tribunal had accepted that the claimant experienced difficulties engaging with unfamiliar people and had awarded points under activity 9. It nevertheless gave inadequate reasons for selecting prompting rather than social support. The evidence included autism, limited interaction with family, anxiety and difficulties managing tense or angry interactions. That evidence was capable of supporting social support, which may be provided by a friend or family member. The tribunal therefore needed to explain more fully why descriptor 9c was not satisfied.
3. The error was material. If descriptor 9c had been applied, the claimant would have received four points rather than two for activity 9 and would have reached the threshold for the standard rate of the daily living component.
4. The First-tier Tribunal was entitled to assess credibility and reliability. It gave reasons based on inconsistency and implausibility and considered the claimant’s evidence alongside substantial documentary and medical evidence. Its credibility assessment was holistic and did not alone determine the outcome. Although references to exaggeration and dishonesty were repetitive, they did not create the impression of unfairness identified in VS v SSWP.
5. The principle in R v Lucas that rejection of part of a witness’s evidence does not require rejection of all of it was regarded as obvious. No further guidance was necessary. The First-tier Tribunal was directed to reconsider the case afresh, taking account only of circumstances existing at the date of the Secretary of State’s decision, while allowing later evidence insofar as it related to that date.

• Upper Tribunal (Administrative Appeals Chamber): The appeal was allowed. The First-tier Tribunal decision of 16 October 2020 was set aside and the case was remitted for reconsideration by a fresh tribunal.
• First-tier Tribunal (Social Entitlement Chamber): The claimant’s appeal against refusal of personal independence payment was dismissed after awards of six daily-living points and four mobility points.