FW v The Secretary of State for Work and Pensions

Where a tribunal departs from an earlier benefit award, its reasons must enable the claimant to understand why the outcome is different. It is insufficient that the explanation can be reconstructed by an informed judicial reader from scattered findings.

Where inadequate reasoning amounts to an error of law, the Upper Tribunal may set aside the decision and remit the appeal for a fresh hearing. It need not determine every remaining ground of appeal where those grounds cannot affect the disposal. On rehearing a social-security appeal, the tribunal must generally assess circumstances as they existed when the decision under appeal was made, while later evidence may be relevant if it sheds light on that earlier position.

The claimant appealed against a First-tier Tribunal decision dated 22 January 2021 concerning his entitlement to personal independence payment. An earlier tribunal had awarded the standard rate of the daily living component, but the later tribunal awarded only four daily-living points and no mobility component.

The claimant argued that the later tribunal had failed to explain adequately why it departed from the earlier award, and raised further grounds concerning vulnerability, preparing food and engaging with other people. The Secretary of State accepted that the decision should be set aside and remitted, whereas the claimant sought determination of all grounds by the Upper Tribunal. The central issue was whether the First-tier Tribunal’s reasons were legally adequate.

1. Appeal allowed and decision set aside. The First-tier Tribunal’s decision involved an error of law because its reasoning was inadequate. The tribunal recorded the earlier award but gave no clear explanation of why descriptor 9c, previously applied, had been replaced by descriptor 9b. Its reasons concerning preparing food were also insufficiently clear. The fact that an informed judicial reader could reconstruct the decisive issue did not satisfy the duty to give reasons. The reasons had to enable the parties, particularly the claimant, to understand why they had won or lost.
2. The principle in R(M) 1/96, as referred to in AB v SSWP (DLA), required a claimant to be told why a tribunal was departing from a previous award. That requirement applied even on the assumption that the claim was a new claim rather than a renewal claim.
3. It was unnecessary and disproportionate to determine the remaining grounds of appeal once a material error of law had been established. The Upper Tribunal applied the case-management principle discussed in Ashmore v Corporation of Lloyd’s: judicial resources should be directed to the issues necessary for the proper determination of the case.
4. The case was remitted to a fresh First-tier Tribunal for an oral rehearing. The new tribunal was not bound by the earlier decision and had to make its own findings of fact. It was not for the Upper Tribunal to express a view on entitlement to personal independence payment.
5. The fresh tribunal had to assess the claimant’s circumstances at the date of the Secretary of State’s decision, 19 March 2020. Later circumstances could not themselves be taken into account, although later developments such as medication changes could be relevant if they cast light on the position at the material date. This followed the approach identified with reference to section 12(8)(b) of the Social Security Act 1998 and R(DLA) 2/01 and R(DLA) 3/01.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal against the First-tier Tribunal’s decision dated 22 January 2021, set that decision aside and remitted the case to a fresh tribunal for an oral rehearing.