AW v Secretary of State for Work and Pensions

A First-tier Tribunal must not treat a claimant’s selection of “sometimes” in a PIP questionnaire as a proxy for the statutory frequency test. The tick boxes are a blunt evidential tool and must be read with any narrative explanation and the other evidence.

Although the narrative has no special status and need not be accepted, the tribunal must consider it, make sufficient findings about the claimant’s ability to perform activities to the required standard on more than 50% of relevant days, and give adequate reasons for its evaluation. Failure to do so may be a material error of law.

The claimant appealed against a First-tier Tribunal decision refusing both components of personal independence payment. The tribunal had inferred from his selection of “sometimes” for daily-living activities 2–7 in his PIP2 questionnaire that he could perform those activities reliably on more than 50% of days.

The claimant’s questionnaire and the healthcare professional’s report also contained narrative evidence of physical and mental-health difficulties and assistance received from his parents. The Secretary of State accepted that the First-tier Tribunal had erred in law and invited the Upper Tribunal to set aside and remit the decision.

The central issue was whether the tribunal had impermissibly treated questionnaire tick boxes as determining the statutory frequency assessment under the Social Security (Personal Independence Payment) Regulations 2013.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for material error of law and remitted for a complete rehearing before a differently constituted panel.

2. The tribunal was entitled to assess and weigh the evidence, and the Upper Tribunal would ordinarily be slow to interfere with its findings of fact. However, it had apparently inferred from the claimant’s “sometimes” answers that he did not require aids or assistance to the required standard on more than 50% of relevant days. That inference failed adequately to address the substantial narrative evidence accompanying the questionnaire.

3. The “yes”, “no” and “sometimes” boxes are a blunt instrument. Where narrative comments and other evidence are available, a tribunal must interpret the ticks in that evidential context. It may reject the narrative evidence, but it must consider it and, where appropriate, explain its evaluation.

4. Completion of a PIP questionnaire cannot substitute for applying regulations 4(2A) and 7 of the Social Security (Personal Independence Payment) Regulations 2013. “Sometimes” may convey a range of frequencies and does not remove the need for findings on the frequency of difficulties. The tribunal made insufficient findings on the claimant’s ability to undertake the relevant activities to the required standard and gave inadequate reasons, leaving it unclear whether those regulations had been correctly applied.

5. Further facts required determination. The First-tier Tribunal was therefore the appropriate body to rehear the appeal afresh. Later evidence could be received if it related to the circumstances at the date of the Secretary of State’s decision.

• Upper Tribunal (Administrative Appeals Chamber): allowed the claimant’s appeal, set aside the First-tier Tribunal decision for material error of law, and remitted the matter for rehearing.
• First-tier Tribunal (Social Entitlement Chamber): at Chesterfield on 17 February 2021, dismissed the claimant’s appeal against the refusal of personal independence payment.