GJ v Secretary of State for Work and Pensions (PIP)

Inquisitorial questioning by a First-tier Tribunal is not rendered unfair merely because it is direct, repetitive, embarrassing or distressing, provided it is relevant to the issues and allows the appellant a fair opportunity to respond. Tribunals must explore intimate or upsetting matters where necessary to determine entitlement, while seeking to minimise distress. A claimant may reasonably be questioned about relevant information disclosed in the claim or accompanying documents; separate prior notice is not generally required. An appellate challenge which merely re-argues factual findings, or disagrees with concise findings supported by the evidence, does not establish an error of law. Accidental errors in a decision notice may be corrected under the procedural rules. Reasons are assessed as a whole.

The appellant claimed Personal Independence Payment after the Secretary of State’s decision-maker refused her claim, awarding no points for daily living or mobility activities. Following a remote hearing, the First-tier Tribunal confirmed the disallowance, while finding that she scored four points in each component.

She appealed to the Upper Tribunal on procedural and substantive grounds. She alleged oppressive, cross-examination-style questioning, lack of notice that her role as a town councillor would be explored, failure to assess variability, incorrect treatment of mobility descriptor 1(d), irrational reasoning and irrational factual findings. The central issue was whether the First-tier Tribunal had erred in law.

1. Appeal dismissed. The First-tier Tribunal’s decision disclosed no error of law and stood.
2. The medical member’s questioning was direct and sometimes repetitive, but it was relevant, courteous and consistent with the inquisitorial role of the Social Entitlement Chamber. It was not fairly characterised as cross-examination or oppressive questioning. Distress at the end of the questioning was attributable principally to the stressful nature of the hearing and the matters discussed.
3. In PIP appeals, tribunals must explore medical conditions and personal care needs, even where the questions may be embarrassing or upsetting. Tact should be used, but imperfect phrasing in a pressured hearing does not itself establish unfairness. The Upper Tribunal declined to give wider guidance on when cross-examination might be permissible because no cross-examination had occurred.
4. The appellant had disclosed her town-councillor role. Questions about how that role affected mobility and interaction with others were relevant. A claimant may reasonably expect questions about matters relevant to the claimed activities which appear in the claim form or related documents. No breach of natural justice was established.
5. The challenges concerning variability, mobility descriptor 1(d), irrational reasoning and irrational findings substantially disagreed with the First-tier Tribunal’s factual assessment. The findings were supported by the evidence. The guidance in Secretary of State for Work and Pensions v IV (PIP) [2016] UKUT 420 (AAC) disclosed no error in the tribunal’s approach.
6. Errors in the decision notice concerning the activity and effective date were accidental slips corrected in the statement of reasons under rule 36. The reasons, read as a whole, were clear, comprehensive and cogent.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed under section 11 of the Tribunals, Courts and Enforcement Act 2007. The First-tier Tribunal’s decision stood.
• First-tier Tribunal (Social Entitlement Chamber): by a decision dated 27 April 2021, confirmed the Secretary of State’s disallowance of the PIP claim, while finding four points for each of daily living and mobility.