PW v Secretary of State for Work and Pensions

In a personal independence payment appeal, tribunals must distinguish between evidence described as relating to learning difficulties and evidence relating to a learning disability. The terms may be used inconsistently and have no assumed authoritative meaning. Where the distinction may affect the claimant’s functional limitations, the tribunal must clarify the meaning intended, assess the evidence in that light, and identify how the documentary evidence uses the terms.

A diagnosis is not required for entitlement, but may be relevant evidence of a physical or mental condition and of the likely nature and extent of functional limitations. A decision affected by failure to address this evidential issue should be set aside and remitted for a complete rehearing.

The claimant appealed against a First-tier Tribunal decision awarding the daily living component of personal independence payment at the standard rate, but no mobility component. The tribunal referred inconsistently to learning difficulties and learning disability, despite evidence from Adult Neurodevelopmental Services that the claimant had a significant learning disability and required substantial support.

The claimant argued that the terminology reflected an important clinical distinction and that the tribunal had failed to engage with the evidence. The Upper Tribunal considered whether that inconsistency amounted to an error of law and, if so, whether it should remake the decision or remit the appeal for rehearing.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law and was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007. The case was remitted to a differently constituted panel.
2. A diagnosis of a particular condition is not necessary for entitlement to personal independence payment. Entitlement depends on the claimant showing that activities are limited by a physical or mental condition and on scoring sufficient points under the relevant activity descriptors. A diagnosis may nevertheless be relevant evidence, including evidence bearing on the reliability of the claimant’s account and the likely nature and extent of limitations.
3. The terms learning difficulties and learning disability are used differently, with no consistent practice or authoritative meaning. A tribunal faced with evidence using both terms must clarify what the claimant or representative means, keep the distinction in mind when taking and assessing evidence, and identify how the documentary evidence uses the terms.
4. The First-tier Tribunal’s repeated references to learning difficulties, its finding that the claimant had a learning disability, and its statement that he was awaiting an assessment for learning difficulties showed that it had failed adequately to resolve the evidential uncertainty. That failure might have affected the assessment of functional limitations and the outcome.
5. The rehearing must be a complete reconsideration of the issues, subject to the tribunal’s statutory discretion. It is not confined to the original grounds, evidence, submissions, or factual and legal conclusions. The tribunal must reach its own conclusions, must assess entitlement from the effective date of 9 September 2020, and must not take account of circumstances not obtaining at that time. Later evidence is admissible where it relates to the circumstances at the relevant time.

• Upper Tribunal (Administrative Appeals Chamber): the First-tier Tribunal decision dated 19 January 2022 was set aside for error of law and the case was remitted to a differently constituted panel for rehearing.