NH v Secretary of State for Work and Pensions

A tribunal must normally disclose and invite comment on specialist knowledge, expertise, or external website material on which it proposes to rely. This is particularly important where generic material is used selectively and instead of findings about the claimant’s actual functional ability.

In assessing whether an activity can be done safely under the Social Security (Personal Independence Payment) Regulations 2013, the absence of accidents is not reliable evidence of safety where the claimant has largely avoided the activity because of the relevant conditions. The tribunal must assess the real possibility of harm, including its likelihood and seriousness.

The appellant, who had an artificial right eye, visual difficulties, anxiety and depression, appealed against a First-tier Tribunal decision dismissing her appeal concerning entitlement to Personal Independence Payment.

The First-tier Tribunal had awarded points for some daily-living and mobility activities, but not enough for an award. Its decision notice also conflicted with its statement of reasons. The appellant contended, among other matters, that the tribunal had relied without notice on selected material from the RNIB website and had inadequately assessed her ability to prepare food and undertake activities safely.

The Secretary of State supported the appeal. The central issues were procedural fairness, adequate findings about the appellant’s functional limitations, and the correct assessment of safety.

1. Appeal allowed. The First-tier Tribunal’s decision involved material errors of law. It was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 and remitted to a differently constituted First-tier Tribunal for an oral rehearing.

2. The First-tier Tribunal had made some findings about the appellant’s eyesight which were unobjectionable in principle and consistent with the guidance in KS v SSWP (PIP) [2017] UKUT 456 (AAC). However, it then substantially reproduced generic information from the RNIB website without putting it to the appellant or allowing her to comment. Applying R (L) v London Borough of Waltham Forest [2003] EWHC 2907 (Admin), fairness normally requires a tribunal relying on specialist knowledge or expertise to give the parties that opportunity. The unfairness was aggravated by the selective use of material which omitted passages supporting the appellant’s case.

3. The use of that unshared material undermined the tribunal’s earlier findings and led it to rely on generalised assumptions about monocular vision rather than findings about this appellant’s actual abilities, including the combined effects of visual impairment and anxiety or depression.

4. The tribunal gave inadequate reasons for preferring the healthcare practitioner’s account that the appellant had never cut herself while cooking over her contrary oral evidence and questionnaire. It did not explain why that evidence was rejected.

5. Under regulations 4(2A) and 4(4)(a) of the Social Security (Personal Independence Payment) Regulations 2013, safety requires consideration of whether there is a real possibility of harm which cannot be ignored, having regard to both likelihood and gravity. The tribunal acted perversely in inferring safety from the absence of recent accidents when the appellant’s un-rejected evidence was that she had largely avoided cooking, social engagement and unfamiliar journeys because of her conditions.

6. The new tribunal must make its own findings from all relevant evidence and determine entitlement for the closed period. It must assess circumstances obtaining at the date of the original decision, as required by section 12(8)(b) of the Social Security Act 1998.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decision for error of law, and remitted the case to a fresh tribunal.
• First-tier Tribunal (Social Entitlement Chamber): On 3 May 2023, dismissed the appellant’s appeal against the Secretary of State’s decision of 3 May 2022 that she was not entitled to Personal Independence Payment.