MS v Secretary of State for Work and Pensions

A First-tier Tribunal must make sufficient findings of fact and give adequate reasons when applying the personal independence payment criteria. In particular, it must address whether the claimant can achieve an acceptable standard and perform the activity within a reasonable time, having regard to the practical steps required and the comparison with a person without the disability. A bare rehearsal of evidence followed by a conclusion is insufficient. Where the facts are adequately established, the Upper Tribunal may set aside the First-tier Tribunal’s decision and re-make the substantive decision itself.

The appellant appealed against a First-tier Tribunal decision dated 21 February 2023, which upheld the refusal of his claim for personal independence payment. The dispute concerned daily living activity 5, managing toilet needs or incontinence, in the context of multiple sclerosis and double incontinence.

The Secretary of State supported the appeal. The central issues were whether the First-tier Tribunal had made sufficient findings about the appellant’s practical difficulties, including the time required to manage them, and whether it had adequately addressed the criteria in regulation 4(2A).

1. Appeal allowed and decision set aside. The First-tier Tribunal’s decision involved an error of law because its findings and reasons concerning daily living activity 5 were inadequate.
2. The Tribunal appeared to have rehearsed the evidence and reached a conclusion without explaining how the appellant could clean himself to an acceptable standard within a reasonable time, given the detailed evidence about his double incontinence and the steps he had to take. The issue was not merely what he could do with his arms and hands. It was the practical time required to manage the consequences of his condition, compared with the time required by a person without that disability.
3. The Upper Tribunal accepted that the facts and circumstances were sufficiently recorded to enable it to re-make the decision. Applying the relevant personal independence payment criteria, the appellant satisfied daily living descriptor 5f and was entitled to 8 points for needing assistance to manage incontinence of both bladder and bowel. Together with 2 points under descriptor 9b, this entitled him to the standard-rate daily living component for an indefinite period from 8 February 2022.
4. Under Tribunals, Courts and Enforcement Act 2007, section 12(2)(a) and section 12(2)(b)(ii), the First-tier Tribunal’s decision was set aside and the original appeal was re-made. The Secretary of State could also revise the adverse decision on the appellant’s later claim under regulation 11(2) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed. The First-tier Tribunal decision of 21 February 2023 was set aside for error of law and the substantive decision was re-made in the appellant’s favour.
• First-tier Tribunal (Social Entitlement Chamber): appeal dismissed or disallowance upheld under decision number SC007/22/01185. The decision was set aside by the Upper Tribunal.