MB v SSWP

A fact-finding tribunal must consider the relevant evidence holistically. Where medical or other material evidence conflicts, it must make findings resolving that conflict and give adequate reasons for preferring one source over another.

If a tribunal proposes to rely materially on an inference from its own observation of a claimant at the hearing, it must give the claimant an opportunity to address that inference. A failure to do so may breach natural justice. Inadequate reasoning which prevents the parties or an appellate tribunal from knowing whether the correct legal tests were applied is an error of law.

The claimant appealed against a decision refusing her Personal Independence Payment claim from 6 January 2023. The First-tier Tribunal, sitting at Wolverhampton, upheld that refusal on 23 October 2023.

She appealed to the Upper Tribunal on the grounds that the First-tier Tribunal had given inadequate reasons, had failed properly to consider conflicting medical evidence, and had not adequately addressed whether activities could be performed safely under the Social Security (Personal Independence Payment) Regulations 2013.

The Upper Tribunal also considered whether the First-tier Tribunal had fairly relied on its observation of the claimant walking into the hearing room without first allowing her to comment upon any inference drawn from it.

1. Appeal allowed. The First-tier Tribunal’s decision involved material errors of law. It was set aside and the appeal was remitted for a complete rehearing before a differently constituted First-tier Tribunal.

2. The First-tier Tribunal had not adequately engaged with the GP evidence and MRI report, which bore on the claimant’s knee, foot and other conditions. Its reasons did not show whether that evidence had been considered or explain why the November 2022 musculoskeletal report was preferred. A tribunal must explore relevant evidence, make the necessary findings of fact, resolve clear evidential conflicts, and explain its preference for competing evidence.

3. The tribunal’s observation that the claimant entered with a normal gait was capable of carrying weight only if the claimant had a fair opportunity to address the material inference drawn from it. The reasons did not show that she had been afforded that opportunity. The failure was, at least, a breach of natural justice. The Tribunal referred to the guidance in K.H. (by C.H.) -v- SSWP (DLA) [2022] UKUT 303 (AAC) and the principles in CC v Secretary of State for Work and Pensions [SSWP] (ESA) [2019] UKUT 14 (AAC).

4. It was unnecessary to decide separately whether the First-tier Tribunal had failed to apply regulation 4(2A), including the requirement of safety. Its analysis of that issue had in any event been peripheral.

5. The rehearing tribunal must make its own findings on all relevant evidence. It must not rely on the findings or conclusions of the set-aside tribunal, and it must determine entitlement by reference to circumstances at the date of the Secretary of State’s decision, subject to the proper use of later evidence bearing on those circumstances.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision, and remitted it for rehearing: [2024] UKUT 271 (AAC).
• First-tier Tribunal (Social Security and Child Support): dismissed the claimant’s appeal against the refusal of Personal Independence Payment on 23 October 2023 (case no SC 053/23/00861).
• Secretary of State: refused the claim by decision dated 14 March 2023, maintained on mandatory reconsideration.