TL v Secretary of State for Work and Pensions

Where the Secretary of State has ceased to dispute entitlement to particular Personal Independence Payment descriptors, those descriptors are no longer issues in the appeal. The tribunal should take the agreed points as its starting point.

Under Social Security Act 1998, section 12(8)(a), a tribunal may nevertheless identify an issue which the parties no longer pursue. It must exercise that discretion judicially and fairly. If it proposes to withdraw an accepted entitlement, it may need to give the claimant notice and an opportunity to address the risk.

A tribunal must also make sufficient findings and give adequate reasons when deciding whether an activity can be performed within a reasonable time.

TL appealed against the Secretary of State’s refusal of her claim for personal independence payment. The First-tier Tribunal decided the appeal on the papers on 6 July 2023. It awarded seven daily-living points, one point short of entitlement.

In the Secretary of State’s response to the appeal, additional descriptors for taking nutrition and managing therapy had been recommended. Those points would still not have produced an award. The First-tier Tribunal declined to award them, stating that it was not bound by the recommendation. It also concluded that TL could dress and undress without scoring points.

Permission to appeal was granted on the arguable grounds that the tribunal had not adequately addressed the reasonable-time requirement for dressing and had failed to apply DO v SSWP (PIP) [2021] UKUT 161 (AAC). The Secretary of State supported the appeal.

1. Appeal allowed. The First-tier Tribunal made material errors of law. Its decision was set aside and the appeal was remitted for a rehearing before a freshly constituted tribunal.

2. The tribunal’s reasoning on dressing and undressing was inadequate. The evidence indicated that TL took longer to put on socks and shoes because of pain and physical conditions. The tribunal did not make sufficient findings about the time taken, the reasonable time period required by regulation 4, or the comparison between them. Its conclusion that descriptor 6.a applied was therefore inadequately reasoned.

3. The Upper Tribunal applied DO v SSWP (PIP) [2021] UKUT 161 (AAC). By its appeal response, the Secretary of State no longer disputed that TL should receive the descriptors for activities 2 and 3. Individual PIP descriptors and their points fall within “any issue raised by the appeal” in section 12(8)(a) of the Social Security Act 1998. The First-tier Tribunal should therefore have treated those descriptors as no longer in issue and as the starting point for its decision.

4. Section 12(8)(a) did not prevent the tribunal from identifying and deciding an issue that the parties had ceased to pursue. The discretion had to be exercised judicially. If the tribunal contemplated refusing descriptors that the Secretary of State accepted, fairness required it to consider giving TL notice of that risk. As the appeal was being decided on the papers, this might have required an adjournment and an oral hearing.

5. The errors were material because a further point could have resulted in an award of the daily-living component. Further fact-finding was required, so remittal rather than remaking was appropriate. The new tribunal must decide entitlement afresh on circumstances obtaining at the date of the Secretary of State’s decision.

• Upper Tribunal (Administrative Appeals Chamber): Allowed TL’s appeal, set aside the First-tier Tribunal’s decision, and remitted the case for a fresh hearing.
• First-tier Tribunal (Social Entitlement Chamber): On 6 July 2023, awarded seven daily-living points and dismissed the appeal because the eight-point threshold for PIP was not met.