KW v Secretary of State for Work and Pensions

In assessing Personal Independence Payment activity 9, a tribunal must assess the claimant’s social engagement holistically. Employment may provide relevant comparable evidence, but it cannot displace findings on the claimant’s ability generally to interact appropriately, understand body language and establish relationships.

Pain may affect whether a PIP activity can be completed to an acceptable standard, repeatedly and within a reasonable time under regulation 4(2A). A tribunal must make findings on its practical effects. On adjournment, the tribunal should weigh the benefit sought, the reason for unreadiness, and the effects on the opposing party and tribunal system.

The claimant appealed a First-tier Tribunal decision which confirmed the Secretary of State’s refusal of Personal Independence Payment. The First-tier Tribunal awarded four daily-living points and no mobility points.

The appeal raised three issues: the refusal of an adjournment and decision to proceed in the claimant’s absence; the assessment of activity 9, engaging with other people face to face; and the treatment of pain when applying regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013.

The Secretary of State supported the appeal on the latter two grounds. The central question was whether the First-tier Tribunal had made adequate findings and correctly applied the PIP reliability criteria.

1. Appeal allowed. The First-tier Tribunal made material errors of law in its assessment of activity 9 and of pain under regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013. Its decision was set aside under section 12 of the Tribunals, Courts and Enforcement Act 2007.

2. On activity 9, the tribunal was entitled to treat the claimant’s receptionist work as potentially relevant evidence. It erred by largely treating that work as determinative. It had to assess social engagement outside work and make sufficient findings on each element of “engage socially” in Schedule 1: appropriate social interaction, understanding body language and establishing relationships. It also had to determine whether those functions could be performed independently and to the required reliability standard. The failure to take that holistic approach was an error of law.

3. The First-tier Tribunal also adopted an erroneous starting point in stating that PIP activities could be performed despite pain because pain was excluded from the descriptors. Accepted pain may bear on whether an activity can be completed to an acceptable standard. It may also bear on repeatability and whether it can be completed within a reasonable time. The tribunal had to make findings on the claimed pain and its effect on the relevant activities before applying regulation 4(2A).

4. The refusal of the adjournment and the decision to proceed in the claimant’s absence disclosed no error. Those were discretionary decisions which the First-tier Tribunal had exercised judicially. An adjournment application should address its benefit, why the party is unready, and its effects on the other party and tribunal system. It would be exceptional to refuse an otherwise justified adjournment solely because of system needs. In this case, however, the First-tier Tribunal was entitled to proceed in the interests of justice.

5. The case was remitted to a differently constituted First-tier Tribunal for a complete rehearing. That tribunal must make its own findings and must not rely on the set-aside tribunal’s findings or conclusions.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decision and remitted the case for rehearing: [2024] UKUT 410 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): On 27 November 2023, dismissed the claimant’s appeal and confirmed the Secretary of State’s decision that she was not entitled to Personal Independence Payment.