HS v Secretary of State for Work and Pensions

A tribunal errs in law where it may have failed to consider relevant evidence that was available to it and that could materially affect its assessment of a claimant’s credibility. This is especially so where the credibility finding underpins the assessment of entitlement.

Where that error is established, the appropriate course may be to set aside the decision and remit the appeal for a complete rehearing before a differently constituted tribunal. On remittal, the tribunal must decide entitlement by reference to the claimant’s circumstances at the date of the decision under appeal, in accordance with Social Security Act 1998, section 12(8)(b).

The appellant claimed personal independence payment on 5 March 2021. The Secretary of State refused the claim on 31 August 2021, awarding no points. The First-tier Tribunal dismissed her appeal on 8 August 2022, finding that she had overstated the effects of her health conditions.

On appeal, the issue was whether the First-tier Tribunal had failed to consider medical records uploaded to the case-management system, including material indicating that the appellant had been advised not to drive during 2021. That evidence could bear on the Tribunal’s adverse credibility finding and, potentially, on the award of points.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law. It was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, and the appeal was remitted to a fresh tribunal under section 12(2)(b)(i).

2. The First-tier Tribunal may not have considered all relevant material available in the case-management system, in particular medical records at Additions Z8–Z11. Those records included evidence supporting the appellant’s account that she had been advised not to drive in 2021.

3. The omission was material. The previous tribunal’s general conclusion that the appellant had overstated her claim rested in part on its assessment of her credibility. Had it considered the additional medical evidence, it might have reached a different view of her credibility and this could have affected the points awarded.

4. The Upper Tribunal made no finding on substantive entitlement to personal independence payment. The fresh First-tier Tribunal must consider all relevant evidence and make its own findings of fact. Under section 12(8)(b) of the Social Security Act 1998, it must assess the appellant’s circumstances as at 31 August 2021, the date of the Secretary of State’s decision.

5. The remitted appeal concerns the closed period from 5 March 2021 to 9 August 2022. It is to be reheard orally by a differently constituted tribunal.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for error of law, and remitted the case for rehearing: [2024] UKUT 86 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): Dismissed the appellant’s appeal against the Secretary of State’s refusal of personal independence payment on 8 August 2022.
• Secretary of State: Refused the claim for personal independence payment on 31 August 2021.