JS v SSWP

Under section 12(8)(b) of the Social Security Act 1998, a tribunal must decide entitlement by reference to circumstances obtaining at the decision date. It may nevertheless admit evidence created later where that evidence bears on circumstances during the relevant period. The decisive question is when the evidence relates, rather than when it was produced.

In assessing whether an activity can be performed safely for PIP, a tribunal must make clear findings on the real possibility of harm, including its likelihood and gravity. For epilepsy, it may be necessary to determine whether the claimant receives a warning sufficient to avoid or minimise the consequences of a seizure. A blanket rejection of later evidence, without considering whether it evidences a pre-existing condition rather than a fresh circumstance, is an error of law.

The appellant appealed against the First-tier Tribunal's dismissal of her appeal from the Secretary of State's refusal, dated 15 July 2019, of personal independence payment. The First-tier Tribunal awarded no points for either component.

The appellant had epilepsy and later suffered tonic-clonic seizures in November 2020 and January 2021. The First-tier Tribunal acknowledged the November 2020 seizure but treated it as irrelevant to risk at the decision date. The appeal concerned whether it had wrongly excluded that later evidence under section 12(8)(b) of the Social Security Act 1998, and whether its assessment of safety and risk was legally adequate.

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 fresh hearing before a differently constituted First-tier Tribunal.
2. Section 12(8)(b) of the Social Security Act 1998 prevents a tribunal from taking account of circumstances not obtaining at the decision date. It does not confine the tribunal to evidence that existed, or was available, on that date. Later evidence is admissible if it relates to the relevant period, including where later events permit an inference about circumstances then obtaining. Only genuinely fresh circumstances arising after the decision are excluded. The approach in R(DLA) 2/01 and R(DLA) 3/01 was followed.
3. The First-tier Tribunal gave an inadequate and blanket reason for rejecting the later seizure evidence. It did not explain why that evidence could not bear on the appellant's condition and risk at 15 July 2019, nor did it determine whether the seizure was a fresh circumstance or the continuation of the existing epilepsy. That issue was potentially determinative.
4. For regulation 4(2A)(a) of the Social Security (Personal Independence Payment) Regulations 2013, an activity is not performed safely where there is a real possibility of harm that cannot be ignored, having regard to both the likelihood and gravity of harm. In an epilepsy case, clear findings were required on whether the claimant received a warning before seizures which enabled preventive or risk-minimising action. The absence of definitive findings made the First-tier Tribunal's risk assessment fundamentally flawed.
5. The First-tier Tribunal had also made a significant factual mistake in suggesting that the appellant did not have a diagnosis of epilepsy. That error did not by itself materially affect the outcome, since PIP entitlement depends on functional ability rather than diagnosis alone.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decision for error of law, and remitted the case for rehearing: [2024] UKUT 90 (AAC).
• First-tier Tribunal (Social Security and Child Support): On 24 August 2021 dismissed the appeal from the Secretary of State's refusal of PIP and awarded no points for either component. It refused permission to appeal on 31 January 2022.