CH v Secretary of State for Work and Pensions

In an inquisitorial benefits appeal, procedural fairness requires the First-tier Tribunal to facilitate a vulnerable party’s full participation. Where the evidence indicates difficulty in articulating, remembering or clarifying answers, the Tribunal should consider how best to obtain the party’s evidence and adapt its questioning where necessary. Closed questions should be limited because they may prevent the party from providing material detail.

The Tribunal must evaluate material oral evidence, including evidence relevant to whether activities can be performed safely, to an acceptable standard, within a reasonable time or repeatedly, and must give adequate reasons on material disputed issues. Failure to do so may amount to an error of law requiring the decision to be set aside and the appeal remitted.

CH appealed against a First-tier Tribunal decision dated 22 September 2023, which awarded no points for either component of her personal independence payment claim. The Secretary of State supported the appeal.

Permission was granted on grounds concerning the Tribunal’s closed questioning, its treatment of CH’s answers as vague, its application of regulation 4(2A) of the PIP Regulations 2013, and the adequacy of its reasons. The central issues were whether the hearing was procedurally fair, whether material evidence had been evaluated, and whether the Tribunal had explained its conclusions sufficiently.

1. Appeal allowed and decision set aside. The First-tier Tribunal’s decision involved material errors of law. The case was remitted for rehearing by a differently constituted Tribunal.
2. The First-tier Tribunal’s inquisitorial role includes ensuring, so far as practicable, that parties can participate fully under rule 2(2)(c) of the Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chambers) Rules 2008. This obligation applies when exercising any power under rule 2(3), and must be read with the overriding objective’s requirement of flexibility under rule 2(2)(b).
3. There was substantial evidence that CH’s conditions affected her ability to articulate, remember, clarify and give detailed answers. The Tribunal should therefore have considered how to facilitate her evidence, consistently with paragraph 6 of the President’s Practice Direction on Child, Vulnerable Adult and Sensitive witnesses. The guidance in AM (Afghanistan) v Secretary of State for the Home Department and Lord Chancellor [2017] EWCA Civ 1323 confirmed that such directions are to be followed and that failure to do so will most likely be an error of law.
4. The Tribunal used closed questions on a significant number of occasions and failed to clarify or follow up answers. It then characterised several answers as vague, although the recording showed that some answers were clear or capable of further explanation. This prevented full participation and amounted to procedural unfairness.
5. The Tribunal failed to engage with material evidence relevant to regulation 4(2A) of the PIP Regulations 2013, including whether activities could be performed safely, to an acceptable standard, within a reasonable time or repeatedly.
6. The statement of reasons was extensive but inadequate on material issues. The Tribunal did not explain why it rejected evidence about anxiety when dealing with customers, remaining in pyjamas because of low mood and lack of motivation, and following diversions when driving.
7. The decision was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007. Further findings of fact were required, so the appeal was remitted to a fresh First-tier Tribunal. The new Tribunal must assess entitlement by reference to circumstances existing at the date of the Secretary of State’s decision, while later evidence may be admitted if it relates to those circumstances.

• Upper Tribunal (Administrative Appeals Chamber): The appeal was allowed. The First-tier Tribunal’s decision was set aside for material errors of law and the case was remitted for rehearing by a fresh Tribunal.
• First-tier Tribunal (Social Entitlement Chamber): On 22 September 2023, the Tribunal awarded no points for the daily living or mobility component of personal independence payment.
• Secretary of State’s decision: On 18 May 2022, the Secretary of State decided that CH was not entitled to points for either component.