IC v Secretary of State for Work and Pensions

Under Social Security Act 1998, section 12(8)(b), the admissibility of later evidence depends on the period to which it relates, rather than when it was created. A tribunal must assess whether it assists in determining circumstances at the decision date.

A First-tier Tribunal must evaluate medical evidence holistically. It must not automatically discount evidence because it does not address Personal Independence Payment activities or descriptors. Hearing observations are only a short snapshot and require caution. Fairness will usually require the claimant to have an opportunity to comment on material observations before they are relied on.

IC v Secretary of State for Work and Pensions concerned a refusal of both components of Personal Independence Payment. The Secretary of State’s decision of 29 August 2023 was maintained on mandatory reconsideration. The First-tier Tribunal confirmed that decision on 20 August 2024.

The claimant appealed to the Upper Tribunal. The issues were whether the First-tier Tribunal had wrongly treated a post-decision MRI report as irrelevant, discounted medical evidence because it did not address PIP activities, and relied on hearing observations without giving the claimant an opportunity to comment.

1. Appeal allowed. The First-tier Tribunal made material errors of law. Its decision was set aside and the appeal was remitted to a freshly constituted First-tier Tribunal under sections 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

2. Section 12(8)(b) of the Social Security Act 1998 does not prevent reliance on evidence created after the decision under appeal. The material question is whether that evidence relates to circumstances obtaining at the decision date. The First-tier Tribunal focused on the fact that the MRI report post-dated the decision, without determining the period to which it related or giving adequate reasons for the weight given to it. That was an error of law.

3. The First-tier Tribunal also erred by treating medical evidence as lacking weight because it did not provide detailed, objective substantiation of functional effects across PIP activities. Medical evidence will commonly not have been prepared for tribunal proceedings or framed by reference to PIP descriptors. A tribunal must make its own findings of fact by considering all the evidence holistically, using its specialist expertise and inquisitorial fact-finding role. A fixed hierarchy that automatically gives such evidence less weight is unfair, contrary to natural justice, and incompatible with a fair hearing.

4. Observations made at a hearing are a limited snapshot, often made months after the decision date. They must be approached cautiously. Where material, the claimant must be afforded an opportunity to comment before the observations are relied upon. The First-tier Tribunal’s reasons did not show that this occurred and did not adequately explain its approach.

5. The fresh tribunal must make its own findings on all relevant evidence. It must not rely on the set-aside tribunal’s findings or conclusions, and must not take account of circumstances arising only after the decision date.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision, and remitted the case to a fresh tribunal.
• First-tier Tribunal: on 20 August 2024, confirmed the Secretary of State’s decision that the claimant was not entitled to either component of Personal Independence Payment.
• Secretary of State: refused an award on 29 August 2023 and maintained that decision on mandatory reconsideration on 10 November 2023.