KW v Secretary of State for Work and Pensions

In assessing entitlement to Personal Independence Payment, a tribunal must address whether equipment used to reduce the effects of a condition is an aid and whether the claimant can perform the relevant activity to an acceptable standard under regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013.

A tribunal must also give adequate reasons when rejecting evidence of social, cognitive or journey-planning difficulties. It cannot discount such difficulties solely because there is no diagnosed mental health condition where other diagnosed conditions, and the evidence, may explain them. The assessment of engaging with others must concern social engagement with adults not well known to the claimant, including socially appropriate interaction, body language and relationships.

The appellant challenged a First-tier Tribunal decision of 3 June 2024 which had confirmed the Secretary of State’s decision of 23 August 2023 that he was not entitled to Personal Independence Payment.

The appellant had autistic spectrum disorder, schizotypal personality disorder and hyperacusis. The First-tier Tribunal dealt with the appeal on the papers and awarded two points for engaging with others face-to-face, but no points for the other disputed activities.

On appeal, the issues included the use of earplugs while cooking and washing, pain caused by noise, social engagement, and the ability to plan and follow journeys. The Secretary of State supported the appeal.

1. Appeal allowed. The First-tier Tribunal had made multiple errors of law. Its decision was set aside and the case was remitted for a fresh oral hearing before a differently constituted tribunal.

2. The tribunal failed to consider whether earplugs used to reduce noise while preparing food, washing and bathing were an aid. It also made no findings on the pain caused by noise, although that evidence was relevant to whether the activities could be done to an acceptable standard under regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013.

3. The tribunal gave inadequate and perverse reasons for limiting the award for engaging with others face-to-face. It treated the absence of a diagnosed mental health condition as decisive, without addressing the appellant’s autism, schizotypal personality disorder, hyperacusis, reported low mood and evidence of social impairment. Describing him as a natural recluse without explaining why his difficulties were voluntary rather than caused by relevant diagnosed conditions was unsustainable.

4. The tribunal had to consider social engagement on the majority of days and in a social context with adults not well known to the appellant. This included socially appropriate interaction, understanding body language and establishing relationships. It also had to consider whether overwhelming psychological distress affected engagement or journeys.

5. The tribunal further erred by rejecting asserted difficulties with cognition, memory and concentration merely because there was no specific medical evidence. It did not adequately address the appellant’s own evidence and the evidence recorded by the healthcare professional.

6. Although a paper determination had been procedurally permissible, the fresh tribunal was directed to hold an oral hearing and determine entitlement by reference to circumstances as at 23 August 2023.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision and remitted it for fresh determination.
• First-tier Tribunal (Social Entitlement Chamber): on 3 June 2024 confirmed the Secretary of State’s decision that the appellant was not entitled to Personal Independence Payment.