EL v Secretary of State for Work and Pensions

A hearing is not fair where a party’s representative is unable to participate for a significant period because of technical difficulties, and the tribunal proceeds without addressing whether it is fair and just to continue. In a PIP appeal, the tribunal must assess the evidence holistically when deciding whether a claimant can engage with other people face to face. It must not focus exclusively on workplace interactions where the evidence concerns anxiety and social engagement more generally. A material procedural irregularity or error of law requires the decision to be set aside and the appeal remitted for a fresh hearing before a differently constituted tribunal.

The appellant appealed against a First-tier Tribunal decision upholding the refusal of her fresh PIP claim. The FTT had conducted a remote telephone hearing, but the appellant’s representative was unable to participate for at least 15–20 minutes because of technical difficulties. The appellant challenged the decision on procedural fairness grounds and contended that the FTT had erred in its treatment of daily living activity 9, engaging with other people face to face.

The Upper Tribunal considered whether the hearing had been conducted fairly and whether the FTT had properly evaluated the evidence relevant to activity 9.

1. Appeal allowed. The FTT’s decision involved errors of law. It was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, and the appeal was remitted under section 12(2)(b)(i) to a fresh tribunal.
2. The overriding consideration on the procedural ground was fairness. The appellant’s representative had been unable to participate in the telephone hearing for at least 15–20 minutes. That was not a fleeting technical problem. The FTT had failed to address whether it was fair and just to proceed in the representative’s absence, contrary to regulation 2(1) and (2)(c) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.
3. The second ground was also made out. In assessing daily living activity 9, the FTT had to consider the evidence in the round, including evidence that anxiety affected engagement with friends, family and unfamiliar people. The tribunal had to consider whether any of the activity 9 descriptors applied and, if not, explain why. A focus on workplace interactions could not displace that wider assessment.
4. The Upper Tribunal made no finding on entitlement to PIP, the applicable component or the rate. Those matters were for the new tribunal, which had to make its own findings of fact.
5. The rehearing had to assess circumstances existing when the Secretary of State made the decision under appeal, namely 10 January 2022, because section 12(8)(b) of the Social Security Act 1998 prevented consideration of circumstances not obtaining at that time. The fresh hearing was to be oral and before a tribunal none of whose members had previously decided the appeal.

• First-tier Tribunal (Social Security and Child Support): Following a remote telephone hearing on 29 July 2024, the tribunal confirmed the refusal of the appellant’s PIP fresh claim. It refused applications to set aside its decision and for permission to appeal.
• Upper Tribunal (Administrative Appeals Chamber): The appeal was allowed. The FTT decision was set aside and the case remitted for reconsideration by a fresh tribunal.