EW v Secretary of State for Work and Pensions

When assessing Personal Independence Payment activities, a claimant’s ability must be considered at a time when it is reasonable for the claimant to undertake the activity. Where it is reasonable for the claimant to work, the assessment must take account of the claimant’s condition after completing a working day. Motivation to work does not, without more, establish an ability to undertake daily living activities without prompting. Tribunals must address material evidence about fatigue, motivation and prompting, and explain any rejection of that evidence.

The claimant sought Personal Independence Payment, reporting difficulties with daily living and mobility activities arising from several health conditions, including fatigue and reduced motivation. The Secretary of State awarded four points for one daily living descriptor and no other points. The First-tier Tribunal dismissed her appeal.

On appeal, the Upper Tribunal considered whether the First-tier Tribunal had erred by treating the claimant’s fatigue as resulting from full-time employment and by inferring from her ability to work that she could undertake daily living activities without prompting.

1. Appeal allowed. The First-tier Tribunal’s decision involved errors of law and was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
2. The First-tier Tribunal had accepted that the claimant experienced fatigue but had not made sufficient findings about its impact on her daily life or ability to undertake the activities in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013. Its reasoning did not adequately address the claimant’s evidence that she required prompting because of her mental health difficulties, autism spectrum disorder and attention deficit hyperactivity disorder.
3. The fact that a claimant is sufficiently motivated to work does not establish that the claimant can undertake daily living activities without prompting. The tribunal must consider the general position and explain its treatment of central evidence. The guidance in GG v SSWP (PIP) [2016] UKUT 0194 (AAC) was material.
4. Ability to undertake an activity must be assessed at a time when it is reasonable for the claimant to undertake it, and in the context of activities reasonably undertaken earlier. Since PIP is available to people who work, it was reasonable for the claimant to continue working. If it was reasonable for her to undertake an activity after work, her ability had to be assessed after completion of the working day. The approach in TR v SSWP [2016] AAC 23 and AE v SSWP [2024] UKUT 381 (AAC) was followed.
5. The case was remitted under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 to a differently constituted First-tier Tribunal for a complete reconsideration.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision and remitted the case for rehearing by a differently constituted panel.
• First-tier Tribunal (Social Entitlement Chamber): dismissed the claimant’s appeal and confirmed the Secretary of State’s decision on 27 August 2024.