NK v Secretary of State for Work and Pensions

For the purposes of Social Security Act 1998, section 12(8)(a), the issues in a Personal Independence Payment appeal are the descriptors disputed between the parties. Descriptors for which the Secretary of State has awarded points are not automatically put in issue merely because the claimant seeks more points for the same activities.

The tribunal has a discretion to consider reducing or removing those points, but must exercise that discretion consciously and judicially. Procedural fairness requires more than a general warning that the award may be reduced. Once the tribunal is minded to reconsider an undisputed descriptor, it should identify the descriptor and give the claimant a fair opportunity to address the concern.

The appellant appealed against a decision of the Secretary of State dated 21 January 2024 awarding Personal Independence Payment at the standard rate for both the daily living and mobility components. She sought higher points for activities on which points had already been awarded, as well as points for further activities.

The First-tier Tribunal reduced the points awarded for several activities and substituted a decision that the appellant was not entitled to PIP. It considered that the appellant had put every descriptor for which she had received points in issue and warned her generally that the award could be reduced.

The appellant appealed to the Upper Tribunal on grounds concerning the scope of the appeal under section 12(8)(a) of the Social Security Act 1998 and procedural fairness. The central questions were whether the First-tier Tribunal had correctly identified the issues and whether its warning was sufficiently specific.

The appeal was allowed. The First-tier Tribunal’s decision involved errors of law, was set aside under section 12 of the Tribunals, Courts and Enforcement Act 2007, and the case was remitted for a fresh oral hearing before a differently constituted tribunal.

1. Scope of the issues. Section 12(8)(a) of the Social Security Act 1998 provides that the tribunal need not consider an issue not raised by the appeal. In this context, an issue is what is in dispute between the parties. The relevant issues were whether the appellant met descriptors scoring more points than those awarded by the Secretary of State. The awarded descriptors were not automatically in issue merely because the appellant challenged the assessment for the same activities.
2. The First-tier Tribunal had a discretion to consider removing points already awarded, but it was not bound to do so. Its statement of reasons treated the appellant as having put those points in issue by seeking more points. That was a misdirection of law and a failure to exercise the statutory discretion properly.
3. Fair warning. A general warning that the tribunal may reduce or remove an award is insufficient where the tribunal is minded to reconsider particular undisputed descriptors. The claimant must be given a fair opportunity to address the tribunal’s specific concerns. The necessary response will depend on the circumstances and may include an adjournment where further evidence or advice is reasonably required.
4. Here, the appellant was unrepresented at the hearing and gave evidence through an interpreter. The tribunal repeatedly checked that she understood its general power to reduce points, but did not identify the particular descriptors it was considering reducing. That was procedurally unfair and material because the cumulative reduction removed entitlement to both components of PIP.

The case was remitted to a fresh First-tier Tribunal, which was not bound by the earlier findings and had to assess the appellant’s circumstances as at 21 January 2024.

1. First-tier Tribunal (Social Entitlement Chamber): following a hearing on 23 December 2024, reduced the appellant’s assessed points and substituted a decision that she was not entitled to PIP. Its statement of reasons was issued on 26 January 2025.
2. First-tier Tribunal (Social Entitlement Chamber): refused permission to appeal on 25 March 2025.
3. Upper Tribunal (Administrative Appeals Chamber): granted permission on 21 May 2025, allowed the appeal, set aside the First-tier Tribunal’s decision and remitted the case for reconsideration by a fresh tribunal.