WB v Secretary of State for Work and Pensions

A tribunal determining a personal independence payment appeal must investigate and decide every disputed activity sufficiently to enable proper factual findings. It must hear the appellant’s evidence on those activities and give a fair opportunity to address material assessment evidence. A failure to do so may be a material procedural irregularity and error of law, even where the tribunal gives reasons based on the written bundle. The need to avoid delay does not displace the requirement for proper consideration of the issues and effective participation. Where material factual findings remain necessary, the Upper Tribunal should ordinarily set aside the decision and remit the appeal for rehearing by a fresh tribunal.

WB appealed against a First-tier Tribunal decision which had confirmed an award of the standard rates of the daily living and mobility components of personal independence payment. The First-tier Tribunal hearing lasted approximately 16 minutes. It questioned WB about only three of the disputed daily living activities and did not address several other disputed activities during the hearing.

The Upper Tribunal considered whether the First-tier Tribunal had failed to discharge its inquisitorial duty, had made inadequate factual findings and reasons, and had conducted a procedurally unfair hearing. The Secretary of State supported the appeal and invited remittal.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.
2. At the substantive stage, the Upper Tribunal had to be satisfied on the balance of probabilities that the First-tier Tribunal had made a material error of law. That threshold was met.
3. The First-tier Tribunal knew that WB was experiencing pain, but addressed only three of the eight disputed daily living activities and did so in about four minutes. It did not investigate several activities which it went on to determine, or give WB an opportunity to comment on the PA4 assessment report. It therefore failed to explore and resolve conflicts in the evidence.
4. The inquisitorial duty required the tribunal to hear evidence and explore whether, and how, WB could carry out all the disputed activities at the relevant time. The overriding objective in rule 2 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 required fair and just case management, with delay avoided only so far as compatible with proper consideration of the issues and effective participation.
5. The omissions were procedurally irregular, affected the fairness of the proceedings and were capable of making a material difference to the outcome. Further findings of fact were necessary. The First-tier Tribunal was best placed to evaluate the evidence using its medical and disability expertise, so the appeal was remitted for rehearing before a fresh tribunal.
6. The fresh tribunal was directed to assess entitlement by reference to circumstances obtaining when the Secretary of State made the decision on 15 December 2022. Later evidence was admissible only insofar as it related to those circumstances, applying section 12(8)(b) of the Social Security Act 1998 and the cited authorities. No view was expressed on the proper level of WB’s entitlement.

• Upper Tribunal (Administrative Appeals Chamber): the First-tier Tribunal decision was set aside for material errors of law and the appeal was remitted for rehearing by a fresh tribunal.
• First-tier Tribunal (Social Entitlement Chamber): on 14 July 2023 it confirmed the Secretary of State’s decision awarding WB the standard rates of both PIP components. The Upper Tribunal recorded the decision as dated 16 February 2024.