Muhammad Hasnain v Secretary of State for Work and Pensions

Under rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, set-aside requires a procedural irregularity of the kind specified in rule 37(2). The tribunal’s dissatisfaction with its decision, its inability to justify it because of that dissatisfaction, or an appellant’s request alone does not meet that requirement. When an FTT uses its discretion to consider a PIP component not raised by the appeal, it must consider material circumstances, including whether the Secretary of State continues to support the award. Failing to consider that position is an error of law.

The Secretary of State’s decision of 2 February 2024 refused Muhammad Hasnain the daily-living component of PIP but awarded him the enhanced mobility component. Hasnain, acting through his appointee Kosar Parveen, appealed only the refusal of daily-living points. The FTT dismissed the appeal on 27 January 2025, leaving the mobility award in place despite doubts about its basis because the Secretary of State had not challenged it. On 13 February the FTT set aside that decision, saying it was unhappy with it and could not justify it. A newly constituted FTT reheard the appeal on 9 May, considered the mobility award and removed both PIP components. Hasnain appealed both FTT decisions. The issues were whether the set-aside had a lawful basis and whether the later FTT properly exercised its discretion to consider a component outside the appeal.

1. The Upper Tribunal allowed the appeal. Both FTT decisions were erroneous in law, but it set aside only the substantive decision of 9 May 2025.

2. Rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 requires a procedural irregularity in the proceedings, as specified by rule 37(2). The FTT’s unhappiness with its decision, the appointee’s request, and the FTT’s asserted inability to justify the decision did not establish such an irregularity. The inability to give reasons was linked to the FTT’s dissatisfaction, not to a procedural mishap. The original FTT had also explained why it left the unchallenged mobility award in place.

3. Under section 12(8)(a) of the Social Security Act 1998, the FTT could use its discretion to consider an issue not raised by the appeal. In deciding to bring the mobility award and the existing daily-living points into issue, however, it had to consider the Secretary of State’s position. His continued support for the award, including after the earlier FTT had raised concerns, was an obvious material consideration. The failure to take it into account was a material error of law.

4. The unlawful 13 February set-aside did not deprive the later FTT of jurisdiction. It remained in force when the FTT heard the appeal on 9 May, so the FTT was properly seized of it: see R(Majera) v SSHD [2021] UKSC 46; [2022] AC 461.

5. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal set aside the 9 May decision and remitted the appeal to an entirely freshly constituted FTT for an oral hearing. It declined to set aside the 13 February decision because doing so would leave the original, unreasoned decision in place and raise the difficulty of obtaining reasons for it. The Secretary of State was directed to file and serve a submission within one month clarifying whether he wished to raise issues about the appellant’s epilepsy or the points and PIP award made in February 2024, and explaining his position.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal. Set aside the FTT’s 9 May 2025 decision, left its 13 February 2025 set-aside decision in place, and remitted the appeal for a fresh oral hearing.
• First-tier Tribunal (Social Entitlement Chamber): Dismissed the appeal on 27 January 2025, leaving the mobility award in place. Set that decision aside on 13 February 2025. On rehearing on 9 May 2025, dismissed the appeal, set aside the Secretary of State’s decision and replaced it with a decision awarding no PIP.
• Secretary of State: On 2 February 2024, refused daily-living PIP but awarded enhanced-rate mobility PIP; this was the decision appealed to the FTT.