UKE v Secretary of State for Work and Pensions

Personal Independence Payment descriptors address separate activities. A limitation arising from one health condition may qualify under more than one activity where it affects distinct functions, but the same functional limitation is not counted twice. Activity 7 concerns expressing and understanding basic and complex verbal information; activity 9 concerns face-to-face social engagement. A verbal limitation must be assessed under activity 7 even if it arises from social anxiety, where it results from a health condition and the descriptor criteria are met. The assessment must apply the standard in regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013. For mobility activity 1, social-engagement difficulties do not by themselves establish or defeat the route-following descriptors. Findings must address the claimant’s ability to follow familiar and unfamiliar routes.

The appellant, an anonymised claimant, challenged the Secretary of State for Work and Pensions’ decision continuing her Personal Independence Payment at the standard rate for both components. She reported autism spectrum disorder, anxiety, depression and selective mutism. The First-tier Tribunal upheld the decision, awarding points for needing social support to engage face to face but none for communicating verbally. It awarded 10 points for being unable to follow an unfamiliar journey without another person, but no further points for mobility activity 1.

After the First-tier Tribunal refused permission to appeal, the claimant renewed her application. The Upper Tribunal granted permission on questions concerning the assessment of verbal communication and journey planning and following in the context of selective mutism. The appeal was determined on the papers.

1. Appeal allowed. The First-tier Tribunal’s decision involved material errors of law. It was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 and remitted for rehearing before a differently constituted panel under section 12(2)(b)(i).
2. Daily living activity 7 assesses the transactional ability to express and understand basic and complex verbal information. Socially appropriate interaction, understanding body language and establishing relationships fall under activity 9. The Tribunal was right to distinguish the activities, but wrong to disregard a verbal limitation because it arose from anxiety about social engagement and had been recognised under activity 9. Distinct limitations in different activities may both score even when they arise from the same health condition; the same functional limitation is not counted twice.
3. The Tribunal needed to decide whether the claimant’s difficulties meant she could not speak basic or complex sentences to the standard in regulation 4(2A) on the majority of days in the required period. If a scoring descriptor was met, points should be awarded where the limitation arose from a health condition and was not simply a matter of choice. The Tribunal’s findings about her quiet voice, preference for written communication and workplace adjustments did not answer that question.
4. On mobility activity 1, the Upper Tribunal accepted the approach in MH v SSWP [2016] UKUT 531 (AAC), [2018] AACR 12: entitlement under activity 9 does not determine entitlement under mobility activity 1, and the individual circumstances matter. The difficulty engaging with others is not material to descriptors 1(d) and 1(f) by itself. MH v SSWP [2020] UKUT 185, cited by the First-tier Tribunal, was not authority for the proposition attributed to it. Although the First-tier Tribunal applied the correct approach to the relationship between the activities, it needed fuller findings about the claimant’s ability to follow a familiar route without another person.
5. Further facts were required, so the appeal was remitted. The rehearing must be oral, exclude the former panel and consider circumstances at the date of the Secretary of State’s decision. Later evidence is admissible if it relates to that time: R(DLA) 2 & 3/01.

1. Upper Tribunal (Administrative Appeals Chamber) — allowed the appeal, set aside the First-tier Tribunal decision and remitted the appeal for rehearing.
2. First-tier Tribunal (Social Entitlement Chamber) — on 16 April 2025, upheld the Secretary of State’s decision of 10 November 2024.