Tribunal Allows Appeal on Personal Independence Payment Due to Procedural Irregularities

OUTCOME: Allowed

1

UKUT 107 (AAC) Appeal No. UA-2024-001058-[NAME_6]

IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER

Between:

[NAME_1] Appellant - v -

Secretary of State for Work and Pensions Respondent

Before: Upper Tribunal Judge Scolding KC Decided on consideration of the papers

Representation: Appellant:

[redacted] Respondent: [redacted]

On appeal from: Tribunal:

First-tier Tribunal ([NAME_5] Chamber) Tribunal Case No: SC222/23/00118 Tribunal Venue: Chesterfield Hearing Centre Decision Date: 22 September 2023

SUMMARY OF

DECISION This appeal concerns procedural fairness and the approach that the Tribunal should take to the way in which it asks questions of those who are considered to be vulnerable. In particular, it cautions against asking “closed questions” to those who may find it difficult to elaborate on their answers to provide the Tribunal with the material needed. It also deals with issues of reasons and how Tribunals reach decisions

Keyword: Personal Independent Payment- general: [NAME_1] -v- [NAME_6] ([NAME_6]) Appeal no. UA-2024-001058-[NAME_6] NCN. [2025] UKUT107 (AAC) 107 (AAC)

2 DECISION

As the decision of the First-tier Tribunal involved the making of an error of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the First-tier Tribunal for rehearing by a fresh tribunal.

DIRECTIONS

A. The case is remitted to the First-tier Tribunal for reconsideration.

B. The new Tribunal should not involve the panel members previously involved in hearing the appeal on 22 September 2023.

C. The new Tribunal must not take account of circumstances that were not obtaining at the time the (then) Secretary of State made her decision dated 18 May 2022 about [NAME_1]’s entitlement to personal independence payment ([NAME_6]): see section 12(8)(b) of the Social Security Act 1998 and R(IB) 2/04 at paragraph 188. Later evidence is admissible, provided it relates to the circumstances at the time of the decision: see R(DLA) 2/01 and R(DLA) 3/01.

D. If the parties have any further written evidence to put before the First-tier Tribunal, this should be sent to the relevant HMCTS regional tribunal office within four weeks of the issue of this decision.

E. The First-tier Tribunal hearing the remitted appeal is not bound in any way by the decision of the previous First-tier Tribunal. Depending on the findings of fact it makes, the new Tribunal may reach the same or a different outcome from the previous Tribunal.

F. Copies of this decision, the permission to appeal decision, and the submissions on behalf of the Secretary of State dated 14 November 2024, shall be added to the bundle to be placed before the First-tier Tribunal hearing the remitted appeal.

These Directions may be supplemented by later directions by a tribunal judge, registrar, or legal officer, in the [NAME_5] Chamber of the First-tier Tribunal.

REASONS FOR DECISION

What this case is about

1. This case is about the approach to the questioning of an Appellant by the First-tier Tribunal when undertaking their inquisitorial role. I find that the mode of questioning did not enable the Appellant to participate fully and

[NAME_1] -v- [NAME_6] ([NAME_6]) Appeal no. UA-2024-001058-[NAME_6] NCN. [2025] UKUT107 (AAC) 107 (AAC)

3 failed to follow up or clarify answers to questions posed. This case is also about whether the Tribunal correctly evaluated the evidence that it received. I find that the Tribunal did not correctly evaluate the evidence before them. This case also concerns whether the Tribunal gave adequate reasons for its decision. I find that it did not. Whilst the statement of reasons is extensive, it fails to say why it reached the conclusions that it did on some of the issues relevant and central to the appeal. The [NAME_6] supports this appeal.

The claim

2. The Appellant – whom I shall call [NAME_1] during this judgment, applied for Personal Independence Payment (“[NAME_6]”) on January 2022. On 18 May 2022, the Secretary of State for Work and Pensions (“[NAME_6]”) decided that she did not qualify for any points to be awarded either in respect of the Daily living or the mobility component. She appealed that decision.

The First Tier Tribunal

3. The First Tier Tribunal (“The Tribunal”) heard the appeal on 22 September 2023, along with a representative. The [NAME_6] did not attend. The Tribunal awarded [NAME_1] no points for either the Daily Living or Mobility activities.

Appeal to the Upper Tribunal

4. Permission to appeal was granted by Upper Tribunal Judge Butler. The grounds on which permission was granted were:

(a) The Tribunal may have made an error of law in evaluating the appellant’s evidence as vague when she answered the questions she was asked (and the Tribunal did not follow them up);

(b) It was not clear how the Tribunal had applied regulation 4(2A) to the appellant’s oral evidence about carrying out [NAME_6] activities. Upper Tribunal Judge Butler listed examples of this in paragraph 6 of her decision granting permission to appeal;

(c) The Tribunal may have made an error of law in terms of the adequacy of reasons for the decisions it reached; and

(d) There may have been procedural irregularity in the Tribunal asking the appellant closed questions and then not following these up to explore, or clarify, her answers.

4 Issues in the Appeal

Questioning of [NAME_1] and conclusion reached by the FTT that her evidence was “vague” - Grounds (a) and (d) set out above.

5. The Upper Tribunal Judge who granted permission to appeal noted that [NAME_1] was asked a series of closed questions to which the answer was “Yes” or “No” without further clarification, or follow up to allow [NAME_1] to expand or provide further information, and identified that this may be a procedural irregularity in the proceedings. I set out here the [NAME_6]’s submission on this issue:

“I have listened to the audio recording for the [NAME_7], and it is clear that the claimant was asked questions in a closed manner which resulted in her responding with “yes” or “no”. For example, at the 07.43-minute mark in the recording the claimant is asked by the Tribunal “you were working in [NAME_8]?” and the claimant answered “yes”. It is not clear if the claimant would have expanded on this as the Tribunal immediately moved on to ask “was there much standing up there?”. The claimant has answered with “yes, that was difficult as well, I could have regular breaks” but again the Tribunal moved on immediately to the next question asking, “do you still work at [NAME_8]?” with the Claimant answering “no”.”.

6. The Upper Tribunal Judge also granted permission because at various points in the statement of reasons issued by the Tribunal, it says that the evidence from [NAME_1] was “vague”. Four examples given by [NAME_1] when seeking permission to appeal are set out here:

“2.i At paragraph 37 of the Statement of Reasons (“SOR”), the Tribunal records that the appellant was asked how she knows whether she has sufficient money when she buys something from [NAME_9] and that “her response was somewhat vague in respect of this.” However, the [NAME_7] shows that the Appellant answered clearly saying, “I don’t, that’s where I have issues sometimes, I fall into like an overdraft.”

2.ii At paragraph 45 of the SOR the Tribunal states that [NAME_1] was asked how long it took her to walk four aisles in Aldi and that “Her response was vague, the said that she could use her son’s pushchair to walk with.” However, the [NAME_7] shows that the appellant answered the question clearly, saying that she had “no idea” how long it would take and then provided further information about how she managed in Aldi and the help she received.

5 2.iii. At paragraph 54 of the SOR the Tribunal states that when [NAME_1] was asked about snacking during the day “she did not give an unequivocal answer”. However, the recording shows that although she spoke somewhat hesitantly, the appellant provided a clear answer, saying “I’d probably just have...most of the time I just do like a cup of tea and just live off a cup of tea to be honest but um, otherwise it would just be like a biscuit or something with the cup of tea.”

2.iv. At paragraph 55 of the SOR the Tribunal has record that in response to a question on what difficulties she had taking medication, “She told the Tribunal that she could not remember the difficulties”, but the appellant had actually said that the difficulty was that she could not remember to take the medication ([NAME_7] 44.10 - 45.45). The Tribunal then goes on to say at paragraph 57 that the appellant’s response to a question about taking her medication was “vague”. However, the [NAME_7] (46.10 - 47.25) shows that the appellant’s response was clear, having been asked again what her difficulty was the appellant said, “like I say, it’s just because I forget.” The appellant then explained in answer to a further question about aids to assist her, that she used a pill box which enabled her to know when she had missed taking her medication, but the Tribunal has not made any reference to use of a pill box in the SOR. Needing to use an aid such as a pill box would potentially have scored the appellant 1 point for descriptor 3(b)(i).”

7. The [NAME_6] said the following about this:

“However, it is not entirely clear upon listening to the recording as to whether the claimant was being vague, or simply answering to the closed questioning style employed at time by the Tribunal. In my view, the Tribunal would have benefitted from asking the claimant follow up questions to allow it to fully understand what the claimant's difficulties with an activity such as budgeting decisions. It’s not clear to me, when listening to the recording, why the claimant needs her father, or her son’s father to help with paying her bills. The Tribunal could have reasonably enquired further about this rather than taking the position of the claimant being vague in her responses. This would have also allowed the claimant the opportunity to fully participate in line with rule 2(2) (c) of the Tribunal Procedure (First-Tier Tribunal) ([NAME_5] Chambers) Rules 2008.

6 “Dealing with a case fairly and justly includes (c) Ensuring, so far as is practicable, that the parties are able to participate fully in the proceedings.”

My conclusion on whether these matters amount to procedural unfairness.

8. I have carefully listened to the recording of the Tribunal’s hearing. Whilst not every question was “closed”, there were a significant number of questions (not just those set out above) where the answer would either be “Yes” or “No” and no real room was given for clarification, follow up or explanation on several occasions. The representative for [NAME_1] asked questions at the end of the hearing, which enabled [NAME_1] to answer much more fully about her difficulties with various daily living activities such as her ability to cook or prepare food, her struggles to go to new places, her neglect of self in respect of washing, dressing, washing, social engagement and also her physical pain when undertaking various tasks.

9. I fully recognise that all Tribunals are under significant pressure with the number of cases that they do in a day. This case involved most [NAME_6] descriptors, and the time allocated for a hearing may not always be sufficient. However, it is vitally important that all Tribunals recognise that the overriding objective includes both flexibility (Rule 2(2)(b) of the Tribunal Procedure (First Tier Tribunal) (SEC) Rule 2008 but also by ensuring, “so far as is practicable, that the parties are able to participate fully in the proceedings”. This applies when exercising any power under the Rules (Rule 2(3) of the Rules set out above).

10. The papers before the Tribunal had evidence that [NAME_1] said

“I find it difficult to say verbally what my difficulties are because my dyslexia mean I mix my words up and can’t think of the right words” (appeal to the First-tier Tribunal – “FTT” - p23 of the FTT bundle).”

11. In her claim form she says (p36 of the FTT bundle):

“Every day I get my words muddled and I start to stutter in sentences. I have difficulty explaining things and sometimes people help me finish my sentence and think of words. This is due to my dyslexia and anxiety. I take longer to answer someone’s questions face to face. Which other people jump in before me so I don’t get a chance to try, it upsets me and makes me feel stupid and leads to feeling depressed. I struggle talking on the phone and when I can’t understand someone or hear them properly, I have put the phone down on them because I get anxious”.

7 12. In her claim form, the Appellant also says (p36 of the FTT bundle):

“Most days I struggle to read because i struggle to focus so it takes me a long time to get through one sentence and my dyslexia can make me take longer to read because the words get mixed up which gets me anxious because i feel myself get hot with embarrassment. I get help by the people around me”.

13. There are also several places in the claim form, and other supporting documentation which identifies that [NAME_1] has anxiety and becomes overwhelmed when meeting new people and that “sometimes she won’t speak at all, I get sweaty and start to get palpitations” (p36 of 281). She also says that she “struggles with my memory” (p38 of 281 of the FTT bundle).

14. The information obtained by the HCP upon assessment was that [NAME_1] has had longstanding anxiety and depression and borderline personality disorder, and has both medication and counselling for these. The Tribunal also had her GP records which identify that in May 2022, [NAME_1] was under the care of the local NHS Foundation Trust Team with a diagnosis of “moderate depression with traits of emotionally unstable personality disorder” (p159 of 281) which has been the case since October 2018. An outpatient letter dated 19 May 2022 to [NAME_1] identifies that she was “anxious when she had to leave the house” (p160 of 281), and that she was having counselling. She was prescribed various forms of medication. A letter from her Consultant Psychiatrist identified that she was under mental health treatment between February 2022 – June 2022 with a provisional diagnosis of “emotionally unstable personality disorder, mixed anxiety and depression and PTSD and was prescribed medication for the same” (p231 of 281). It also noted that she had taken an overdose in September 2021 (p174 of 281) and identifies that her mental health support came from her engagement with an IDVA (independent domestic violence adviser), and that [NAME_1] had been the subject of serious sexual assault and abuse in 2021 (p174 of 201 and p202-209 of 281).

15. Alongside this, there was written evidence from her mother who said that she offers a “variety of core prompts to help her with her everyday tasks. These range from micro to extensive solutions” (p219 of 281). There was also evidence from her former partner setting out that her mental health has had a significant impact upon her health.

16. I set out this material in some detail because this information, put together, suggests that [NAME_1] would have greater difficulties than many in being able to articulate, remember, clarify and be clear about her daily living activities in the light of her various conditions (I have not set out her physical conditions here

8 which would also impact upon her ability to focus and concentrate). In those circumstances, it was incumbent upon the Tribunal to think about how she could be best facilitated to give evidence, as it set out in the President’s Practice Direction on Child, Vulnerable Adult and Sensitive witnesses, paragraph 6, issued on 30 October 2008. The Practice Direction was, in AM (Afghanistan) v Secretary of State for Home Department and Lord Chancellor [2017] EWCA Civ 1323, the Court of appeal held that the directions “are to be followed” and “failure to follow them will most likely be an error of law “(per Sir Ernest Ryder at [30] and Gross and Underhill LJJ at [47] and [50].

17. In RT v SSWP (PIP) [2019] UKUT 207, Upper Tribunal Judge Poynter dealt with this Direction and what it means in practical terms for First Tier Tribunals (given the way that the Practice Direction is drafted to cross reference the Safeguarding Vulnerably Groups Act 2006, it would encompass practically every person who appears before the FTT in cases concerning sickness or ill health benefits). At paragraph 80 onwards, Judge Poynter gave advice on the practical implications for the work of the [NAME_5] Chamber. It identifies that the features of the [NAME_5] Chambers, with its inquisitorial jurisdiction, its focus upon practicality and a facilitative approach to questioning means it will not be necessary in the vast majority of cases to adapt these procedures for someone to be able to give evidence despite being a vulnerable adult (paragraph 86 of (RT)).

18. Judge Poynter encouraged First-tier Tribunals to do as follows at paragraphs 89 – 91):

“However, whether a failure to follow the Practice Direction is material falls to be decided on the facts of each individual case. The First-tier Tribunal would therefore be well-advised to adopt the practice of considering—as part of its preview of each appeal—whether special arrangements need to be adopted to facilitate the giving of evidence.

90. Such arrangements might perhaps be no more than deciding that what would normally be regarded as an acceptable robust style of questioning was not appropriate in an individual case.

91. In circumstances where special arrangements have been put in place—or where there might be doubt as to whether they should have been—it would be wise for the tribunal to record briefly in its [NAME_7] that the Practice Direction had been considered. A single sentence should suffice. If a written statement of reasons is requested in such a case, the statement must then explain what the tribunal decided about the requirements of the Practice Direction and why”.

9

19. There is no reference to the Practice Direction having been considered on the facts of this case, despite there being considerable evidence from the papers that this may need to be considered. Consideration of this in advance, even if only quickly, may have led this Tribunal to alter its style of questioning and/or to seek to understand why [NAME_1] may well be answering in the way that she did. It is not mentioned in the Statement of Reasons or Notice of Decision.

20. I note that Upper Tribunal Judge Poynter suggested that for the reasons he sets out in his judgment that the Practice Direction may require revision to avoid the difficulties inherent in the way that “vulnerability “is identified. I note that such a revision was announced on 29 July 2014. At the date of this judgment (25 February 2025) no such revision has been promulgated.

21. However, there have been considerable changes to the Practice Directions in other jurisdictions which represent the growing understanding of all the judiciary of the need to give due consideration to how people can participate fully and in depth consultation papers on how to manage such individuals within the civil justice system - see the Civil Justice Council Paper: Vulnerable Witnesses and Parties within Civil Proceedings: Current Position and Recommendations for Change (February 2020). In April 2021, the Civil Procedural Rules were amended. The overriding objective now sets out that dealing with a case justly includes ensuring that parties can participate fully, and that parties and witnesses can give their best evidence. A Practice Direction has been issued to support this change (Civil Practice Direction 1A. This adopts a very broad definition of vulnerability (paragraph 4 of the Practice Direction), and that if such vulnerability is in evidence, to consider their ability to express themselves in proceedings or put their evidence before the court, and to make appropriate provisions for such. In the Employment Tribunal, there guidance from the President issued in 2020 which gave guidance as to the nature and type of adjustments that may be required. The Family Procedure Rules has Practice Direction 3A and 3AA both of which deal with the participation of vulnerable persons (who are given a very wide definition) of individuals in family proceedings. The Equal Treatment Bench Book provides examples of the kinds of adjustments that can be made at different stages of proceedings (Chapters, 2, 4 and Appendix B).

22. Of most direct relevance to this case, there is a section in the Equal Treatment Bench Book on “Questioning Techniques to avoid”. This makes reference to the national training programme run for all those who appear in the criminal courts about advocacy for the vulnerable published by the Inns of Court College of Advocacy in 2022. I set out the relevant extract from the [NAME_1] -v- [NAME_6] ([NAME_6]) Appeal no. UA-2024-001058-[NAME_6] NCN. [2025] UKUT107 (AAC) 107 (AAC)

10 Bench Book (2024 edn, Chapter 2) below as they may be useful to think about in proceedings before the [NAME_5] chamber. This says:

“The Inns of Court College of Advocacy have produced training for advocates which has also been used by the Judicial College, with a useful set of principles of questioning and conduct, which should normally be adopted. Before any topic is introduced, the witness should be given a headline telling them what the topic is, eg: “I am going to ask you questions about when you were nine”, or “I am going to ask you questions about what happened in the shed”. During questioning:

• Pronouns should not be used. When referring to a person, the name of the person should be used on every occasion.

• Questions should be simple and contain only one matter. There should be no compound questions.

• There should be no directive leading questions, also known as “tag” questions, which are both coercive and unnecessarily complex.113 A directive leading question (eg “You are lying, aren’t you?”) has been found to elicit significantly less accurate responses than a non-directive leading question (eg “Are you lying?”).Closed leading questions, where the question suggests an answer, should also be strictly limited and the responses may be of limited evidential value.”

23. I am not suggesting that each Tribunal needs to consider all of these points in every case. Far from it, and many of the techniques suggested (emanating here principally for use in the criminal courts) are already used on a day-to-day basis in the [NAME_5] chamber which is well used to dealing with people with disabilities and vulnerability. However, it does show that consideration should always be given to how someone can achieve their best evidence, and (if necessary) to use a variety of facilitative techniques to make reasonable adjustments so this can happen.

24. Neither the Civil Procedure Rules nor the Family Procedure Rules are directly applicable to the [NAME_5] Chamber and the formality of court proceedings, and its attendant jargon is largely absent in the First-tier Tribunal. However, given the focus in the Practice Direction and the ways in which the issue of vulnerability has been recognised and explored in many jurisdictions in the United Kingdom is a sign that these issues should be considered, discussed and acted upon.

11 25. I consider that the First Tier Tribunal made material errors of law in the way that it questioned [NAME_1], with such amounting to procedural unfairness.

26. Further, as identified above, I consider that the First Tier Tribunal failed to take account of material evidence given by [NAME_1] in the answers she gave during the course of the FTT hearing, and so erred in law in the conclusions that it reached based upon a mistaken premise which was not borne out by the oral evidence given at the hearing.

Application of Regulation 4(2A) to the oral evidence in respect of [NAME_6] activities.

27. As identified above, and at paragraph 6 of the permission decision by Upper Tribunal Judge Butler, whilst the Tribunal does refer to Regulation 4(2A) in its statement of reasons, the Tribunal’s conclusions on the descriptors does not grapple with various parts of [NAME_1]’s evidence which suggested that, for at least some of the descriptors, [NAME_1] may not be able to carry them out either safely, or to an acceptable standard, or within a reasonable period of time or repeatedly (Regulation 4(2A) of the [NAME_6] Regulations 2013). The following examples are given by [NAME_1]’s representative in her application for permission:

(a) [NAME_1] could chop an apple or vegetables this caused her pain and that her timings when cooking were: “always off, I never get it right to be honest” and that she would eat a meal if it looked “edible” ([NAME_7], 39: 28 – 43.35).

(b) The Appellant gave reasons for giving up her job, which included suffering from pain all over her body from her neck to her ankles, but pain is not mentioned in the statement of reasons as a reason for stopping work ([NAME_7] paragraph 57.00).

(c) That if [NAME_1] did too much activity on one day, that would cause pain so that [NAME_1] would not be able to go out the next day, but this was not referred to in the statement of reasons in respect of her mobility descriptor and whether or not she could therefore walk “to an acceptable standard”.

(d) The [NAME_6] healthcare professional had recorded the appellant as saying she could walk 50 – 60 metres in 2 minutes but would then need to rest for 15 minutes (p22 of 281 of the FTT bundle). The Tribunal’s statement of reasons omits the need to rest, and the impact this may have given the need to consider Regulation 4(2A).

28. The [NAME_6] agrees with these submissions. I also agree with them. It appears as if the Tribunal failed to consider relevant evidence and failed to give reasons

12 why it concluded that this information does not give rise to [NAME_1] not being able to carry out some of the descriptors within a reasonable period of time, safely or to an acceptable standard.

Adequacy of reasons

29. The Upper Tribunal Judge granted permission on the basis that for some of the conclusions reached, the Tribunal failed to give adequate reasons. A tribunal does not have to consider and/or refer and address all pieces of evidence when explaining its decision. However, for the reasons given by [NAME_1] and agreed by the [NAME_6], I consider that the Tribunal failed to give adequate reasons about the following, material issues before the Tribunal:

(a) The conclusion reached at paragraph 61 of the Statement of Reasons that [NAME_1]’s evidence was not credible that if a customer asked her a question, “she would get anxious”. However, the [NAME_7] records that the appellant says that she would get “really really anxious” talking to a customer if they asked her a question and would just go to her supervisor (ROP 53:40). The healthcare professional in March 2022 had assessed the appellant as having limited capability for work related activity due to the risk to her mental health (p68 of 281 of the bundle). The Tribunal did not give reasons for finding that the appellant’s evidence was not credible in this context.

(b) At paragraph 95 and 101 of the Statement of Reasons, the Tribunal found that [NAME_1] remaining in her pyjamas all day was a lifestyle choice, because she would get dressed when she went to work (for 2 days a week). The Tribunal should have explained how they reached that decision given the Claimant’s uncontradicted evidence that she had low mood and lack of motivation.

(c) At paragraph 116 of the Statement of Reasons, the Tribunal concluded that if [NAME_1] encountered a diversion when driving and her journey was not necessary she would turn around and go home. The Tribunal concluded from that evidence that “obviously if she had somewhere to go she would follow a diversion.” It is not clear what and why the Tribunal considered that she would follow a diversion and if that meant she could follow a route reliably (as the journey does not have to be “necessary” under the relevant descriptor).

Disposal 30. Having decided the Tribunal’s decision involved the making of material errors of law, it is appropriate to exercise my discretion to set aside the Tribunal’s decision dated 28 September 2023 under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having done so, section 12(2)(b) of that Act

13 provides that I must either remit the case to the First-tier Tribunal with directions for its reconsideration or remake the decision.

31. Neither party has asked me to remake the decision. In any event, it is necessary for further facts to be found. The First-tier Tribunal is best placed to evaluate the evidence, and to make appropriate findings of fact.

32. I therefore remit [NAME_1]’s appeal for rehearing before a new First-tier Tribunal. It will make a fresh decision about [NAME_1]’s entitlement to [NAME_6].

33. Although I have set aside the Tribunal’s decision dated 22 September 2023, I am not making any findings, or expressing any view, about whether [NAME_1] should be entitled to [NAME_6]. The next First-tier Tribunal will need to hear evidence and make its own findings of fact and provide its reasoning for the decision it reaches.

Fiona Scolding KC

Judge of the Upper Tribunal

Authorised by the Judge for issue on: 25 March 2025