CPAG search

Summary

The claimant had ADHD (attention deficit/hyperactivity disorder), and although awarded the high rate of the care component was not awarded the high rate of the mobility component. The First-tier Tribunal held that the claimant was not entitled to the high rate of that component of DLA via the ‘severe mental impairment’ route. That was because the tribunal considered, on the basis of ‘current medical opinion’, that ADHD did not arise (as required by the statutory definition at regulation 12(5) of the Social Security (Disability Living Allowance Regulations) 1991, SI No.2890) from ‘a state of arrested development or incomplete physical development of the brain’).

Judge Wright allowed the claimant’s further appeal and substituted a decision that the claimant was entitled to the high rate of both the mobility and care components. In so deciding, the judge held (with the agreement of the Secretary of State and based on medical evidence provided by the Secretary of State) that in general terms ADHD is caused by arrested development or incomplete physical development of the brain. In the claimant’s case, the Secretary of State submitted in the claimant’s particular case that this was the case, with reference to evidence of the claimant’s ‘intellectual disability’, which was ‘possibly the strongest marker of arrested or incomplete brain development’ (the Secretary of State’s submission, quoted at paragraph 13). Both at time of the decision under appeal and at the time of the First-tier Tribunal’s decision, there was in fact a body of medical opinion to support the finding that ADHD resulted from arrested development or incomplete physical development of the brain, and the tribunal had erred in not explaining the evidential basis for the ‘current’ medical opinion which it considered supported its contrary view. Alternatively, the tribunal had erred in failing to adjourn to obtain expert evidence on this matter. That was indicated by other statements in the tribunal’s reasons referring to an alleged absence of ‘specialist and technical medical evidence’ to support ADHD coming within regulation 12(5) (paragraphs 18–19).

The judge pointed out that satisfying the requirement to have arrested development or incomplete physical development of the brain does not fully satisfy regulation 12(5), which also requires that this state results in ‘severe impairment of intelligence and social functioning’. Further, the severe mental impairment route was set out at section 73(3) of the Social Security Contributions and Benefits Act 1992, and that requires that the claimant must also meet the condition, defined in regulation 12(6), to have ‘severe behavioural problems’. The judge said: ‘While individuals with ADHD may meet these criteria in certain cases, each case will need to be considered on its individual merits; a claim must, of course, be considered on the basis of the facts and the relevant evidence. It is anticipated that cases in which a person with ADHD alone meets the conditions in reg. 12(5) and (6) are likely to be relatively rare’ (paragraph 14). But on the specific facts of the present case, where the claimant also had low IQ, speech and language difficulties, behavioural issues, anxiety, low self-esteem and autism spectrum disorder (ASD) traits, it was accepted that all these additional requirements were also met. (The judge did not need to make further findings regarding the other condition in section 73(3), namely that the claimant was also entitled to the high rate of the care component, as that had already been awarded.)

Comment from CPAG

This decision is authority that, at least in general terms, someone with ADHD has ‘arrested development or incomplete physical development of the brain’ for the purposes of the severe mental impairment route; but it should be noted that the other conditions in that route must also be satisfied. Judge Wright also repeated his approval of the approach to the legal meaning of that wording, set out in NMcM v SSWP (DLA) [2014] UKUT 312 (AAC). However, in this case nothing turned on that decision, which holds that both those phrases refer to ‘the brain’ (ie, not to arrested emotional or functional development) as suggested in SC v SSWP [2010] UKUT 76 (AAC).

Summary

In this decision, the Supreme Court considered the application of descriptor 9(c) of the assessment for the daily living component of personal independence payment: ‘needs social support to be able to engage with other people’. The decision arose from a decision in this case of the Scottish Court of Session, in which it had been held that social support did not have to be provided contemporaneously with the social engagement, but that there did have to be a ‘temporal or causal link’ of some sort between the help given and social engagement. 

The Supreme Court first rejected the argument that ‘prompting’ could never amount to ‘social support’ for the purposes of descriptor 9(c). The Secretary of State was concerned that allowing prompting as social support risked confusion with help that was merely provided on the basis of familiarity with the claimant. The court held that prompting could constitute social support for 9(c), bearing in mind that the claimant has to need support from someone who is not just familiar, but who is experienced in assisting engagement in social situations. What brings the prompting with descriptor 9(c) is that to be able to engage with others the claimant needs support to come from someone trained or experienced in assisting people to engage in social situations (paragraphs 34–35). 

Regarding the timing issue (ie, of when the support is provided), the court did not consider that descriptor 9(c) was limited to cases where a claimant needs social support actually during the face-to-face engagement  (paragraph 46). The court was mindful of the fact that each claimant was an individual with individual needs, and that different techniques might help in different cases or at different times. Discussion before and possibly after engagements might be used to help the claimant deal with encounters without the physical presence of the supporter. For example, it was easy to contemplate a discussion in advance of a medical examination (paragraphs 41–42). However,  the court rejected the Court of Session’s formulation of a need for a ‘temporal or causal link’ of some sort between the help and the activity. It was better instead to pay close attention to the words of  the descriptor, the ‘required period condition’ (ie, the three-month qualifying period and the nine-month prospective period) and the requirement for the claimant to ‘need’ the social support (paragraphs 47–48).

Summary

The claimant, having been refused ADP by Social Security Scotland (SSS), appealed to a tribunal – ie, the First-tier Tribunal for Scotland. The claimant was unrepresented and the tribunal determined the appeal on the papers (ie, without a hearing), awarding the claimant both the daily living component and the mobility component. The tribunal stated that it had evidence before it that the claimant had been awarded universal credit (UC) by a tribunal (ie, an HM Courts and Tribunals Service tribunal) in 2023. That decision had held that the claimant had limited capability for work-related activity on the basis of satisfying descriptors (ie, in the work capability assessment or ‘WCA’) regarding inability to get to a specified place without being accompanied by another person and engagement in social contact with someone unfamiliar not being possible for the majority of the time. The tribunal in the present case held that those descriptors had equivalent in ADP and that it could use the UC award to make an award of ADP.

Lady Poole held that the tribunal had erred in law, quashed the decision and remitted the case to a fresh tribunal to reconsider the claimant’s entitlement to ADP. There was no rule stating that entitlement to UC is a passport to entitlement to ADP. Nor was there a rule stating that satisfying certain descriptors in the work capability assessment for UC meant that certain descriptors in the ADP rules were therefore satisfied. UC entitlement was under different rules, and the function of the First-tier Tribunal for Scotland in an ADP appeal was to apply the ADP rules. The judge did agree that evidence from the UC award could be relevant in deciding an ADP appeal: ‘Depending on the nature of the claim for universal credit, the effect on health conditions on aspects of functioning may be in issue in both a claim for ADP and universal credit. The same evidence may be relevant to both claims’ (paragraph 9). But in the present case, the tribunal did not have available to it the evidence that was before the tribunal in the UC appeal, or a full statement of reasons from that tribunal. What the tribunal in the present case did, held Lady Poole, ‘was infer from a decision notice about universal credit that there was entitlement to ADP’ (paragraph 10). That was an error of law. The tribunal commented that it had very little medical evidence before it – ie because Social Security Scotland had not gathered any. But what the tribunal should have done was to have considered using its own powers to obtain further evidence.

Lady Poole offered further observations about what the First-tier Tribunal for Scotland ought to do, as problems of limited evidence were not confined to the present case. In particular, claimants of ADP are not as a matter of course required to undergo medicals. Nevertheless, tribunals must have a proper factual basis for making an award. If the tribunal uses its powers to obtain further evidence, there were at least three potential sources. Firstly, there was the claimant. For example, the claimant in this case could have been requested to obtain copies of his GP records, provide the WCA report or other medical information from his UC appeal, if he still had it, or attend an oral hearing to give his own evidence to the tribunal. The second source was SSS. The SSS Charter included a statement of its function to assist claimants in gathering relevant information, which might have included contacting the DWP to try to recover the appeal papers from the UC appeal. The third potential source was third parties. The tribunal had the power to order any person to produce documents in their control and that could include, for example, government departments such as the DWP or HM Courts and Tribunals Service. The tribunal could also consider a case management stage in advance of a full hearing to consider whether powers to obtain further evidence should be used. But what the tribunal cannot do ‘is make a decision to award ADP which is unsupported by facts properly found on the basis of evidence’ (paragraph 25).

Comment from CPAG

It is surprising that any tribunal should need reminding that ADP and UC are different benefits with different entitlement criteria, and that it has powers to obtain further evidence. However, the judge in the present case does acknowledge that evidence from a UC claimant can be relevant in an ADP appeal. Representatives wishing to point to such evidence should, where possible, ensure that it is in the appeal papers. The judge’s observations that evidence from the claimant at a hearing is also evidence is a reminder that medical evidence is not the only source of evidence.

Summary

The claimant had anxiety, depression and borderline personality disorder and had both medication and counselling regarding those. She appealed against a decision that she was not entitled to personal independence payment (PIP). The First-tier Tribunal refused the claimant’s appeal and said at various points in its written reasons that the evidence given by the claimant at the hearing, in the form of responses to questions put to her by the tribunal, was ‘vague’. 

Judge Scolding KC allowed the claimant’s further appeal and remitted the case to a fresh tribunal. Judge Scolding agreed with the Secretary of State that the tribunal had used ‘closed’ questions to the claimant, requiring ‘yes’ or ‘no’ answers, and had not followed these up to explore or clarify the claimant’s answers. In the circumstances, the tribunal had ‘made material errors of law’ in the way it questioned the claimant, ‘with such amounting to procedural unfairness’ (paragraph 25). The context was the ‘vitally important’ requirement at rule 2 of Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chambers) Rules 2008 for tribunals to be ‘flexible’ and to ensure that parties to an appeal are able to ‘participate fully’ in the proceedings (paragraph 9). In addition, having listened to the audio recording of the hearing, the judge agreed that in fact the tribunal had wrongly characterised the claimant’s answers as ‘vague’ when in fact they were clear.

The circumstances of this case included the claimant’s anxiety and reported dyslexia, meaning that she often had difficulty in explaining things and answering questions. There was relevant evidence in the papers about such problems, including from healthcare professionals as well as the claimant and her mother. Judge Scolding considered that this suggested that the claimant would have greater difficulties in answering questions, and that the tribunal should have given consideration to how she could be best facilitated to give such evidence, as set out in e President’s Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses, paragraph 6, issued on 30 October 2008. In RT v SSWP (PIP) [2019] UKUT 207 (AAC), Judge Poynter had observed that the definition of a ‘vulnerable’ witness was likely in fact to cover nearly all appellants in health and disability appeals, and that all benefit tribunals were supposed to act in an inquisitorial, enabling manner anyway; so the test of whether a theoretical failure to follow the Practice Direction was whether the failure was actually a material error on the facts of the individual case. In the present case, Judge Scolding considered that there was no indication that the tribunal had considered the Practice Direction on the facts, ‘despite there being considerable evidence from the papers that this may need to be considered’ (paragraph 19). That failure was therefore a material error in this case, amounting to procedural unfairness. 

Comment from CPAG

All tribunals, whatever the individual facts, are supposed to act fairly and justly, including by giving claimants a chance to participate fully, and are supposed to act inquisitorially to get at the truth. Given that, it is very arguable that any tribunal that uses ‘closed’ questions demanding ‘yes’ or ‘no’ answers that it then fails to explore or clarify, will have erred in law, irrespective of the further requirements in the Practice Direction. That said, in the present case the claimant’s well-documented difficulties in giving oral evidence clearly did require the Direction to be considered. Arguably therefore, the tribunal’s (additional) failure to do that may, in the context of showing an error of law, be considered as the cherry on the cake

Summary

The claimant applied for and was refused personal independence payment (PIP) on three separate occasions in 2017, 2018 and 2020. The claimant did not challenge the refusals. The refusal of the 2017 claim (but not the other two) was in 2021 the subject of a ‘LEAP’ (Legal Entitlement and Administrative Practices) review by the Secretary of State. That was because the 2017 decision (unlike the 2018 and 2020 decisions) had been taken before the issue of new official guidance regarding some relevant PIP test cases (MH v SSWP (PIP) [2016] UKUT 531 (AAC), reported as [2018] AACR 12; and RJ, GMcL and CS v SSWP (PIP) [2017] UKUT 105 (AAC), reported as [2017] AACR 32). The claimant was invited to request a mandatory reconsideration of her ‘PIP claim(s)’. That resulted in a mandatory reconsideration of the 2017 refusal, dated 25 June 2021, which reconsidered the decision but again declined to award any PIP. The claimant appealed, and the First-tier Tribunal awarded the claimant the standard rate of the mobility component, from the start date of the 2017 claim, for an unlimited period. In its written reasons, the tribunal explained that was because the claimant’s condition was unlikely to change.

Judge Wikeley allowed the Secretary of State’s further appeal, and substituted a decision that the award of the mobility component made by the tribunal ran only until the date of the claimant’s second claim for PIP made in 2018. The tribunal had erred by failing to specify an end date of the award in circumstances where the claimant had, in 2018, made a second and unsuccessful application for PIP. Decisions were (subject to revision, supersession, appeal or judicial review) final, with the effect that there were not to be two decisions in respect of the same benefit for the same person for the same period. A line of authority from the Upper Tribunal had adopted that principle with the effect that a tribunal cannot make an open ended award where there has been a later decision on a later claim for the same benefit. Representatives for the claimant accepted that, if this was ‘straightforward’ case, the period under consideration would have been limited by the date of the subsequent 2018 claim (paragraph 23). 

However, it was argued for the claimant that, in the circumstances, she should be regarded as having made a valid appeal against all three refusals of PIP, having made (in 2021) timely mandatory reconsideration requests regarding all three. Under regulation 9 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, SI No.381 (the ‘Decisions and Appeals Regulations’), a decision can be revised at any time where it arose from ‘official error’. It was argued that all three decisions arose from official error and so were capable of revision at any time. Judge Wikeley rejected that. It was the case that (as submitted by the Secretary of State), the claimant had in 2021 made a valid any time revision request of the 2017 decision. The LEAP review was on the basis that that decision arose from official error, as it was taken before the issue of the official guidance in 2018, with DWP staff at that time – as Judge Wikeley put it – ‘labouring under a misapprehension as to the true position under PIP law’. But that context meant that, under the LEAP review, only the 2017 decision fell to be reconsidered (the later decisions were made after the publication of the guidance). Aside from that, applying the decision in PH and SM v SSWP (DLA)(JSA) [2018] UKUT 404 (AAC), reported as [2019] AACR 14, the judge thought there was some force in the Secretary of State’s argument that the claimant’s 2021 mandatory reconsideration request, ‘cannot be said to raise any issue of official error, whether explicitly or implicitly’ in the 2018 and 2020 refusals (paragraph 51). 

In the alternative, it was argued for the claimant that the time limit for revisions of the 2018 and 2020 decisions on any grounds had in fact not started to run at all, as the notifications of the PIP refusals had only given the basic one-month time limit for applying, and had not mentioned the possibility of a late application – ie, within the absolute time limit of 13 months. The 2021 request for mandatory reconsideration, therefore, included such requests regarding those decisions. Rejecting that, the judge held that the requirement in regulation 7 of the Decisions and Appeals Regulations to state the time limit for a mandatory reconsideration merely required statement of the basic time limit itself, and not the possibility of extending that time limit, which is what the absolute time limit was. The claimant’s arguments did not ‘address the conceptual distinction between a time limit and an extension to a time limit’ (paragraph 70). There was nothing in the claimant’s attempt to argue that the Secretary of State’s approach was to breach the right to a fair trial in Article 6 of the European Convention on Human Rights, as that applied to appeals but not to ‘the Secretary of State’s decision making processes’, and in any event, on the facts of the present case, the claimant could not be said to have been denied access to a relevant tribunal ‘in any meaningful sense’ (paragraphs 78 and 79). 

Comment from CPAG

As Judge Wikeley says, this case illustrates the additional complexity involved in LEAP processes. It also illustrates, regarding appeal rights, the difficulties that may arise for claimants once the time limit for an ‘any grounds’ revision has passed. It holds that decision notices do not need to have stated the possibility of a late request for such a revision, and (regarding any time revisions for official error) endorses the finding in PH that requests must at least implicitly raise the issue of official error. CPAG represented the claimant and has been granted permission to appeal to the Court of Appeal.

Decision in brief

Test is as in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 (applied in AK v Social Security Scotland [2024] UT 5) – must leave reader in ‘no real and substantial doubt’ but do not require consideration of every issue raised and decision has to be read ‘as a whole’ – tribunal refused care component, including regarding managing toilet needs – did not need to explain this despite claimant at the hearing referring to use of bath and toilet  door for support – no inference this was due  to a medical condition, and information available to tribunal included that claimant had not reported problems using the toilet in his application or on redetermination or in appeal application 

Decision in brief

In this case that was 13 weeks after the claimant’s operation fitting a stoma bag – Upper Tribunal observed that this is not the only case where Social Security Scotland (SSS) has challenged the start date of an award, and so it would assist tribunals if SSS provided information enabling tribunals to do that properly – SSS is reviewing appeal response templates accordingly, but in the meantime if there is a hearing, presenting officers from SSS should do this orally

Note from CPAG

For a decision similarly holding that the tribunal erred in not applying the required period condition to the start date of an award, this time in the context of an increased award following a change of circumstances, see Social Security Scotland v AM [2025] UT 28 (24 April 2025) (appeal number UTS/AS/25/0007); for a related decision, holding that the start date of an increased award of adult disability payment (ADP) for a claimant whose transfer from personal independence payment (PIP) to ADP was triggered by her notifying a change of circumstances to the DWP, so the ‘transfer’ ADP award had to be reviewed by SSS without a further application, was the date of notification of the change to the DWP, with arrears of increased ADP to be calculated, see Social Security Scotland v AM [2025] UT 29 (8 May 2025)) (appeal number UTS/AS/25/0011).

Decision in brief

Claimant was given 579 page bundle by HMRC on day before the hearing – tribunal proceeded with a telephone hearing of the appeal – declined jurisdiction regarding 2017–18 appeal on basis that claimant had not requested mandatory reconsideration – tribunal erred in holding an unfair hearing – in light of the large volume of material sent to claimant on day before the hearing, should have considered whether to use its discretionary powers to adjourn.

Comment from CPAG

This decision makes no reference to the decision of the Court of Appeal in HMRC v Arrbab [2024] EWCA Civ 16, which held the mandatory reconsideration rule in tax credits was invalidly made and was struck down.

Decision in brief

It was clear that the tribunal was aware that the claimant was in pain during the hearing and may have thought that limiting their questioning was the best way to avoid making it worse – but in doing so, the tribunal did not properly exercise its inquisitorial duty and failed to resolve conflicts in the claimant’s evidence it identified.