PIP – It is the task of the Tribunal to test evidence and inconsistencies.
LH v Department for Communities (PIP)  NICom 19
The claimant made a claim for Personal Independence Payment in February 2020, but was awarded 0 points by the Department for both the daily living and mobility component of PIP.
An appeal was lodged and later heard by a Tribunal in June 2022, where it was decided that the claimant was not entitled to an award under either component.
An appeal was lodged with the Commissioner.
The application to appeal to the Commissioner was made on the grounds of:
- Procedural errors resulting in unfairness;
- Insufficient and perverse fact finding; and
- Both paucity and illogicality of reasoning.
The Department challenged the appeal on the basis that the reasons provided gave an adequate explanation of the Tribunal’s decision.
The Departmental decision relied upon a telephone assessment with the healthcare professional, which the appellant argued was unsatisfactory, and itself an error of law.
The Commissioner determined that it was not wrong for the Department to make an evaluation over the phone – as it had adopted the practice during the Covid-19 pandemic, and it would be treated in a similar fashion to a face-to-face assessment and therefore there was not an error in law at this point.
It also held that the Tribunal adequately discussed the evidence of auditory problems and found the assessor’s report to be both comprehensive and helpful in the making of their decision and therefore there was no error of law. It was also held, in contrary to the appellant’s arguments that the Tribunal spent an adequate amount of time analysing the claimant’s other ailments and conditions.
There was also note made of the relevance of Universal Credit determinations and that the tests for both PIP and UC are different where it is based on disability. In this case, no evidence of another assessment was provided as evidence in the appellant’s case.
They did not that inconsistencies between the evidence and abilities outlined in the PIP 2 form did impact the Tribunal’s decision at para 34-35, but that this did not constitute an error in law:
‘This inconsistency in the various sources of evidence is a feature of the Tribunal’s approach to the individual descriptors; the Tribunal was entitled to (and did) rely on inconsistency to draw the inference that the appellant’s actual abilities were greater than in the accounts in the claim form, or the oral evidence.’
‘It is uncomfortable for litigants when findings are made that directly challenge a person’s stated abilities, but it is the task of the Tribunal to test the evidence, and inconsistencies, where they are thought to be material rather than so slight as to be insignificant, may be of assistance in reaching conclusions of fact.’
The Commissioner held that the Statement of Reasons provided by the Department was a thorough examination of the materials and evidence, and that they provided a clear and sufficient explanation for their reasoning. It was held that no material error of law occurred, and the appeal was denied.
However, an important note was made regarding the layout of the Tribunal’s Statement of Reasons at para 44:
‘Whilst the Statement of the Tribunal’s Reasons was comprehensive, dealing well with some complex issues and its deductions from the evidence, I would, finally, make a general point as to its structure, which I would ask other Tribunals to heed: the way it is set out has made it complicated to read and note up, and to reference in this decision, because it is largely without paragraph numbers. The separation of aspects of the decision into (as happened here) Conditions, Activities in Dispute and Findings of Fact, and its dealing with the various descriptors seriatim is not a substitute for continuous paragraph numbering, which enables the reader to reference the points made easily.’
You can read the Commissioners full decision ‘here’.