Social Security Case Law - Summer 2024

Headnote

Refusal to consider evidence regarding risk and safety that post-dates the original PIP decision can amount to an error of law.

Background

The claimant suffers from a number of conditions, including epilepsy, with her first seizure occurring in 2002. In 2017, the claimant was able to manage the conditions with medication and diet, even being permitted to drive again. In February 2018, she was refused a claim for Personal Independence Payment and the decision not to award her was upheld via Mandatory Reconsideration. While the claimant awaited the Appeal decision her conditions deteriorated, and she had two further tonic-clonic seizures (November 2020 and January 2021), and her licence was taken away.

JS appealed the First-Tier Tribunal decision which determined that her seizures in November and January were not relevant as they did not affect the assessment of risk at the time of the decision in February 2018 before her condition deteriorated. JS appealed the decision to the Upper Tribunal.

Legal Issue

The Tribunal has to determine whether the First-Tier Tribunal erred in law by refusing to consider evidence related to risk and safety that post-dated the PIP decision under appeal.

Relevant Legislation

• Section 12(8)(b) of the Social Security Act 1998

Relevant Case Law

• R(DLA) 2/01
• R(DLA) 3/01
• JS v SSWP 2011 UKUT 243 AAC

Decision

The Tribunal determined that the First-Tier Tribunal had erred in law as they did not consider the additional evidence regarding the client’s epilepsy and the risk that her condition could pose at any time. The Judge also highlighted that there was not enough information within the written reasons as to show how much of a consideration was given to the risk of the claimant’s condition and without further inquisition of the application of Section 12(8)(b) – ‘circumstances not obtaining at the time when the decision was made’ – the Tribunal erred in its blanket refusal to consider the evidence.