Tribunal’s failure to distinguish between evidence of learning difficulties and learning disability amounted to error of law
PW by his appointee v Secretary of State for Work and Pensions
UA-2023-000041-PIP
[2023] UKUT 121 (AAC)
Background
The claimant had a learning disability and mental health problems and had been in receipt of disability living allowance (DLA) that included the lower rate mobility component and lowest rate care component on account of his support needs. In 2020, he was invited to claim personal independence payment (PIP). However, the claim was refused which, in turn, resulted in the termination of the DLA award.
The claimant’s mother, acting as his appointee, appealed the PIP decision, providing medical evidence including letters from the Adult Learning Disability Service that was providing support to the claimant. These confirmed that he had ‘a significant learning disability’ that required ‘a significant amount of support in most areas of his life’. Following an oral hearing of the appeal, the First-tier Tribunal awarded the daily living component of PIP at the standard rate but did not award either rate of the mobility component.
The claimant’s mother sought permission to appeal against the tribunal’s decision on several grounds. In particular, highlighting that the tribunal’s decision notice continually referred to the claimant’s learning disability as a learning difficulty, the claimant's mother proceeded to summarise further information provided by the Adult Learning Disability Services team, saying that –
‘It explains that the two terms get used interchangeably but are very very different. A Learning Difficulty is any learning or emotional problem, that affects, or substantially affects, a persons ability to learn, get along with others or follow convention. A Learning Disability, is a significant, lifelong condition, that starts before adulthood, affects development, and leads to help being required to (a) Understand Information, (b) Learn Skills, (c) Cope Independently. The NHS definition of a Learning Disability implies an IQ below 70, and only affects 2 per cent of the population, often getting confused with other conditions.’
Issue before the Upper Tribunal
Whether the tribunal’s failure to distinguish between evidence of learning difficulties and learning disability amounted to an error of law.
Decision
Appeal allowed and case referred to a new tribunal for a complete rehearing.
Reasons
Judge Jacobs highlights that it is not necessary to have a diagnosis of any particular condition in order to qualify for PIP, as entitlement depends on a claimant showing that their activities are limited by their ‘physical or mental condition’: section 80(1) of the Welfare Reform Act 2012.
However, Judge Jacobs goes on to point out that –
'A diagnosis of a particular condition is relevant evidence in deciding whether their limitations are likely to arise from their ‘physical or mental condition’. It may allow the tribunal to assess the reliability of the claimant’s evidence about the effect of their condition. It may also allow the tribunal to draw inferences about the nature and extent of the claimant’s limitations in the absence of evidence.
The particular diagnosis may not affect the outcome of the case. It may not be necessary to distinguish between diagnoses. It will only matter if the diagnosis affects the analysis of the claimant’s limitations.' (paragraphs 12 and 13)
Turning to the tribunal’s approach to assessing evidence of the claimant’s conditions, Judge Jacobs finds that –
‘… the record shows that the tribunal did not appreciate the importance of distinguishing between evidence of learning difficulties and learning disability… The best sense I can make of the tribunal’s reasoning as a whole is that it either: (a) treated the two terms as interchangeable; or (b) considered that there was no difference between them, or no practical difference for the purposes of entitlement.' (paragraph 14)
Judge Jacobs holds that this lack of clarity amounts to an error law –
'The evidence contained references to both learning difficulties and learning disability. These terms are used differently, with no consistent practice or authoritative meaning. The argument from the claimant’s mother relied on her son having a disability, which she saw as indicative of the nature and range of his limitations. The tribunal should have clarified what she meant in order to understand her argument. It should have kept the [difference] in mind when taking and assessing evidence from the claimant and his mother. It should have tried to identify the way in which those terms were used in the documentary evidence.'(paragraph 15)