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FM against Social Security Scotland (Upper Tribunal - Social Security Chamber) [2025] UT 31 (14 May 2025)
URL: http://www.bailii.org/scot/cases/ScotUT/2025/2025ut31.html
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[2025] UT 31
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2025UT31
Ref: UTS/AS/25/0032
DECISION OF
Lord Young
ON AN APPLICATION FOR PERMISSION TO APPEAL
(DECISION OF FIRST-TIER TRIBUNAL FOR SCOTLAND)
IN THE CASE OF
FM
Appellant
- and -
Social Security Scotland
Respondent
FTS Case Reference: FTS/SSC/AE/24/02788
14th May 2025
Representation
For the appellant: Party
For the respondent: Ms Orla Chambers; Scottish Government Legal Department.
Decision
Permission to appeal is REFUSED.
Introduction
1.
The appellant submitted his first application for adult disability payment ("ADP") on 9
January 2024. That application identified three medical conditions which he suffered from. In
relation to some of the activities discussed within the application, the appellant stated that he
struggled with issues of dizziness and balance as well as pain. The respondent issued a notice of
determination on 25 March 2024 declining to make any award of ADP. In that notice, the appellant
was awarded 2 points only in respect of the descriptor activity of managing toilet needs. The
appellant sought a re-determination and made a written submission that he ought to be awarded
maximum points for eight listed activities as he was unable to carry out these activities safety, to
an acceptable standard, or repeatedly. The respondent issued a notice of re-determination on 31
May 2024 refusing an award of ADP. In the notice of re-determination, the appellant was awarded
zero points for both daily and mobility activities.
2.
The appellant appealed the re-determination decision. The First-tier Tribunal for Scotland
("FTS") heard evidence in his appeal on 4 December 2024. By a decision dated 11 December 2024,
the FTS refused the appeal and awarded zero points to the appellant for both daily and mobility
activities. The FTS issued a separate statement of reasons for their decision on 31 January 2025. The
statement of reasons is far from a model of clarity but, in summary, the FTS accepted that the
appellant had a number of medical conditions, including back pain, but was not satisfied that his
ability to carry out these various descriptor activities justified the awarding of any points. The FTS
expressed some doubt as to the reliability and credibility of the appellant's evidence. The appellant
sought both a review of the FTS decision and permission to appeal from the FTS to the Upper
Tribunal for Scotland ("UTS"). Both the application for review and the application for permission
to appeal were refused on 3 April 2025.
3.
On the same date that the FTS refused his appeal (11 December 2024), the appellant
submitted a second application for ADP. Although the respondent's initial decision on that second
application was to refuse to make an award of ADP, a notice of re-determination dated 26 March
2025 awarded the appellant 8 points across four descriptor activities with the result that he was
eligible for the daily living component of ADP. The appellant's entitlement to ADP on the basis of
this second application runs from 11 December 2024. The respondent accepts that the appellant
was entitled to make the second application when he did and accepts that the re-determination
decision dated 26 March 2025 currently governs the appellant's entitlement to ADP until the next
review date. At the permission hearing, the appellant indicated that it was his intention to appeal
the re-determination decision on the second application as he considered that further points ought
to have been awarded.
Grounds of appeal
4.
The appellant has intimated a number of grounds of appeal contained within various
documents. At the oral hearing, he confirmed that he maintained all grounds of appeal which were
intimated. As some of the grounds of appeal were set out in lengthy terms, I have summarised the
essence of these grounds of appeal below:-
(i) The respondent had effectively conceded the merits of the appellant's appeal to the FTS
by failing to properly challenge the terms of the grounds of appeal which the appellant had
submitted to the FTS. This was a preliminary point which the appellant raised in
correspondence on 22 August 2024 and which he repeated at the appeal hearing but the
FTS failed to deal with.
(ii) The respondent had failed to demonstrate that the appellant's grounds of appeal
lodged and argued before the FTS were unfounded and therefore the FTS decision was in
error.
(iii) The FTS had erred in its interpretation of regulation 7(2)(b) of the Disability Assistance
for Working Age People (Scotland) Regulations 2022. The concept of the activity being
undertaken "safely" meant without discomfort or pain during or after the activity in
question. If, as in the appellant's situation, an applicant experienced discomfort or pain
during or after the activity in question then he was not able to undertake the activity
"safely".
(iv) The FTS had erred by failing the consider the evidence put forward by the appellant
by reference to a report from a consultant neurosurgeon and the findings of an MRI scan
on his lumbar spine.
(v) The FTS had no evidence before it which would entitle it to make findings in relation
to the nature of the appellant's work at a warehouse.
(vi) The FTS violated "the principle of non-contradiction". There was a contradiction
between the respondent's re-determination decision dated 31 May 2024 which did not
accept that the appellant suffered from a back condition, and the FTS's acceptance that he
had a back condition but which then upheld the respondent's refusal to make an award. It
was said that the FTS upheld the re-determination decision dated 31 May 2024 which
included the finding that the appellant did not suffer from a back condition which was in
contradiction to its own assessment that he did suffer from a back condition.
(vii) The FTS failed to follow government guidance that an individual who can complete a
task only with significant pain or distress should be considered incapable of that activity.
pain could amount to significant discomfort. The evidence before the FTS confirmed that
the appellant experienced constant and chronic back pain amounting to "significant
discomfort" as identified in DG v Secretary of State for Work & Pensions. During the oral
hearing on permission, I understood the appellant to run this argument as part of his
submission on ground of appeal (iii) above.
(viii) The respondent's decision on the second application to award ADP demonstrated
that the FTS's decision on the same facts and circumstances was wrong. It was submitted
that there was a legal principle that "the same cause produces the same effect" such that the
decision of the respondent on the second ADP application had to apply in relation to the
first application which demonstrated that the FTS decision could no longer stand.
Discussion
5.
By statute, a decision of the FTS may be appealed to the UTS. The appeal is restricted to
points of law only, (section 46(2)(b) of the Tribunals (Scotland) Act 2014 ("the 2014 Act"). The UTS
has to be satisfied that any grounds of appeal are arguable, (section 46(4) of the 2014 Act). The
point of law must be a material one in the sense that it will make a difference to the outcome of the
case, (KW v Social Security Scotland 2024 UT 65 at para 14). An appeal to the UTS from a decision of
the FTS is not a re-hearing of the case.
6.
At the permission hearing, the appellant adopted each of the grounds of appeal contained
in his written responses. He advanced his oral arguments in a clear and helpful manner. The
respondent opposed this application for permission to appeal and argued that none of the grounds
of appeal were sufficient to justify permission being granted.
7.
I am satisfied that the various grounds of appeal intimated on behalf of the appellant fail
to raise any arguable points of law on a material issue in this case. Using the same numbering of
the grounds of appeal as in paragraph 4 above, my reasons for this conclusion are as follows:-
(i) Following the appellant lodging his appeal to the FTS, the respondent submitted an
appeal response on or about 21 August 2024 which was in the familiar form. That response
invited the Tribunal to uphold the re-determination decision and to find that the appellant
was not entitled to ADP. On receipt of this response, the appellant sent an email dated 22
August 2024 which included an invitation to the FTS "to fully uphold my appeal as the Social
Security Scotland failed to respond to my grounds of appeal, therefore, to consider that the Social
Security Scotland has tacitly accepted my Appeal". Accordingly, the appellant's submission
was that, as a preliminary matter, the respondent ought to be understood to have conceded
the merits of the appeal. The FTS decision and statement of reasons made no reference to
this preliminary issue although I was informed by the appellant that he had renewed that
submission before the FTS at the hearing in December 2024. If this point was insisted upon
at the appeal hearing then the FTS ought to have set out its determination on this
submission. However, I am satisfied that this preliminary point has no merit. The response
submitted by the respondent was in compliance with the terms of rule 21 of the First-tier
Tribunal for Scotland Social Security Chamber (Procedure) Regulations 2018 which
provides that the response must include "...(d) the position of the decision maker in
relation to the appellant's case". There is no requirement under the rules to respond to each
ground of appeal in turn although the respondent might, of course, decide to do so. The
response from the respondent made clear that its primary position was that the appellant
was not entitled to ADP and there is simply no basis for the contention that the respondent
had tacitly conceded the appellant's appeal. No arguable point of law is raised.
(ii) This ground of appeal discloses a misunderstanding of the nature of the statutory
appeal process. The appellant was dissatisfied with the re-determination decision dated 31
May 2024 and marked an appeal against that. On appeal, after hearing any evidence led by
the parties, the FTS may uphold the original determination or may make a new
determination (s.49 of the Social Security (Scotland) Act 2018). Thus, the appeal to the FTS
involves a fresh determination of the appellant's entitlement to the benefit in issue. The
focus of the FTS is whether the evidence before it is sufficient for the benefit in issue to be
awarded. In effect, this ground of appeal is no more than a broad assertion that the FTS
should have found in favour of the appellant but such an assertion does not raise a specific
point of law.
(iii) & (vii) I shall deal with these grounds of appeal together as that is how the appellant
argued them at the permission hearing. The legal proposition advanced by the appellant
that "safely" in regulation 7(2)(b) of the 2022 Regulations means "without discomfort" is
not supported by an analysis of the regulation itself. "Safely" is defined in regulation 7(3)(a)
as meaning "in a manner unlikely to cause harm to the individual.....with consideration given to
(i) the likelihood of harm, and (ii) the severity of the consequence of that harm". Discomfort is
not synonymous with harm. Harm denotes an injury of some sort and the reference to
"severity of the consequence of that harm" indicates that there may be occasions when a
minor level of injury does not mean that the activity was unsafe. I was not directed to any
other wording in the 2022 Regulations which supported the appellant's broad proposition
that any form of discomfort on activity rendered the activity unsafe. The appellant sought
or discomfort could amount to an unsafe activity. I am not persuaded that DG v Secretary
of State for Work & Pensions is of any relevance to the construction of the 2022 Regulations.
It was a case concerning a completely different benefit, namely employment & support
allowance ("ESA"). The entitlement to ESA depends on differently worded descriptor
activities. Under the relevant regulations for ESA at the time, the descriptor activity for
mobilising included the words "without repeatedly stopping or severe discomfort". Thus, the
concept of "discomfort" was expressly in issue for that particular benefit. The 2022
Regulations do not refer to discomfort or pain during the activity as being sufficient to view
the activity as being performed unsafely. This ground of appeal does not identifiable an
arguable ground of appeal.
(iv) This ground of appeal is manifestly unfounded. Far from ignoring the evidence of the
neurosurgeon's report, the FTS quote the relevant terms of that report at para 12 of the
statement of reasons and have clearly taken that into account in its acceptance that the
appellant does suffer from a back condition (see para 16 of the statement of reasons). This
ground of appeal is unarguable.
(v) There was evidence before the FTS to make findings in relation to the nature of the
appellant's employment. This can be seen at para 10 of the statement of reasons in which
the appellant is quoted as describing his warehouse job as "quite a physical job". The report
from the appellant's neurosurgeon dated 25 October 2024 also describes his job as involving
"frequent bending and lifting". The FTS also had information as to his sickness record from
work (see paragraphs 15 & 17). It cannot be said that there was no evidence at all in relation
to his work at the warehouse in question. This ground of appeal is unarguable.
(vi) This ground of appeal is also based on a misunderstanding of the appellate structure.
As noted at paragraph 7(ii) above, the FTS made a new determination of the appellant's
entitlement to ADP. That determination included a finding that the appellant had a degree
of back pain but that he was not so limited in terms of the descriptor activities as would
give rise to an entitlement to ADP. As the respondent reminded me by reference to Social
Security Scotland v FK 2024 UT 23, the presence of a medical condition alone is not sufficient
to trigger an entitlement to ADP, what is in issue is the function of the individual in light
of that medical condition. The FTS did not contradict itself by coming to the same ultimate
conclusion as the respondent but with different reasoning. This ground of appeal is
unarguable
(viii) The short answer to this ground of appeal is provided in the respondent's written
submission. The second application for ADP relates to a later period of time to that under
consideration in the first application for ADP. Each application must be determined on the
basis of the evidence put forward at the relevant time. It is not correct that the same decision
must follow on each application. Indeed, as these decisions involve difficult and often
nuanced factual assessments it would not be unusual for different decision makers to come
to different conclusions based on the same or similar evidence. In any event, the appellant's
argument on this ground of appeal is undermined by his own intention to lodge an appeal
in relation to the second application. That intention discloses that he does not accept that
the respondent's decision on the re-determination of his second application is final and
correct. Any appeal which he marks in relation to that second application could potentially
result in his ADP award being removed. This ground of appeal does not raise an arguable
point of law.
Conclusion
Permission can only be granted if there are arguable grounds of appeal on a point of law (section
46 of the Tribunals (Scotland) Act 2014). As that statutory test is not met, permission is refused.
Lord Young
Member of the Upper Tribunal for Scotland