BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scotland Upper Tribunal Decisions


You are here: BAILII >> Databases >> Scotland Upper Tribunal Decisions >> RC against Social Security Scotland (Upper Tribunal - Social Security Chamber) [2025] UT 32 (19 May 2025)
URL: http://www.bailii.org/scot/cases/ScotUT/2025/2025ut32.html
Cite as: [2025] UT 32

[New search] [Contents list] [Printable PDF version] [Help]
2025UT32
Ref: UTS/AS/24/0135
DECISION OF
Lord Young
ON THE APPEAL
IN THE CASE OF
RC,
per Money Matters
Appellant
- and -
Social Security Scotland,
Per Scottish Government Legal Directorate
Respondent
FTS Case Reference: FTS/SSC/AE/24/00384
19 May 2025
Decision
The appeal is allowed. The decision of the First-tier Tribunal for Scotland ("FTS") is quashed so far
as relating to activity 2 of the mobility component. The case is remitted to the FTS for a new hearing
of the appeal confined to the question of the appellant's entitlement in relation to activity 2 of the
mobility component. The FTS may, but need not, be differently constituted from the panel that
heard the original appeal in this case.
Introduction
1.
The appellant applied for Adult Disability Payment ("ADP") on 25 May 2023. His
application was amended on the 16 July 2023. The application was refused by Social Security
Scotland ("SSS") on 2 October 2023. At that time, SSS assessed him as being entitled to 4 points for
the daily living component and 4 points for the mobility component. The appellant sought a
redetermination after which his daily living component increased to 6 points but his mobility
component remained at 4 points.
2.
The appellant appealed to the FTS. On 14 November 2024, the FTS issued its decision
refusing his appeal. The FTS found that he was entitled to 6 points for daily living activities based
on preparing food (2 points); washing/bathing (2 points) and dressing/undressing (2 points). In
relation to mobility activities, the FTS found him entitled to 4 points for moving around.
3.
The Upper Tribunal for Scotland ("UT") granted permission to appeal in relation to one
ground of appeal which was in the following terms:-
"At paragraph 19 the Tribunal explain that the Appellant could stand and then move more
than 50 metres but no more than 200 metres either aided or unaided during the relevant
period. The reason for this finding in fact is that the Appellant completed Stage 1 of an
Exercise Tolerance Test at Cardiac Clinic in early 2024. The Medically Qualified Member
was able to advise the Tribunal that a patient would have to walk for 140 metres to
complete Stage 1 of such a test. We believe that the Tribunal failed to apply the law correctly
as to the Appellant's ability to complete this distance safely, reliably, and repeatedly. We
believe that if the law had been applied correctly the Appellant would have been awarded
descriptor C."
Discussion
4.
In their response to this appeal, SSS have confirmed that they do not oppose the appeal.
SSS do however, with reference to McAllister v Secretary of State for Work & Pensions 2003 SLT 1195,
observe that the UT must be satisfied that the ground advanced for allowing the appeal is well
founded and the basis on which the lower tribunal's decision is set aside must be made clear.
5.
In his appeal request to the FTS dated 11 January 2024, the appellant stated that he walked
at a slow pace and suffered from a shortness of breath causing him to stop. He said that he typically
did not walk further than 50 metres. Aside from medical records, the FTS was provided with a
Medical Report dated 15 June 2023 prepared for the appellant's Universal Credit claim which
described the appellant walking at a slow pace to his local shop; stopping half way for a 2 minute
rest; sitting at the shop for 5 minutes to recover; walking round the shop but stopping at each aisle
for a rest; resting for 5 minutes outside the shop; returning home carrying a single bag; and then
having to rest for the remainder of the day. This document is contained in the FTS case file (vol. II
at p125). In a written submission for the FTS prepared by the appellant's Welfare Rights Officer
(FTS case file, vol I, pp180-182), she notes that a description of the appellant walking for 15 minutes
needs to be clarified as to whether that is continuous walking or the overall time to walk a
particular distance including stops. The written submission observes that the SSS's decision on re-
determination includes "no consideration given to his ability to cover the distance in a reasonable time
period or to an acceptable standard." That submission argued that mobility descriptor 2(c) applied to
the appellant.
6.
The reasoning of the FTS on mobility activity 2 is set out in paragraph 19 of the Decision.
A single reason is provided for finding that descriptor 2(b) applies. That reasoning being that the
appellant completed stage 1 of an exercise tolerance test in early 2024 which would have involved
the appellant's walking a distance of 140 metres. The FTS have fallen into error by, on the face of
the decision, failing to recognise that the mobility activities set out in the table in schedule 1 require
to be determined by reference to regulation 7(2)(b) of the Disability Assistance for Working Age
People (Scotland) Regulations 2022. Regulation 7(2)(b) provides that the appellant must be able to
carry out the particular activity (i) safety, (ii) to an acceptable standard, (iii) repeatedly, and (iv)
within a reasonable time period. These four concepts being further defined in regulation 7(3). In
the present case, the appellant's representative undoubtedly raised the question whether his
walking to the local shop met all or some of these standards. On the face of its decision, the FTS
did not ask itself whether the distance which the appellant could walk was completed within a
reasonable time period and could be carried out repeatedly. The ability to walk 140 metres during
a single clinical test does not prima facie provide a sufficient practical assessment of the appellant's
mobility under the 2022 Regulations. The FTS failed to properly direct itself on the correct legal
question in relation to the appellant's mobility. The FTS required a fuller consideration of the
circumstances in which the appellant could walk particular distances followed by an assessment
of which descriptor was then the most appropriate one for the appellant.
7.
The appellant invited the UT to make an award for the mobility component of ADP which
failing to remit for a new hearing before the FTS. The SSS invited the UT to remit for a new hearing
to the FTS. I have re-considered the factual material contained with the FTS papers but have
concluded that it is not appropriate for me to re-make the decision on the appropriate mobility
descriptor. The papers reference various different walking distances and times taken by the
appellant. The approximate rest periods required by the appellant are not uniform. This is a
nuanced assessment which is best taken by the FTS on the basis of oral and documentary evidence
placed before it.
8.
I am satisfied that the outstanding matter of the appellant's entitlement to a mobility
descriptor should be remitted for a re-hearing by the FTS. I agree with the observations of Lady
Carmichael in SSS v AH & Others 2024 UT 63 at para 31 that there will be many occasions in which
the originally constituted FTS can deal with the matter sent for a re-hearing. I consider this to be
one such instance. The original constituted FTS misdirected itself on the legal test but there is
nothing within the original decision to cause any concern that the appellant would not obtain a
fair re-hearing before the same FTS. The direction which I make will be in the same terms as Lady
Carmichael made in SSS v AH & Others so that the re-hearing may be before the originally
constituted FTS or a different constituted FTS. As the appellant's original application for ADP was
made in May 2023, an important factor is securing an early date for the re-hearing. The form of the
re-hearing will be for the FTS to determine but I would expect that the FTS would provide each
party with an opportunity to submit any further evidence on mobility activity 2 relevant to an
assessment of the appellant's ability to carry out that activity in accordance with the tests set out
in regulation 7(2)(b).
Directions
1.
The new hearing may, but need not be, by a differently constituted tribunal.
2.
That hearing should be confined to the appellant's entitlement in relation to activity 2 of
the mobility component.
Lord Young
Member of the Upper Tribunal for Scotland
A party to this case who is aggrieved by this decision may seek permission to appeal to the Court of
Session on a point of law only. A party who wishes to appeal must seek permission to do so from the
Upper Tribunal within 30 days of the date on which this decision was sent to him or her. Any such
request for permission must be in writing and must (a) identify the decision of the Upper Tribunal to
which it relates, (b) identify the alleged error or errors of law in the decision and (c) state in terms of
section 50(4) of the Tribunals (Scotland) Act 2014 what important point of principle or practice would
be raised or what other compelling reason there is for allowing a further appeal to proceed.

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010