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KK against Social Security Scotland (Upper Tribunal - Social Security Chamber) [2025] UT 33 (22 May 2025)
URL: http://www.bailii.org/scot/cases/ScotUT/2025/2025ut33.html
Cite as:
[2025] UT 33
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2025UT33
Ref: UTS/AS/25/0030
DECISION OF
Lord Young
ON AN APPLICATION TO APPEAL
IN THE CASE OF
KK
Appellant
- and -
Social Security Scotland
Per
FTS Case Ref: FTS/SSC/AE/24/03808
Respondent
22 May 2025
Decision
The appeal is allowed. The decision of the First-tier Tribunal for Scotland ("FTS") dated 13
February 2025 is quashed. The decision is re-made in the same terms, except that:
(i) A new paragraph 5 is substituted as follows: "The appellant is entitled to the enhanced rate of
the mobility component of Adult Disability Payment for the period from 5 May 2024 to 5 May
2026.";
(ii) A new paragraph 6 is substituted as follows: "The Appellant has severely limited ability to
carry out mobility activities. He satisfies the mobility descriptor activity 1(f) and thus scores 12
points. This is sufficient to meet the threshold for an award at the enhanced rate in terms of
regulations 6 & 9 of the Disability Assistance for Working Age People (Scotland) Regulations
2022."; and
(iii) Paragraph 10 is amended by substituting "descriptor 1(f)" in place of "descriptor 1(d)".
Introduction
1.
The appellant submitted an application for Adult Disability Payment ("ADP") on 5th May
2024. Social Security Scotland ("the respondent") determined that application on 17 June 2024
and awarded the standard rate of daily living component but declined to make an award for the
mobility component. The appellant asked for a re-determination which was issued on 23 July
2024. The re-determination made an award in the same terms as the original determination. The
appellant appealed to the FTS. In their response to the appeal, the respondent argued that the re-
determination decision was correct and, in particular, that only 4 points were awardable in
respect of mobility descriptor 1(b) which was insufficient for an award of the mobility
component.
2.
The FTS issued its formal decision on 13 February 2025. The appeal was allowed in
respect that the FTS awarded the standard rate for the mobility component. The FTS was
satisfied that mobility descriptor 1(d) was established and that 10 points fell to be awarded in
respect of that activity descriptor. Full written reasons for its decision were provided on 14
March 2025.
3.
The appellant sought permission to appeal to the Upper Tribunal for Scotland ("UTS") on
the basis that 12 points ought to have been awarded by reference to mobility descriptor 1(f) with
the consequence that he would receive an enhanced rate of the mobility component. Permission
to appeal was granted by the UTS on 10 April 2025.
Ground of appeal
4.
The appellant's ground of appeal contends that the FTS's decision failed to give adequate
reasons for indicating why mobility descriptor 1(d) applied as opposed to mobility descriptor
1(f). Reference is made to Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345. The
appellant contends that he has provided evidence demonstrating that he is unable to follow the
route of any journey the vast majority of the time due to overwhelming mental distress caused
by stress and anxiety frequently leading to panic attacks. He contends that the FTS's decision
does not adequately explain why, on the evidence, the FTS made the award under mobility
descriptor 1(d) as opposed to 1(f).
5.
In its response to the notice of appeal, the respondent has confirmed that the appeal is not
now opposed. The respondent acknowledges that the FTS made findings suggesting that the
appellant struggled to make both familiar and unfamiliar journeys, and the FTS's decision did
not explain why descriptor 1(d) was selected rather than 1(f). In answer to a question raised by
the UTS regarding descriptor 1(e) being a potential alternative to 1(f) in this case, the respondent
confirmed that it did not consider that descriptor 1(e) was appropriate. The UTS will proceed on
that concession. The respondent proposes that the matter is referred back for a further hearing
before the FTS as to whether descriptor 1(d) or 1(f) is appropriate. The appellant's position is that
the UTS should re-make the FTS's decision rather than order a re-hearing.
Discussion
6.
The FTS heard oral evidence from the appellant in relation to his ability to travel from his
house to his work, and also to attend counselling or similar meetings. Importantly, the FTS found
his evidence to be credible in relation to his ongoing problems of leaving his house. The
appellant rarely leaves his house. In relation to his employment, prior to March 2024 the
appellant's employer expected him to attend his place of work on 3 days per week but the
appellant rarely managed to do so. His work pattern was then changed from 18 March 2024
requiring attendance on 1 day per week. The appellant produced print outs of his attendance
records for June, August, September and October 2024. In each of June and August, he attended
his office one day rather than the three days which were required for those months. In
September, he ought to have worked one day in the office (a lower number due to annual leave)
but he did not attend at his office in that month. In October, he ought to have worked from his
office on two days but he only managed to attend once. The overall statistics for those four
months confirm that he had 65 working days of which he ought to have worked in the office on 9
days but only actually attended on 3 days. The picture presented by the appellant's evidence
before the FTS and confirmed by these statistics is that even a familiar journey such as to his
normal place of work was one which he rarely managed to complete due to his mental health
issues. The FTS also found that he was unable to follow an unfamiliar journey without the
assistance of his partner as he would only attend counselling and AA meetings if his partner took
him. In his response to the UTS dated 13 May 2025, which I have no reason to question the
accuracy of, the appellant confirms that the vast majority of counselling or physiotherapy
meetings required him to be accompanied by his partner. On a few occasions when his partner
was not available, he would cancel the appointment; attempt but fail to attend; attend but require
to be collected; or attend only with significant prompting and assurances from his partner.
7.
The appellant's original application form for ADP drew no distinction between his ability
to follow different types of journeys. He answered "yes" to the two questions asking if he needed
help with a familiar route and with an unfamiliar route. In relation to each type of journey, he
said that he always needed such assistance. The evidence before the FTS demonstrates that the
appellant's mental health issues prevent him from leaving his house without assistance on the
majority of days. There seems little to differentiate between the appellant's ability to complete
"familiar journeys" and "unfamiliar journeys". As the respondent's response indicates, an
initially unfamiliar journey may become a familiar journey on a subsequent occasion so there is
not a rigid distinction based purely on the ultimate destination. Taking his place of work as the
best example of a "familiar journey", the evidence indicates that his mental health condition
prevented him from attending the office other than on 3 occasions over a 4 month period. In
assessing whether a mobility activity can be carried out, regulation 7 of the 2022 Regulations
directs attention to whether the activity can be carried out safely, to an acceptable standard,
repeatedly and within a reasonable time period. Regulation 12 directs attention to the question of
whether the individual's ability to carry out the mobility activity is impaired on each day of the
required period. Regulation 10(1)(a) of the 2022 Regulations provides that the relevant descriptor
for an individual is one which is satisfied on over 50% of the days of the required period. Where
the appellant rarely leaves the house at all and is only occasionally able to make familiar or
unfamiliar journeys when accompanied or prompted by his partner, it is appropriate to find that
mobility descriptor 1(f) applies. I do not consider that further delay is justified by sending this
matter back to the FTS to hear further evidence on the appellant's mobility issues. It seems very
unlikely that any further evidence will go much beyond that which is already contained within
the papers before the UTS. In these circumstances, I agree with the appellant's submission that
the appropriate course of action is to remake the FTS's decision under the power contained in
s.47(2)(a) of the Tribunals (Scotland) Act 2014 by finding that descriptor 1(f) is the appropriate
descriptor for the mobility component. I accordingly re-make the FTS decision in the terms set
out at the outset of this Decision.
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.
Lord Young
Member of the Upper Tribunal for Scotland