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You are here: BAILII >> Databases >> Scotland Upper Tribunal Decisions >> MM against Social Security Scotland (Upper Tribunal - Social Security Chamber) [2025] UT 43 (17 June 2025)
URL: http://www.bailii.org/scot/cases/ScotUT/2025/2025ut43.html
Cite as: [2025] UT 43

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2025UT43
Ref: UTS/AS/24/0117
DECISION OF
The Rt. Hon Lady Carmichael
ON AN APPEAL
IN THE CASE OF
MM
per Money Matters
Appellant
- and -
Social Security Scotland
per Scottish Government Legal Directorate
Respondent
FTS Case Reference: FTS/SSC/AE/23/01191
Appellant: Gemma Stewart-Cowie, Money Matters
Respondent: Samuel Bingham, Scottish Government Legal Directorate
17 June 2025
Decision
The appeal is allowed. The Upper Tribunal for Scotland quashes the decision of the First-tier
Tribunal for Scotland ("FTS") dated 21 June 2024, and remits the appeal to a differently
constituted panel of the FTS.
Reasons
1.
The appellant applied for Adult Disability Payment ("ADP") under the Disability
Assistance for Working Age People (Scotland) Regulations 2022 ("the ADP Regulations").
The respondent determined that her claim attracted a score of 6 points in respect of the
daily living component, and 0 points in respect of the mobility component. The FTS
upheld that determination. The FTS refused permission to appeal against its decision.
Following a hearing on permission, and having listened to the recording of the hearing
before the FTS, I granted permission to appeal and directed that either party wished to
listen to the recording of the hearing before the FTS in order to advance their respective
cases in the substantive appeal they must make a request for access to it within seven
days of the decision on permission. I granted permission in relation to the treatment by
the FTS of the claims for daily living activities 1 and 3, and mobility activity 1. Both
parties submitted that the appeal could be decided without a hearing.
2.
The respondent sought access to the recording, and having listened to it conceded that
the appeal should be allowed. In particular it submitted that the FTS had not provided
adequate reasons for:
(a)
its conclusion for daily living activity 1, when the definition of "simple meal" in
paragraph 1 of Part 1 of schedule 1 of the ADP Regulations is taken into account;
(b)
its conclusion that the use of the appellant's phone does not constitute an "aid or
appliance" for the purposes of daily living activity 3b(i); and
(c)
its conclusion that descriptor (a) applied in respect of mobility activity 1.
3.
In relation to daily living activity 1, the FTS failed to engage with the appellant's oral
evidence, given in the context of her ability to chop vegetables, that she felt "really down
and low". The respondent submitted that this evidence was capable of being relevant
to her ability to prepare a simple meal, having regard to the definition of a simple meal as
being "a cooked one-course meal for one using fresh ingredients": ADP Regulations,
Schedule 1, paragraph 1. The respondent submitted that references by the FTS to the
ability of the appellant to use an oven appeared to be irrelevant, given that the definition
of "cook" was "heat food at or above waist height": ADP Regulations, Schedule 1,
paragraph 1; RH v SSWP (PIP) [2015] UKUT 281 (AAC).
4.
The respondent submitted that the FTS had failed to explain why it had concluded that
the use of a reminder on a telephone to take medication did not fall within the scope of an
"aid" under regulation 2 of the ADP Regulations. "Aid or appliance" is defined as:
"(a) ... any object or device which--
(i) the individual needs to be able to perform an activity, and
(ii) improves, provides or replaces the individual's impaired physical or mental function,
(b) includes an object or device which a person without a disability might choose to use
for the same function. [...]"
The conclusion reached by the FTS appeared to be contrary to the definition of "aid or
appliance" in the ADP regulations, and no reasons had been given for reaching it.
5.
So far as mobility activity 1 is concerned, the respondent submitted that whilst the FTS
had referred to the 50% rule (paragraph 25 of its decision), it was unclear from the
decision how often the appellant took the children to school and drove to and from work,
particularly because there appeared to be a degree of overlap between those activities.
The appellant referred to feeling overwhelmed when making unfamiliar journeys, but the
Tribunal had not addressed in its reasons whether this was sufficient to constitute
overwhelming psychological distress or not, although it did observe that not using public
transport due to anxiety was "insufficient to meet the threshold". It might be implicit that
the FTS had rejected the appellant's account, but it was entirely unclear why it had done
so.
6.
I am satisfied that each of these submissions made by the respondent in conceding the
appeal is properly made, and that each reflects a material error of law on the part of the
FTS. The respondent submitted that in the circumstances of this case, given the number
of errors identified, and in particular the approach to the evidence about mobility activity
1, it would be appropriate to quash the decision and remit to a differently constituted
tribunal. I am satisfied that that is the appropriate disposal in this case.
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.
Lady Carmichael
Member of the Upper Tribunal for Scotland

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