Upper Tribunal refuses permission to appeal against decision not to award adult disability payment

About this case:

• Citation:
  [2024] UT 48
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Lord Young

Appellant PY, who had appealed to the FTS against a decision by Social Security Scotland that he had insufficient points for an award, argued that the Tribunal had erred in its treatment of medical evidence that he had presented and had erred in its treatment of the Disability Assistance for Working Age People (Scotland) Regulation 2022.

The appeal was heard by Lord Young. The appellant was assisted by Toryglen Law & Money Advice Centre, while the respondent made no representations in respect of the application.

No reference made

The appellant made an application for adult disability payment in January 2023. On 27 June of the same year, the respondent issued a determination in which he was awarded 6 points in respect of daily activities which was insufficient for an ADP award. The 6 points awarded were in respect of prompting the appellant to prepare a simple meal, to dress or undress, and to engage in social activities. After the appellant asked for a re-determination, he was assessed as having no entitlement to any points for either daily or mobility activities.

An appeal was made to the First tier Tribunal on the basis that the appellant ought to have been awarded points under 4 descriptors in respect of daily activities, and a further descriptor in respect of mobility activities. As part of his submissions before the FTS, the appellant relied upon a report from Dr M, a clinical psychiatrist. In refusing the appeal, the FTS found the appellant was only entitled to 4 points for daily activities in respect of prompting to make a simple meal and to engage in social activities.

In his grounds of appeal, the appellant submitted that the FTS had erred in its treatment of Dr M’s report, highlighting that no reference was made in the decision notice to the clinical findings of the report. Further, it was unclear to the appellant why the FTS would have rejected Dr M’s report, its reasoning simply stating that the report was based on a one-day meeting and that Dr DM had no direct knowledge of the appellant’s undertaking of daily activities in the real world.

It was further submitted that the FTS erred in determining that the appellant being able to shower twice a week was as often as that activity reasonably required to be completed, and that the Tribunal erred in failing to deal with the position of the respondent in relation to descriptor 9(c), which the respondent believed to be satisfied but the Tribunal did not.

Entitled to proceed

In his decision, Lord Young said of the reasons for rejecting Dr M’s report: “The contention in ground of appeal 1 that the FTS must have failed to have regard to the clinical findings because they are not mentioned within the decision itself is not a valid criticism. The FTS’s decision stated, in terms, that regard was had to Dr M’s report albeit the weight given to the report was not significant. There is no reason to conclude that the clinical findings were ignored by the FTS.”

He explained further: “There is no requirement for the FTS to discuss the clinical findings of a medical report within the decision itself where that Tribunal has concluded that the medical expert’s views are of limited weight. On the face of the decision itself, there is no arguable basis for the contention that the FTS failed to have regard to material evidence before it. The authorities set out in the first ground of appeal do not support the proposition advanced.”

Turning to the adequacy of the Tribunal’s reasoning, Lord Young noted: “Given that the factual issues for determination related to the appellant’s ability to carry out various daily activities, it is difficult to fault the Tribunal’s reasoning. Although this ground of appeal uses the language of ‘inadequacy of reasons’, the reality is that it amounts to a contention that Dr M’s evidence ought to have been preferred. The assessment and weighing of witness evidence is part of the Tribunal’s fact finding role and is not open to challenge on appeal.”

On the third ground, he added: “There is no requirement that the individual can carry out a specific activity such as showering on 50% of days. In the present case, the appellant has not put in issue any concern that his ability to wash and bathe is inadequate for his needs. While Dr M suggests that a deficit in this activity is ‘probable’, the FTS were perfectly entitled to proceed on the basis of the appellant’s own evidence.”

Lord Young concluded on the final ground: “Had this ground of appeal been sufficient on its own, or in combination with other stateable grounds of appeal, to lead to an award of ADP, I would have granted permission that it raised a point of law which was arguable. However, ground of appeal 4 can, at best, only result in a further 2 points which would not result in an award of ADP for the appellant. Accordingly, it cannot be said that the arguable point of law is a material one for which permission should be granted.”

Permission to appeal was therefore refused.