Key Points for Welfare Rights Officers
Overview
This Upper Tribunal decision concerns an Adult Disability Payment (ADP) appeal where the First-tier Tribunal (FTS) awarded Mobility Activity 2 descriptor 2b (50–200 metres) but failed to adequately explain why a higher descriptor was not appropriate.
The Upper Tribunal granted permission to appeal, allowed the appeal, quashed the FTS decision, and remitted the case to a differently constituted tribunal for a fresh hearing.
Key Legal Principle
The decision reinforces that:
Simply stating that regulation 7 (the reliability criteria) has been considered is not enough. The tribunal must explain how the reliability criteria were applied to the evidence and how they led to the descriptor chosen.
The Upper Tribunal emphasised that a recital of regulation 7 is not the same as applying it.
Error of Law
The Upper Tribunal found that the FTS:
- Identified some evidence it accepted and some it rejected.
- Found the appellant generally credible but rejected evidence about the severity of pain when walking.
- Concluded that descriptor 2b applied.
However, the Tribunal failed to explain:
- How it applied the reliability criteria.
- Why the accepted evidence supported descriptor 2b rather than a higher descriptor.
- Why the evidence did not satisfy a higher mobility descriptor.
As a result, the informed reader could not understand the route by which the FTS reached its decision.
Regulation 7 Reminder
Tribunals must consider whether an activity can be carried out:
- Safely;
- To an acceptable standard;
- Repeatedly; and
- Within a reasonable time.
The Upper Tribunal stressed that, in mobility cases, findings on walking distance alone are insufficient. The tribunal must explain how those reliability factors affect the claimant’s functional ability.
Practice Points for Welfare Rights Officers
1. Focus on Reliability, Not Just Distance
When preparing ADP appeals, obtain evidence about:
- Pain when walking;
- Fatigue;
- Recovery time;
- Variability;
- Whether walking can be repeated;
- Deterioration after activity.
2. Challenge “Bare” Findings
If a tribunal says it has considered regulation 7 but does not explain:
- How the criteria were applied; or
- Why a particular descriptor was chosen,
there may be an arguable error of law.
3. Require a Logical Bridge
The decision must show:
Evidence → Findings → Application of regulation 7 → Descriptor awarded
If that chain is missing, the reasons may be legally inadequate.
4. Watch for Unsupported Use of Tribunal Expertise
The FTS relied partly on its “medical knowledge inherent within the tribunal” when rejecting the claimant’s evidence. While the Upper Tribunal did not determine that this was itself an error, advisers should scrutinise decisions where tribunals appear to rely on assumed expertise rather than clearly explained evidence.
Useful Citation for Future Appeals
The most significant point from the decision is:
A tribunal does not demonstrate compliance with regulation 7 merely by saying it has considered it. The decision must disclose how the reliability criteria informed the assessment of the evidence and the selection of the descriptor.
Relevance to ADP Cases
This decision is particularly useful where:
- A tribunal accepts mobility problems but awards a lower descriptor than expected.
- The tribunal gives only brief reasons.
- Pain, fatigue, repeatability or recovery time are central issues.
- The decision fails to explain why higher mobility descriptors were rejected.
It sits alongside other recent Upper Tribunal decisions emphasising the need for proper application and explanation of the regulation 7 reliability criteria, especially in Mobility Activity 2 (Moving Around) cases.