Summary
- This is an application for permission to appeal to the Upper Tribunal for Scotland (UTS) in a case about adult disability payment. The decision sets out three of the principles which guide the grant or refusal of permission in social security appeals, and applies those principles.
- Permission is refused in this case, because the essence of the application is a dispute over the facts and credibility findings of the First-tier Tribunal for Scotland (FTS). Those were matters primarily for the FTS. The grounds on which the application proceeds disclose no arguable errors on points of law.
General approach to appeals to the UTS – Three principles which guide the grant or refusal of permission in social security appeals in Scotland.
Principle 1 – the jurisdiction of the UTS is limited to errors on points of law.
Para 13 – ‘the UTS will scrutinise proposed grounds of appeal carefully to ensure they are truly concerned with errors of law. If they are in essence a disagreement with factual and credibility findings of the FTS, the UTS may find they do not properly come
within its appellate jurisdiction, because it is limited to points of law. While there is a relatively low threshold for arguability in decisions about permission, that threshold applies to errors on points of law, not disputes of fact’.
Para 14 – ‘in assessing whether grounds are arguable, the UTS will ordinarily take into account whether, if proposed grounds succeed, they would make any difference to the outcome. In the context of the UTS, this principle is often given effect by a requirement that there are arguable grounds on a material point of law (PY v Social Security Scotland 2024 UT 48 para 14). It is not accepted, as SSS suggests, that materiality has no part to play in the test for grant of permission. The requirement of materiality is a recognition that the function of courts and tribunals is to decide real disputes. They do not exist as debating chambers or to “beat the air in vain”. The UTS is publicly funded and is subject to these underlying principles. Grounds may be found not to be arguable when it is clear that, even if they succeed, it would make no difference to the outcome of the case’.
Principle 2 – to be proper and adequate, the reasons of the FTS for its decision do not have to involve consideration of every aspect of the evidence before it
Para 15 – ‘The classic test for adequacy of reasons in Scotland is found in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345. The tribunal must “give proper and adequate reasons for [its] decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader … in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it”. The decision of the FTS has to be read as a whole, in a straightforward manner, and recognising it is addressed to parties well aware of the issues involved (AK v Social Security Scotland 2024 UT 5 para 8). Reasons, to be adequate, do not have to involve consideration of every issue raised by the parties, or deal with every piece of material in evidence’.
Principle 3 – a person is not eligible for ADP merely because they have a medical condition or conditions; eligibility depends on satisfying statutory criteria.
Para 16 – ‘Points counting towards an award of ADP are scored only where the claimant’s ability to carry out daily living or mobility activities is limited (or severely limited) by the individual’s physical or mental condition or conditions (regulations 5 and 6 of the Disability Assistance for Working Age People (Scotland) Regulations 2022)’.
Para 18 – ‘As a matter of law, to score points there must be a causal link between a physical or mental condition or conditions and functional limitation. Limitations which arise due to factors such as choice, financial position, belief, habit, or living arrangement, rather than medical conditions, will not score points. Often the FTS will identify medical conditions from which it accepts the appellant suffers. However, the FTS is not required in all cases to diagnose or pinpoint all conditions which cause functional limitations, so long as it has considered what functional limitations have been caused by the individual’s physical or mental conditions it has accepted (see Social Security Scotland v AM 2024 UT 46 paras 18- 23)’.
The present application
Para 21 – ‘despite the grounds being framed as failures to consider matters, make proper findings in fact, give adequate reasons, and having taken into account incorrect information, they are in essence a disagreement about the assessment of the evidence by the FTS, and its adverse credibility finding in relation to the appellant. They fall foul of Principle 1 for appeals to the UTS set out above. It was for the FTS to weigh the evidence, not all of which supported the appellant, and decide what to accept and what to reject. It is clear from paragraphs [5] and [6] of the decision of the FTS that it took everything before it into account, which included submissions about the medical conditions from which the appellant suffered, and functional limitation. Findings of credibility and fact were matters primarily for the FTS, even if the appellant disagrees with the findings made. On scrutiny, the proposed grounds are disagreements of fact and do not raise arguable errors of law’.
