Man with enlarged prostate refused additional disability payment by First-tier Tribunal denied permission to appeal

About this case:

• Citation:
  2024UT14
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Lord Young

The appellant, KB, had been assessed by Social Security Scotland as entitled to six points under the daily living component and four points under the mobility component. He argued that the FTS had failed to take into account relevant facts he had presented in evidence and performed its own investigations based on irrelevant considerations.

The application was considered by Lord Young of the Upper Tribunal, with written submissions made by the appellant.

Irrelevant questions

The appellant made an application for Adult Disability Payment in September 2022. Social Security Scotland found that that he was not entitled to an award of ADP on 17 January 2023. On 4 April 2023, following an application for a re‐determination, SSS found the appellant entitled to his current points.

An appeal against this decision was made to the First-tier Tribunal for Scotland, which concluded that the evidence did not justify any points being awarded for the daily living component and no additional points for the mobility component. The appellant contended that the FTS ought to have drawn different conclusions from the medical evidence before it to the ones they reached.

In particular, the appellant contended that the FTS had failed to take into account the medical evidence in relation to his enlarged prostate as it was not listed with his other medical conditions.

Other findings in fact were said to be inconsistent with evidence from the appellant’s GP, while its questioning of the aids he had purchased privately implied that such aids did not count in determining the extent of his disability.

After permission to appeal was refused by the FTS, the appellant added in a further letter seeking permission to appeal to the UTS that the FTS appear to have investigated the circumstances of the appellant’s housing in advance of the hearing and asked irrelevant questions based on that research. It also erred in telling him he could submit a blank application form if he was embarrassed to acknowledge the extent of his disabilities, as the online form did not allow a field to be left blank.

Reasonable opportunity to respond

In his decision, Lord Young began: “The grounds of appeal do not raise any arguable point of law. In relation to each of these grounds of appeal, the appellant challenges the findings in fact found by the FTS. The grounds of appeal contend that the FTS ought to have made different factual findings by reference to inferences to be drawn from aspects of the evidence.”

He continued: “The conclusions to be drawn from the evidence, including any reasonable inferences from such evidence as is accepted by the FTS, falls within the fact finding jurisdiction of the FTS alone. The FTS explains in its decision that the primary findings in fact in relation to the appellant’s capacity are based on the appellant’s original application form. The ground of appeal which alleges that the FTS failed to take account of relevant medical evidence is not an arguable point of law.”

On the further grounds presented to the UTS, Lord Young said: “Even if it is assumed that some prior investigations were carried out by the FTS in advance of the hearing, there is no prima facie unfairness in such a course of action since the FTS are engaged in the task of understanding the effect of the appellant’s disabilities on his day to day activities. It has not been submitted that the FTS took its decision on the basis of information which the appellant was not given a reasonable opportunity to respond to.”

He concluded: “It is for the fact finding Tribunal to decide what evidence it accepts and what evidence it rejects based upon its view of the reliability and credibility of the witnesses before it. Any inability to submit a completely blank application form does not alter the fact that the appellant’s original form contained evidential material which the FTS found more credible and reliable than his subsequent testimony.”

Permission to appeal was therefore refused.