PIP points removed at tribunal. Legal?

Apologies if this has been covered before.

I had an appeal where client had 4 points DL, and we were trying to get 2 more descriptors considered to get SDL award.
The 4 points awarded : DWP were happy to give them, and we were happy they were given so in our opinion those points weren’t in dispute.
Tribunal judge said he wanted to explore those 2 but I said under section 12a that he need not look at an issue that hasn’t been raised by the appeal. We were happy, and DWP were happy with those points.
Decision notice : appeal refused : points also removed.

Im fully aware the tribunal can remove points as well as add them, but only if those points are in dispute ?(ie 2 points for cooking, I ask for 4 and they remove them. That’s fair enough)

Is there an error of law here? This could have ramifications if client on SDL trying for EDL and they remove points already scored that aren’t in dispute.

thanks in advance

This is a well worn topic.

There are two stages of analysis. The first question is whether it is raised by the appeal. The fact that both parties agree about the points usually but does not automatically mean it is not raised. An issue could be ‘raised by the appeal’ because there is evidence which calls it into question. For example if the claimant has been awarded 4 points for mobility of 50-200m and doesn’t dispute this but there is a doctors letter on the papers saying the claimant can walk 300m, then the Tribunal could take the view that mobility is ‘raised by the appeal’ because there is an obvious question about whether the points award was correct. The Tribunal must consider it.

If it is not ‘raised by the appeal’, that means the Tribunal need not consider it. It does not mean that it may not consider it. The Tribunal has a discretion to expand the scope of the appeal beyond matters raised by it. The exercise of this discretion needs to be reasoned - some judges will tell you that they always start from a blank sheet which is unlawful.

If the Tribunal does intend to consider taking away points, at least where it is material, the parties need to be notified of this and it may be a basis on which to seek an adjournment or withdraw their appeal..

There are a large number of cases on this but in my view the explanation in ET v SSWP (PIP) [2017] UKUT 478 (AAC) is very clear and cross references the important cases.