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Selected upper tribunal decisions from April 2017 to March 2018

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Carer's Allowance

CG/838/2015: Whether a student may be entitled to carer's allowance during a deferral of studies

Upper Tribunal Judge: Mitchell

The question in this appeal was whether a student who deferred her full-time course for a year was undergoing a temporary interruption in attendance. If so, she would remain disentitled to carer’s allowance.

Regulation 5 of the Social Security (Carer’s Allowance) Regulations 1976 specifies circumstances in which a person shall be treated as receiving full-time education. The regulation also deems a period of full-time education to continue throughout any “temporary interruption” in a student’s attendance at a course of full-time education.

Mrs M had enrolled on a B.Sc. degree course in occupational therapy at Teesside University. On 25th June 2013, an administrator at the University wrote to Mrs M stating “I write to confirm you have been interrupted from your studies as of 21 June 2013” and went on:

“You will need to contact me at least 8 weeks prior to your proposed resumption date stating that you still wish to resume your studies. Once I have received this confirmation I will notify your Pathway Leader who will arrange a resumption meeting for you. This will enable you to discuss your return and provide you with information regarding for example, the timetable and placement information.”

6. The University’s letter did not state that a year’s deferral had been agreed but Mrs M’s evidence that it had was not disputed.

7. On 14th September 2013, Mrs M claimed carer’s allowance in respect of her disabled son. In her claim form, she wrote she wished to claim from 30th July 2013. Mrs M gave the following information about her degree course:

(a) it was full-time;

(b) she would spend 30 hours per week on work included in the curriculum of the course;

(c) she started the course on 29 September 2011 and expected to complete it on 30 May 2015;

(d) she was on a “one year deferment” to care for her disabled son and expected to return to her studies in April 2014.

On 24 September 2013, the Secretary of State refused Mrs M’s claim because she was “in full-time education”.

Mrs M unsuccessfully appealed to the First-tier Tribunal (FtT).

In determining her subsequent appeal to him, Upper Tribunal Mitchell, sets out the following as the relevant legislation.

Section 70(3) of the Social Security Contributions and Benefits Act 1992 (“1992 Act”) provides that “a person shall not be entitled to [a carer’s allowance] if he is…receiving full-time education”. Section 70(8) confers power on the Secretary of State by regulations to “prescribe the circumstances in which a person is or is not to be treated for the purposes of this section as…receiving full-time education”. These powers are exercised in the Social Security (Carer’s Allowance) Regulations 1976.

Regulation 5(1) of the 1976 Regulations provides that “a person shall be treated as receiving full-time education for any period during which he attends a course of education at a university…for twenty–one hours or more a week”.

Regulation 5(3) is the focal point of this appeal and provides:

“In determining the duration of a period of full-time education under paragraph (1) of this regulation, a person who has started on a course of education shall be treated as attending it for the usual number of hours per week throughout any vacation or any temporary interruption of his attendance until the end of the course or such earlier date as he abandons it or is dismissed from it.”

In upholding the claimant’s appeal, Judge Mitchell decides that the FtT erred in law in its interpretation of regulation 5(3) of the 1976 Regulations.

In doing so he says that:

“Regulation 5(3) is not a straightforward provision to interpret. But it does have a context and a purpose. Its aim is to prevent certain student carers from obtaining carer’s allowance during vacations and temporary interruptions of course attendance.

… In the light of the purpose of regulation 5, in my view the legislator, in selecting the term “temporary interruption”, intended to draw a distinction between different types of (non-permanent) interruptions.

I accept that this does not flow neatly from the statutory wording used but nor is regulation 5 particularly neatly drafted … it is difficult, for example, to see why the legislator thought it was necessary to specify that abandonments or dismissals only counted, in determining the period of deemed attendance, if they occurred before the course had ended.

Judge Mitchell then concludes that:

“I have decided that the legislator used the term “temporary interruption” to draw a distinction between cases where (a) an interruption in attendance, by its nature, means a person can no longer fairly be considered in fact to be actively pursuing a full-time course of study and (b) other interruptions the nature of which means the person can fairly be said still to pursue a full-time course of study. These other interruptions are temporary interruptions for the purposes of regulation 5.

This interpretation avoids construing regulation 5(3) so that the adjective “temporary” serves no purpose. It also accords with – or at least does not undermine – the legislative purpose in disentitling full-time students from carer’s allowance.

It does not promote potentially unstable caring arrangements where the carer tries to juggle full-time study with full-time care. And I suspect this interpretation may have some symmetry with the student funding rules. While I have not had any submissions on this, in Mrs M’s case at any rate I note that her deferral meant she could no longer access the special funding arrangements for her degree course. As mentioned above, the parties agreed that one purpose of the legislation was to prevent student carers from accessing dual funding regimes.”

Disability living allowance

CDLA/2952/2015: Amended DLA past presence test for DLA is not discriminatory

Upper Tribunal Judge: Jacobs

From 8 April 2013, to be eligible for DLA (and for PIP or AA or Carers Allowance) you must be habitually resident in the Common Travel Area, be present in GB, and have been present in GB for not less than 104 weeks in the last 156 weeks (the ‘past presence test’).

In this decision, Judge Jacobs holds that the amended past presence test for disability living allowance is not discriminatory, in breach of the public-sector equality duty or the duty to consider the best interests of children as a primary consideration.

Judge Jacobs holds that:

  • children from abroad who claim disability living allowance and are otherwise entitled will be deprived for benefit for two years. In other words, there is a delay in payment, not an outright refusal of entitlement;
  • disability living allowance is not the only source of funding available for children with disabilities, so the child will not be deprived of all financial support;
  • whatever savings this may produce, will increase the pot available for other purposes, which may be to the benefit of children generally or children with disabilities; and
  • children are almost always members of families. The new past presence rules are not entirely a bad thing, as they allow more flexibility of movement for the family than the old test. 

In addition, he finds no evidence any specific reference to the best interests of the child being a primary consideration:

“I would be astonished if any policy maker considering any issue in relation to children nowadays would take any other approach – the same may be said for the public-sector equality duty – but evidence there must be.

I would have expected the impact assessment to show that this was done. But the issue cannot be judged by mere empty formalism. What matters is what was done. For the reasons, I have given on the public-sector duty, I consider that the evidence shows that the Secretary of State did act in accordance with Article 3 when formulating the policy that is enacted in the new past present test.”

CDLA/3501/2015: Need to produce to tribunal documents relating to previous DLA award

Upper Tribunal Judge: Hemingway 

The principle issue raised by this appeal concerns the approach to be taken by the First-tier Tribunal in circumstances where it is dealing with an appeal against a decision concerning the renewal of an award of DLA.

In particular, where the Secretary of State has failed to provide it with all relevant documents because he has not produced the documentation relied upon when the previous awarding decision had been made (rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008). 

The appeal concerned a renewal claim made by a 15-year-old child Her mother was her appointee. The claimant had Type 1 diabetes which required supervision relating to the injection of insulin and the monitoring of blood sugar levels. 

She had a DLA award at the lower rate of the mobility component and the middle rate of the care component running until the 24 January 2015. 

However, on 27 January 2015 a decision was made not to award her DLA.

With a tribunal having dismissed her appeal the claimant appealed to the Upper Tribunal.

In considering the appeal, Upper Tribunal Judge Hemingway says that the tribunal had quite limited medical evidence before it. 

Also that unusually, it was not provided with documentation relating to the previous awarding decision.  As to that, in a written response to the appeal, the Secretary of State, having drawn the tribunal’s attention to the existence and terms of the previous award simply said this:

Rule 24 of the Rules of Procedure requires a decision maker, upon receipt of a copy of a notice of appeal sent by the tribunal, to deliver a response to the appeal to the tribunal.  According to rule 24(4) the decision maker must provide with the response –

 “ (b) copies of all documents relevant to the case in the decision maker’s possession, unless a practice direction or direction states otherwise;”

In evidenced to the Upper Tribunal, the Secretary of State said that it was normal procedure to supply documents relating to a previous DLA award was made and that in this appeal he was obliged to provide them.

However, without formally deciding the point because he does not have to, Judge Hemingway says that:

“… it does seem to me that it is very likely indeed that such documentation will have at least a degree of relevance and, therefore, ought properly to be disclosed by the Secretary of State for the purposes of an appeal regarding a renewal decision. 

It is not, in my judgment, acceptable where such documentation is of relevance or potential relevance for the Secretary of State to simply say, as here, that the documentation is available and can be produced if the tribunal requires it.  That is because to take such an approach would be to ignore the mandatory nature of the duty.  It is mandatory because of the inclusion of the word “must” within rule 24(4). 

Further, such an approach is unhelpful because a tribunal which has convened to decide such an appeal may well feel a natural impetus to get on with the job and a claimant might well have an understandable desire to get matters over with. That combination might lead, in some cases, to tribunals understandably proceeding without evidence that might have made a material difference to the outcome rather than adjourning to obtain it.”   

He then goes on to consider the approach of a tribunal in circumstances where the rule 24 duty has not been complied with.

Judge Hemingway does not agree that a tribunal will always be under a duty to adjourn in order to obtain the missing evidence:

“To lay down such a requirement would be to adopt an unduly inflexible approach and might lead to unnecessary adjournments. It may be, for example, that a tribunal understands the basis for a previous award, perhaps because that is explained in the appeal response or in some other document before it and already has some medical evidence pertaining to matters as they stood when the previous awarding decision was made. 

It may be, even absent that, the tribunal could safely proceed if the evidence in totality was so full and cogent that it felt, notwithstanding what had gone before and any evidence as to that, that the outcome on the appeal before it is inevitable. 

In particular, if the current evidence was such as to persuade it that an award of the maximum amount of disability living allowance available was appropriate there would seem to be no value at all in calling for the earlier evidence. 

Putting all of that together I conclude that it cannot be said, as a matter of law, that a tribunal will always be obliged to adjourn in order to obtain documentation relating to the earlier awarding decision when it is considering, by way of appeal, a renewal decision.”  

However, he then recommends that in general terms, tribunals should be very cautious in deciding to “bat on” in circumstances where such material has not been produced but should have been:

“First of all, it will often be of some significance to know what had been said by a claimant as to her disabilities at the time leading up to a previous award. That will be apparent from completed application forms. There may well be medical evidence touching upon the same medical conditions which are relied upon in the context of the renewal claim. Further, such evidence may have enhanced relevance in circumstances (and it seems to me this is often the case) where a claimant asserts on renewal that he or she has the same or a greater level of disability as when a previous award had been made but that the Secretary of State has either not renewed or has renewed at a lower level.

Medical evidence might also be thought to be of particular assistance where there is a degenerative condition such that overall improvement might be unlikely.  Further still … there is the requirement stemming from what was stated in R(M) 1/96 for tribunals to explain, in particular for the benefit of the losing party unless it is obvious, why a different outcome is being reached to that which had been reached previously. R(M) 1/96 is something of an “old standard” if I can put it like that but the duty imposed therein, whilst not a demanding one is an important one as recently recognised in SF v SSWP (PIP) [2016] UKUT 0481 (AAC).

In my judgment it might, in many cases, be quite difficult for a tribunal to adequately fulfil this duty without evidence concerning not only the level of the previous award but the basis upon which that level was considered to be appropriate.”

Judge Hemingway concludes by finding that in the present case the tribunal did err in failing to, as a minimum, acknowledge the existence and availability of the evidence and to consider whether to call for it.  On this basis, he decides that its decision falls to be set aside.

CDLA/922/2017: Viewing video evidence in absence of the claimant / consideration of DWP dropping criminal charges

Upper Tribunal Judge: Wikeley

This appeal concerned a complex high value benefit overpayment case. The claimant disputed she had been overpaid DLA of over £53,000 since the beginning of her original claim.

The issues raised by her appeal included the following:

  • whether there was a breach of natural Justice in viewing video/DVD in absence of claimant and not putting questions to her about it after viewing; and
  • whether the tribunal should have inquired as to new evidence which led to criminal charges being dropped.

With respect to the video evidence issue, Judge Wikeley says:

“The Appellant is adamant that she was not in the room when the Tribunal viewed the evidence in question and not given the option to be in the room. The video/ DVD evidence was plainly disputed as the Appellant had made written submissions on that evidence (not referred to by the Tribunal in its statement of reasons). There is no suggestion in either the record of proceedings or the statement of reasons that she was present when the panel viewed the evidence and was asked questions about it – indeed, the cursory note of the proceedings on the second day strongly suggests that she was not. 

I am left in little doubt that (i) the Tribunal viewed the evidence by itself on the second day of the hearing; (ii) the Tribunal did not put any questions about what it had seen in the video or DVD evidence to the Appellant. The fact that the Appellant had previously put in written submissions about some of that evidence was no substitute for such an opportunity.

Mr O’Kane, for the Secretary of State, simply submits that “the failure of the First-tier Tribunal to allow the claimant the opportunity to comment on issues that arose from their viewing of the DVD constitutes a breach of natural justice.”

I agree. I am speechless.”

With respect to criminal charges being dropped against the appellant,

Judge Wikeley says that, based on the record of proceedings, it appeared there was a brief discussion at the Tribunal about the abandoned criminal prosecution at the end of the afternoon session on the first day. In its statement of reasons the Tribunal noted that there had been a criminal investigation and that it had considered reports taken from that process. Beyond that, there was no reference whatsoever to the fate of the criminal proceedings nor in particular to the “new evidence”. 

The Secretary of State submitted to Judge Wikeley that:

“Having due regard to the provisions of rule 24(4)(b) of the First-tier Tribunal  Rules 2008 it is submitted the Secretary of State is under a duty to produce  copies of all documentation relevant to the case that is in his possession.

Clearly a decision to discontinue criminal proceedings could be relevant to the outcome of the hearing, and in failing to at least consider there was a possibility  the material might have a bearing on the outcome of the civil proceedings, the  First-tier Tribunal could be seen to have erred in law.”

Judge Wikeley agrees:

Rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) provides that “The decision maker must provide with the response…copies of all documents relevant to the case in the decision maker’s possession, unless a practice direction or direction states otherwise”. As Upper Tribunal Judge Wright has explained “The key word here is ‘relevant’. The use of the word ‘must’ also makes clear that the Secretary of State’s decision maker is under a legal obligation to provide the Fist-tier Tribunal with copies of all documents relevant to the case that he has in his possession” (ST v Secretary of State for Work and Pensions (ESA) [2012] UKUT 469 (AAC) at paragraph 25).

We have no idea what the “new material” or “new evidence” was that led to charges being dropped. It is possible it has nothing to do with the issue of civil liability under social security law. But it may be documentation which assists the Appellant’s case. It may not be a document at all, but rather the fact we now know that one of the officers on the fraud investigation team had subsequently been dismissed (and see further below). The Appellant states (and again, I have no way of knowing whether this is accurate) that “I am aware the same Fraud Officer illegally obtained my mother’s medical records and withheld evidence in my mother’s favour when investigating her case (which is now closed).” 

He continues that while it is true that the civil and criminal proceedings are separate and operate under different rules, the tribunal displayed “a worrying lack of curiosity” in its approach to this issue:

“Warning bells should have been ringing when it heard the criminal case had been dropped because of “new evidence”. At the very least the Tribunal should have asked what that new evidence was and whether it was relevant to the Secretary of State’s duty to disclose under rule 24(4)(b). Its failure to act in a suitably inquisitorial manner was a further error of law.”

Employment and support allowance

CE/2388/2015: DWP’s destruction of evidence supporting original decision may lead to a failure to establish grounds to supersede or revise

Upper Tribunal Judge: Turnbull

The claimant had previously successfully appealed to a tribunal against a decision that he was not a single claimant but was living together as a couple with his wife. 

Despite this, a decision was later made ending his ESA because his circumstances had changed and that he was living together with her as a couple. 

With a First-Tier Tribunal (FTT) upholding that decision the claimant appealed to the Upper Tribunal.

Relevant documents relating to the earlier decision that the claimant was a single person had been destroyed by the DWP.

Judge Turnbull allows the appeal and sets aside the FTT’s decision as wrong in law.

He then remakes its decision as follows:

“The claimant’s appeal against the decision of the Secretary of State made on 7 October 2014 is allowed. Although the Claimant and his wife were members of the same household the Secretary of State has not established a ground for revising or superseding the decision(s) awarding income-related employment and support allowance.  “

While not forming part of his decision, he says that the consequence seems to be that the Secretary of State will not be able to supersede the award of income-related ESA until there is some relevant change of circumstances. 

Judge Turnbull explains the reasons for his decision as follows:

“In my judgment this is a case where the fact that the burden of establishing a ground for supersession is on the Secretary of State is important

Neither the Secretary of State nor the Claimant are able to produce the documents which would show precisely what knowledge the decision maker had when the awarding decision was made.

The Claimant asserts that he made full disclosure at the time of his claim, and the Secretary of State is unable to rebut that contention. The fact that an award of benefit can generally only be terminated if there is a ground for revision or supersession, and that it is therefore not sufficient simply that a later decision maker finds the conditions of entitlement not to be satisfied, is of course an important reason for retaining the evidence on the basis of which an award is made.

The mere fact that the department appears to have destroyed the relevant documents and records may not of itself require an inference to be drawn against the Secretary of State, but it does in my judgment add weight to the reasons for concluding that the Secretary of State should be found, on the facts of this case, not to have discharged the burden of establishing a ground for supersession.” 

CE/3205/2015: A powered wheelchair cannot be taken into account in assessing ability to mobilise

Upper Tribunal Judge: Mitchell 

This appeal considers whether the assessment of a person’s ability to mobilise for ESA purposes may take into account the assistance supplied by a powered wheelchair.

Schedule 2 of the ESA Regulations 2008 in relation to the “mobilising” activity provides:

“Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably be, worn or used.”

The First Tier Tribunal held that a powered wheelchair is an “other aid “and that the terms stick and manual wheelchair were for illustrative purposes only. It reasoned:

“This fits in with the way the legal test is written. If the terms were not illustrative it would be necessary to look at each and every aid/appliance to decide whether it is excluded from being part of the term “other aid” because of the similarity they may have to a stick or manual wheelchair. It would become an impossible test to apply.”

However, Upper Tribunal Judge Mitchell concludes that in doing so the tribunal erred:

“The legislator’s decision to refer expressly to a “manual wheelchair”, but no other type of wheelchair, must have been deliberate. The intention was to limit the field to that one type of wheelchair.

Further, a manual wheelchair and a walking stick share a common characteristic. They both require an individual to supply all of the energy necessary to move without relying on any external source of power. That shared characteristic is sufficient to establish a genus which then influences the range of other aids that may permissibly be taken into account.

He continues:

“If the legislator had intended for “manual walking chair” and “walking stick” to operate merely as examples, it could have said so expressly. In fact, other parts of the WCA enact provisions that are illustrative in nature. One of the descriptors for the ‘picking up and moving’ activity refers to a person who “cannot transfer a light but bulky object such as an empty cardboard box”.   The legislator could also have used one of the established formulations for indicating that the range of “other aids” was not limited, for example “whether or not of the same kind as those mentioned”.

He adds that:

“I do not agree that the above conclusion makes the WCA mobility activity “an impossible test to apply”. If the mobility provisions are properly construed, the range of “other aids” is limited to those whose use still requires the individual to move under his or her own steam (and which are normally used or could reasonably be used). I think it is quite straightforward to decide which aids qualify under that test and which do not.

If the legislative intention was as the First-tier Tribunal thought, the legislator would not have provided for aids and appliances within the mobilising activity itself. It could have said nothing about this within the prescribed activity and instead relied on regulation 19(4)’s general incorporation of aids and appliances in the WCA descriptors.”

CE/3475/2015: Mental disablement can include learning difficulties and cognitive deficiency

Upper Tribunal Judge: Gray

The appellant had very long standing epilepsy. He had surgery in 2010 which reduced the level of epileptic seizures although a resultant brain haemorrhage may have caused different problems. 

The primary issue considered in this appeal is whether the term ‘mental disablement’ in the amended regulation 19(5) of the ESA Regulations 2008 covers a condition which may be physical in origin (for example epilepsy or a brain haemorrhage) but which manifests itself in problems which are mental in nature.   

The directly relevant part of the amended regulation 19(5) reads:

“(5) In assessing the extent of a claimant’s incapability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises-

(a) in respect of any descriptor listed in Part 1 of Schedule 2, from a specific bodily disease or disablement;

(b) in respect of any descriptor listed in Part 2 of Schedule 2, from a specific mental illness or disablement;” 

In his submission to the Upper Tribunal, the Secretary of State accepted that the term "mental illness or disablement" covers acquired brain injury, and it is permissible, given of course a factual finding of such disablement, for the FTT to consider them.  

Upper Tribunal Judge Gray finds that: 

“The term ‘mental illness or disablement’ in the amended regulation 19 … encompasses not merely mental ill-health in the form of conditions such as depression or schizophrenia but mental disablement of all kinds, for example learning difficulties and cognitive deficiency whether that be by reason of age or acquired brain injury.

The purport of the assessment of a person's physical or mental condition, and specifically the terms of regulation 19 (1) make it clear that the matter being assessed is whether or not it is reasonable to require a claimant to work.”

She adds:

“For completeness I set out the rest of regulation 19 (5) which, given the prescriptive nature of the application of part 1 only to incapability arising from direct treatment in relation to physical disability or disablement, and similarly the application of the part 2 activities only to incapability arising out of treatment in respect of mental illness or disablement, could not have assisted the applicant in this case in which it is said that he developed cognitive difficulties following an operation in respect of a physical illness, namely epilepsy. 

That further fortifies me in saying that the phrase "mental illness or disablement" in regulation 19 (5) (b) was intended to include those with congenital or acquired brain injury or other learning difficulties; were it not the residual cognitive problems of a person who suffered brain injury as a result of a medical accident could not be taken into account.”

CE/1885/2016: Availability of and evidence of 3rd Party support in getting to and participating in work-rated activity

Upper Tribunal Judge Hemingway

The claimant had been diagnosed as having an arm problem, anxiety and depression, hypertension, diabetes.

While the tribunal found that she scored sufficient points to have a limited capability for work it decided no Schedule 3 descriptors were met.

It also held that she could not show limited capability for work-related activity was under regulation 35 (serious risk to physical or mental health if found not to have limited capability for work-related activity).

It reasoned that with help and encouragement she would, be able to engage in work-related activity short of an actual work placement:

“Accompanied by her husband she could get from home to the Job Centre and back and would be able to participate with others in, for example, group discussions once with the support and encouragement of her husband, she had become familiar with the people she needed to meet for this purpose.”

The claimant appealed to the Upper Tribunal on the grounds that the First Tier Tribunal had erred in assuming, without enquiring into the matter, that her husband would be willing and able to accompany her to work-related activity and to spend some time with her when she was participating in such activity.

While upholding the claimant’s appeal, Upper Tribunal Judge Hemingway says that:

“For myself, I cannot see any reason why a third party’s assistance ought not to be taken into account, in principle, when assessing whether or not the risk envisaged by the regulation would arise. 

There is nothing within the legislation which suggests that third party assistance cannot be relevant. The language of the test focuses upon risk. It would be artificial to approach the question of risk in a vacuum and without having regard to the prevailing circumstances. Such circumstances might include the availability of assistance.

So, to the extent that it might be thought there is disagreement between what is said in MT and what is said in PD, I prefer the approach taken in the latter decision.

I am satisfied therefore, that so long as it can be demonstrated by evidence that third party support of some sort will be available, that that can be taken into account when assessing whether the relevant degree of risk arises.”

However, Judge Hemingway finds that in this case the tribunal did not enquire into the question of availability of the third party support in the form of the claimant’s husband:

“Rather, it simply appears to have assumed that that support would be available.  One can understand why it might have so assumed because there was evidence before it that the claimant received a good deal of assistance from her husband. 

… However, I have reached a view that it was incumbent upon the tribunal to make proper enquiry as to the matter using its inquisitorial function.  It had an opportunity to do so because it did have the claimant and her husband before it at the oral hearing. Whilst it had evidence that he would accompany her to various places, which might well suggest that he might be able to accompany her to work-related activity venues, it did not necessarily follow that he would always be available to do that or that he would be willing to do it at all.  It did not follow that he would be available to or as a separate matter willing to assist with initial participation in work-related activity such as, to adopt the example given by the tribunal, group discussion. 

Of course, even if the husband had told it that he would not assist the tribunal was not required to believe him. But it ought properly to have enquired into the issue and made findings about it before relying upon the anticipated assistance for its conclusion as to risk.  It did, therefore, err in law and in a way which was material in that it might have had an impact upon the outcome.”

As a result, Judge Hemingway sets aside the tribunal’s decision and remits it for rehearing.

CE/2407/2016: Increase in benefit dates from date change of circumstances reported not response to subsequent DWP enquiry

Upper Tribunal Judge: Ward 

The appellant was in receipt of income based ESA as a single person. Her husband was released from prison on 26/06/15 and came to live with her. She reported this change of circumstance to the relevant DWP office by telephone on 01/07/15.

The DWP then issued her issued with an ESA3 form to complete. The form asked for information about her and her husband.  The form told her to return the form within one moth otherwise she might lose money. 

But she did not return the form until October 2015.  While existing award was superseded the existing award, increasing the amount of ESA payable, this was only from only from 09/10/15. 

A Tribunal disallowed the appeal, because it found that conditions for backdating an award did not apply in the case. In her statement of reasons, the Judge explained that she had not allowed the appeal because the form had not been returned within the one month time limit specified on it.

The appellant then appealed to the Upper Tribunal on the grounds that regulation 7(2)(b) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 states that a change of circumstances notified more than one month after it took place and which is advantageous to the claimant should take effect from the benefit week in which notification was made.

Reg 7(2) of the 1999 Regulations provides:

“(2) Where a decision under section 10 is made on the ground that there has been… a relevant change of circumstances since the decision had effect…, the decision under section 10 shall take effect –

(a) from the date the change occurred or, where the change does not have effect until a later date, from the first date on which such effect occurs where–

(i) the decision is advantageous to the claimant; and

(ii) the change was notified to an appropriate office within one month of the change occurring or within such longer period as may be allowed under regulation 8 for the claimant's failure to notify the change on an earlier date;

(b) where the decision is advantageous to the claimant and the change was notified to an appropriate office more than one month after the change occurred or after the expiry of any such longer period as may have been allowed under regulation 8 -

(i) in the case of a claimant who is in receipt of income support, jobseeker's allowance, state pension credit or an employment and support allowance and benefit is paid in arrears, from the beginning of the benefit week in which the notification was made; …”

In upholding the claimants appeal, Judge Ward holds that the tribunal were wrong in law by treating the words “was notified to an appropriate office” in regulation 7(2)(a) as encompassing not only notification of the change but also responding to further enquiries made on a separate form and sent on a later date.

He therefore sets aside the tribunal’s decision and finds that the appellant is entitled to an increased amount of ESA from 1/7/2015.

CE/175/2017: Mobility: evaluating evidence of time taken to walk

Upper Tribunal Judge Hemingway

In this decision, Judge Hemingway holds that it is perfectly permissible for a tribunal, in making findings as to the distance a claimant can walk, to attach weight to that claimant’s own estimate as to how long in terms of time (usually expressed in minutes) he/she can walk for.

It is also permissible for a tribunal to extrapolate as to what such an estimate, if reliable, might translate into in terms of distance.

However, there is no rule to say that where a time estimate is offered it must be accepted unless there is something specific to contradict it or to suggest it is unreliable.

In addition, Judge Hemingway says that it may be appropriate for a tribunal to consider whether such an estimate is or is not likely to be reliable and to probe this with a claimant. There may be reason to think that time estimates as to journeys which are undertaken regularly might be reliable.

CE/281/2017 : Activity 9: Engaging with other people and severe visual impairment

Upper Tribunal Judge: Williams

This appeal focuses on two of the activity 9 descriptors, set out in Part 2 of Schedule 1 of the Social Security (Personal Independence Payment) Regulations 2013 (‘the Regulations’), namely: 9(b) (prompting) and 9(c) (social support).

In particular, how they apply to persons with restricted vision who are unable to engage socially because of difficulty interacting with others in a contextually socially appropriate manner due to impaired sight. 

Judge Williams holds that in an appropriate case, a tribunal considering activity 9 and someone with severe visual impairment will approach matters in the same way as it would with any other claimant maintaining activity 9 has application:

“A tribunal therefore will broadly have regard to how the claimant is able to engage with others face-to-face on a one-to-one basis or within a small group; whether that engagement is to an acceptable standard in social situations; how the claimant interacts with others in a contextually and socially appropriate manner, and whether the claimant is able to understand body language and establish relationships.

In so doing, the tribunal must make appropriate findings of fact about the nature and quality of that interaction with other people, and what level of support, if any, is required - to ascertain whether any of the descriptors in activity 9 have application.”

He continues that:

“When considering a claimant with a visual impairment, the tribunal should look to ascertain the level of sight restriction by reference to the evidence available. In so doing, a tribunal will be able to address whether the claimant is able to identify facial expressions and more generally read body language or identify whether someone is talking to him or, for example, offering a handshake.”

Judge Williams also expresses concern that the tribunal in this case had taken a too simplistic approach in concluding that the claimant “engaged well with us at the hearing, without prompting and without social support”:

“That may be correct, and it is a legitimate observation to make, but as will be apparent from the analysis of the case law above, the fact that the claimant was able to engage well at a tribunal hearing (when accompanied by his sister and a representative from RNIB), does not in itself give a complete indication of how he might engage socially when not accompanied. Some further investigation was therefore required about how he would manage outside of the tribunal setting.” 

Finally, in upholding the claimant’s appeal, Judge Williams concludes that:

“The tribunal’s reliance on the lack of social support and prompting given in the tribunal setting therefore also amounts to an error of law. It follows from the case law above that the tribunal should have focused more closely on how the claimant would cope outside of the tribunal environment.

While the tribunal was entitled to place reliance upon its own observations, it does not properly balance or address the other evidence given. The record of proceedings suggests a substantial impairment and while the tribunal’s observations reflect to a degree the claim form and in part what the claimant told them, it overlooks central aspects of what the claimant and his advisers advanced.“

CE/521/2017: Assessment of the “learning tasks” descriptor

Upper Tribunal Judge: Rowley 

This appeal concerns the “learning tasks” activity. A claimant qualifies if (s)he “cannot learn how to complete a simple task, such as setting an alarm clock, due to cognitive impairment or mental disorder.”   

Upper Tribunal Judge Rowley begins his decision by separating this wording into its constituent components:

“Cannot learn” 

“The activity is concerned with a claimant’s ability to “learn” a new task, i.e. their ability to absorb, understand and retain information.  As the WCA Handbook recognises, different people learn in different ways. They may prefer to watch a visual demonstration, have verbal instruction or read instructions.  An inability to learn using one method would not generally lead to an overall inability to learn a new task if another way could be employed.”   

How to complete a simple task”

“Simple task” is not defined.  It would be inappropriate for me to offer any further definition, save perhaps to note the obvious - a simple task is one which is easy and straightforward.  It is unlikely to involve more than one or two steps  “such as setting an alarm clock”

The words “such as” are important.  They confirm that the illustration given - of setting an alarm clock - is merely an example.  Other instances may need to be considered by decision makers and tribunals. Further examples are listed in the WCA Handbook:

“Brushing teeth. This would involve remembering to put toothpaste onto a brush and brushing all areas of teeth.

Washing. This would involve the ability to use soap/shower gel and wash their body.

Brushing hair.

Turning on the television/using basic functions on the TV remote control.

Getting a glass of water.” 

These examples may be helpful in some cases, but they are not definitive or exhaustive.  Each case will, of course, turn on its own facts, and a tribunal must explore and consider whatever simple tasks may be applicable, given the particular circumstances of the claimant.”

“Due to cognitive impairment or mental disorder”

These words are fundamental to the activity. They are underpinned by regulation 34(6)(b) of the Employment and Support Allowance Regulations 2008, the relevant parts of which provide that:

“In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 3, it is a condition that the claimant’s incapability to perform the action arises –

“from a specific mental illness or disablement; or

as a direct result of treatment provided by a registered medical practitioner for specific mental illness or disablement.”

Put simply, if a claimant is unable to learn how to complete a simple task for reasons which are not due to cognitive impairment or mental disorder (s)he will not satisfy the descriptor.”

The claimant in this case has, amongst other things, drug dependency, alcohol misuse and depression.  On being refused ESA he appealed to the First-tier Tribunal which awarded 21 points under the Work Capability Assessment (15 under descriptor 11a of Schedule 2 and 6 under descriptor 15c). It also found that the claimant satisfied activity 9 of Schedule 3 (“cannot learn how to complete a simple task”), resulting in him being placed in the Support Group.

According to the Healthcare Professional (HCP), the claimant had said that he was able to use Google, a mobile phone, a washing machine, a taxi and an alarm clock. 

Judge Rowley first holds that the tribunal erred in not explaining why it rejected what was said in the HCP’s report in relation to the claimant’s reported ability to do certain tasks. 

He then considers the tribunal’s finding that the claimant was unable to complete a simple task such as setting an alarm clock. It said:

“The tribunal considered the type of process that would be required in order to set a clock alarm. The tribunal found that whether the clock alarm was an electronic one or one which required winding up, there would have to be an understanding of how to set the time for the clock, or the alarm, and this required an ability to recognise numbers. The tribunal found that even if [the claimant] was shown how to set the clock on at least two occasions, he would be unable to set the clock independently because he was unable to read numbers or words…”

Judge Rowley holds that there are two significant errors with this approach. 

“First, the tribunal did not focus on the functions involved in “learning tasks.”  As I have said, the activity is concerned with a person’s ability to absorb, understand and retain information.  It is not a test of their ability to read numbers or words.  I recognise that an inability to read numbers or words may, in some cases, suggest that a claimant has a cognitive impairment or mental disorder which may mean that they are unable to learn how to complete a simple task.  I also recognise that that will not necessarily be the position in every case.  At most, in an appropriate case, an inability to read numbers or words may suggest that the tribunal should explore the matter further.  The tribunal failed to do that in this case.” 

The second error of the tribunal’s approach is that it limited its consideration to the claimant’s inability to set an alarm clock:

“As I have said, that task is given in descriptor 9 purely by way of an example. One can think of many other simple tasks which do not require an ability to read or understand numbers. Some of them are listed above.  I am by no means suggesting that in every case a tribunal must work through a long list of examples.  The amount and depth of consideration will depend on the facts of each case.  Some will be more obvious, and demand less enquiry, than others.  But in this particular case, by restricting its attention to that one example the tribunal erred in law.  It failed to look at the matter in the round.“

Judge Rowley therefore sets the tribunal’s decision aside and remit the appeal to be reheard by a new tribunal.

CE/1153/2017: Interests of justice - whether tribunal’s reasons for hearing appeal in claimant’s absence adequate

Upper Tribunal Judge Rowland

The claimant did not attend her hearing but telephoned to say, that she was too unwell to attend.   On the day before the rearranged hearing, the First-tier Tribunal received from the claimant, a letter from a doctor, saying only :

“The [sic] reason of cancer and severe depressive disorders the patient [the claimant] cannot appear in HM Court & Tribunals Service on 07/09/2016.”  

A clerk telephoned the claimant and noted in the computer log:

“Spoke to Appl over the phone she confirmed that she would like for her case to be heard in absence.”

The First-tier Tribunal decided to hear and dismiss her case in the claimant’s absence.  In the decision notice, it said:

“[The claimant] … stated that she would not be attending the hearing due to ill health.  She provided a letter by post a letter from a private doctor.  The Tribunal considered the overriding objective in Rule 2 and Rule 31 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 and concluded that it was in the interests of justice to proceed in her absence.”

On granting the claimant permission because it was arguable that the First-tier Tribunal’s reasons for not adjourning the hearing were not adequate Judge Rowland said:

“1. ….  It is not entirely clear what the First-tier Tribunal meant by there being “sufficient medical evidence in the bundle to decide the appeal without [the claimant’s] presence and oral evidence”.  In the sense that there was enough evidence to make a decision, the First-tier Tribunal may have been right, but it is arguable that the question was whether there was sufficient evidence to enable it to do so fairly if the decision was to be adverse to her. 

It is easy to see why, having decided to deal with the case on the papers, the First-tier Tribunal decided as it did in the light of the written evidence and, in particular, the health care professional’s report and it was right that the claimant had not produced medical evidence to show that the health care professional was wrong. 

On the other hand, it is arguable that the point of a claimant having a right to an oral hearing is that it should not be necessary to produce such evidence and such a hearing gives the claimant an opportunity to explain in person why he or she disagrees with the health care professional, which many claimants manage better orally than in writing.”

The Secretary of State submitted to Judge Rowland that the First-tier Tribunal had erred for the reasons he suggested.

Judge Rowland identifies that relevant legislation to the appeal includes

Rules 27 and 31 of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) that provide:

“27.

(1) Subject to the following paragraphs, the Tribunal must hold a hearing

before making a decision which disposes of proceedings unless—

(a) each party has consented to, or has not objected to, the matter being

decided without a hearing; and

(b) the Tribunal considers that it is able to decide the matter without a hearing.

31.

If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal —

(a) is satisfied that the party has been notified of the hearing or that reasonable

steps have been taken to notify the party of the hearing; and

(b)considers that it is in the interests of justice to proceed with the hearing.”

In setting aside the First-tier Tribunal’s decision, Judge Rowland says:

“In the present case, the First-tier Tribunal did not make a finding as to whether the claimant could reasonably have been expected to attend the hearing.  It may be that its references to the letter received the day before the hearing having come from a “private doctor” and to the lack of evidence from the surgeon are an indication that it was sceptical of her claim to be too unwell, but it did not say so and, anyway, there was the factor of her depression to consider. 

Making such a finding is important because, if the claimant had a good reason for not being able to attend, it would raise, under rule 27, the question whether her request that the case be determined in her absence should have been accepted at face value or, under rule 31, the question whether it was permissible to decide the case in her absence. 

On the other hand, if she did not have a good reason for not attending, that would go into the balance when deciding whether the First-tier Tribunal should proceed without a hearing or in her absence.  The First-tier Tribunal is entitled to take a robust approach when considering on the basis of limited evidence whether a claimant has a good reason for not attending, provided that it takes a correspondingly liberal approach to subsequent applications for setting aside in cases where compelling medical evidence is subsequently provided and there is, or may be, an explanation for it not having been provided earlier."

Judge Rowland also finds that the tribunal erred as It did not consider whether the evidence before it was not only sufficient to enable it to reach a decision but was also sufficient to enable it to do so fairly in the absence of the claimant.:

“I accept that it did refer to the interests of justice in its decision notice, but it did not say there what it had taken into account and I do not consider that the reasoning overall, with its indecision as to whether rule 27 or rule 31 applied, is sufficient.  Moreover, there is an additional factor in this case.

In a case where a claimant has asked for a hearing and has a very good reason for not being able to attend a hearing when it takes place, the First-tier Tribunal is unlikely to be entitled to proceed in the claimant’s absence unless either it is prepared to allow the appeal or it is clear that the appeal has no reasonable prospect of success, such that it could have been struck out without a hearing under rule 8(3)(c) (see rule 27(3)).

… Where the First-tier Tribunal considers that it has sufficient evidence upon which to make a decision, one frequently important consideration when deciding whether to adjourn due to the absence of the claimant is how likely it is that oral evidence from the claimant would make a difference to the outcome.” 

CE/1492/2017: Mobilising: need to specify which part of mobilising descriptor 1(d) is satisfied / need to exclude of descriptors 1(c) or 1(a)

Upper Tribunal Judge: Mesher

In this decision, Upper Tribunal Judge Mesher considers WCA Activity 1 – “Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally or could reasonably be worn or used”. 

The relevant Mobilising descriptors at issue in the appeal were 1(a), 1(c) and 1(d):

1(a)

Cannot unaided by another person either:

(i) mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or

(ii) repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion.

1(c)

Cannot, unaided by another person either:

(i) mobilise more than 100 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or

(ii) repeatedly mobilise 100 metres within a reasonable timescale because of significant discomfort or exhaustion.

1(d)

Cannot, unaided by another person either:

(i) mobilise more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or

(ii) repeatedly mobilise 200 metres within a reasonable timescale because of significant discomfort or exhaustion.

Judge Mesher holds that in the case under appeal, the tribunal had not said:

  • which of the two alternatives within descriptor 1(d) were satisfied; and
  • not specified the distance it would expect the claimant to be able to walk.

Judge Mesher reasons that if the tribunal considered that the claimant fell within descriptor 1(d)(i), because she could not mobilise more than 200 metres without stopping, that would not as a matter of logical necessity exclude satisfaction of descriptor 1(c). Therefore it might be necessary for a tribunal to explain why it chose descriptor 1(d)(i) rather than 1(c)(i).

In relation to descriptor 1(d)(ii) (cannot repeatedly mobilise more than 200 metres), Judge Mesher says that

“… if a claimant can only mobilise without stopping for some distance between 100 metres and 200 metres, that does not exclude the possibility that the claimant, while able to mobilise more than 100 metres without stopping, cannot achieve 100 metres repeatedly within a reasonable timescale and so satisfies descriptor 1(c)(ii). The same could potentially be said in relation to descriptor 1(a)(ii) and 50 metres.”

Judge Mesher rules that tribunals must specify which of the two alternatives within descriptor 1(d) (and 1(c)) are satisfied, to rule out the application of descriptors 1(c) (or 1(a):

 “… while it may not be necessary to the award of 6 points under descriptor 1(d) to specify which alternative is satisfied, in terms of the required underlying findings of fact on the whole activity of mobilising it is necessary in any statement of reasons to be more specific. It seems to me that there are two ways out where descriptor 1(d) is satisfied.

The tribunal can identify the distance that it finds that the claimant can mobilise without stopping in order to avoid significant discomfort or exhaustion without considering the issue of repetition. There can then be a firm factual basis, allied to whatever explanation is appropriate, for not applying descriptor 1(c) or 1(a) and in particular for not applying descriptor 1(c)(ii).

Alternatively, if the tribunal is unable to be so specific, it may be sufficient for it to explain that, while not sure precisely how far the claimant can mobilise beyond 100 metres without stopping, it has expressly considered descriptor 1(c)(ii) and is satisfied (and why) that the claimant can repeatedly mobilise 100 metres within a reasonable timescale.”

CE/1585/2017: If tribunal finds it is reasonable for a clamant to mobilise using a wheelchair it must make findings on the distance that the claimant is able to cover

Upper Tribunal Judge: Poynter

The tribunal accepted that the claimant had significant difficulty walking as a consequence of his health condition, which was progressive, and which affected his lower limbs. It found that he would not be able to walk for more than 50 metre[s] without stopping. However, the tribunal also needed to consider whether he could reasonably use a manual wheelchair, and if so, how far he could mobilise on level ground in that wheelchair.

The tribunal found that there was no functional impairment of the claimant's upper limbs, and that he could sit for an hour before having to move. Although he said he had discomfort from his lower back, there was no particular medical condition which affected his upper body, which might prevent him from being able to propel wheelchair manually.

The tribunal concluded that it was appropriate to assess the claimant on the basis that it would be reasonable to expect him to use a suitable wheelchair, even though the time of the decision he had not had a formal wheelchair assessment.

So it found that he would not generally need to stop after mobilising for 50 metres at a reasonable pace, in order to avoid significant discomfort, and it determined that he did not meet the WCA criteria in relation to mobilising.

However, in setting aside the tribunal’s decision, Judge Poynter says that:

“It does not follow from the fact that it would be reasonable to expect a person to use a manual wheelchair, that that person can mobilise in a such a wheelchair for any particular distance on level ground without stopping in order to avoid significant discomfort or exhaustion; or that he can repeatedly do so within a reasonable timescale without experiencing significant discomfort or exhaustion.

He adds that:

“In this case, the First Tier Tribunal (FTT) concentrated on the issue of whether a manual wheelchair could reasonably be used, to the complete exclusion of the issue of how far he could mobilise (or repeatedly mobilise) in such a wheelchair without experiencing significant discomfort or exhaustion. That latter issue is one of secondary fact (although a failure to address it is an error of law) and it must therefore be decided on the evidence, in the same way as, for example, a decision about how far someone can walk.”

Judge Poynter also holds that the tribunal’s approach lacked reference to a ‘benchmark’ of how far a person with disabilities such as the claimant could normally or repeatedly propel a manual wheelchair. Such a reference provides something against which the tribunal’s findings about upper body function could be compared, and that:

“Without that, and subject to paragraph 30 below, there was no evidence in this case on which the First-tier Tribunal could properly have made a judgment on the balance of probabilities about how far the claimant could mobilise (or repeatedly mobilise) in a manual wheelchair. Moreover in such a case, the written statement of reasons would have needed to explain how the tribunal had assessed the evidence by reference to the benchmark.

If a FTT is relying on the specialist knowledge of its medical or disability-qualified member  its written statement of reasons should say so."

Citing the reported case [2015] AACR 5, Judge Poynter also highlights the to be cautious in relying on the prospect of a claimant having a wheelchair assessment to support a finding that it is reasonable to use a wheelchair. The fact that an assessment is required implies the possibility of an outcome in which a wheelchair is judged to be unsuitable.

CSE/138/2016: Whether falling asleep during the day can amount to “an involuntary episode of lost or altered consciousness”

Upper Tribunal Judge: Gamble

The point at issue in this case is whether falling asleep during the day can amount to “an involuntary episode of lost or altered consciousness” for the purpose of descriptors (a) or (b) of Activity 10, “consciousness during waking moments”, of schedule 2 to the Employment and Support Allowance Regulations 2008. 

The claimant had hypertensitive issues and as a result of this she suffered from daily headaches, general fatigue and lethargy. 

In their finding of facts the tribunal stated:

“The appellant has a relatively sedentary lifestyle spending much of her time seated indoors.  She falls asleep for 45 - 60 minutes each morning around 10:30am.” 

However, it found that she could receive no points for Activity 10:

“Activity 10 – Consciousness.   The appellant told us that she falls asleep most mornings between 10.30 and 11.00 am. At other times she can feel tired but does not otherwise fall asleep during the day.  Her daily activities are not interrupted by a sudden need to sleep.  Her representative suggested that falling asleep with such regularity is indicative of lost or altered consciousness. 

"The tribunal, applying its own expertise to these matters considered that many otherwise healthy people take a nap during the day and an individual with the appellant’s diagnosis coupled with a very sedentary lifestyle is likely to fall asleep at some point during the day.  The tribunal considered that sleep is not altered consciousness.  It is a natural and ordinary part of life.”

8. Mr Orr represented the claimant before the tribunal.  He invited them to award the claimant 15 points for descriptor 10(a).  Before me  he submitted that the tribunal had erred in law in holding that “falling asleep” did not amount to an episode of “lost or altered consciousness” or alternatively had not explained with sufficient clarity why in their view that was so.  Mr Komorowski responded to Mr Orr’s submission by contending that as a matter of her sleep was not “lost or altered consciousness” for the purpose of Activity 10 and that accordingly the tribunal had not erred in law.

Activity 10, enacted in schedule 2 to the Employment and Support Allowance Regulations 2008, provides:

“10.   Consciousness during waking moments

(a)     At least once a week, has an involuntary episode of lost or altered consciousness resulting in significantly disrupted awareness or concentration.

(b)     At least once a month, has an involuntary episode or lost or altered consciousness resulting in significantly disrupted awareness or concentration.

(c)     None of the above apply.”

In contesting the claimant’s appeal, the Secretary of State submitted to Upper Tribunal Judge Gamble that he should construe the statutory text of Activity 10 by reading it as a whole.  In particular paying particular regard to the statutory formulation of the Activity by reference to “consciousness during waking moments”. That phrase meant when a claimant was not sleeping and its effect was to exclude any application of the point scoring descriptors of Activity 10 to the claimant in the circumstances found in fact by the tribunal. 

In accepting this, Judge Gamble dismisses the appeal as follows:

“The question before me is whether the tribunal correctly decided that none of the point scoring descriptors of Activity 10 applied to the claimant on the basis of the facts which they found.  Reading the statutory formulation of Activity 10 as a whole, I am satisfied that it was not intended that episodes of falling asleep should be covered by those descriptors, given the reference in that formulation to “during waking moments”.  The tribunal construed Activity 10 correctly.  Their decision that neither of the point scoring descriptors of that Activity applied to the claimant was not an error in law."

Personal independence payment

CPIP/1673/2015: Assessment of the “required period” and the “required period condition”

Upper Tribunal Judge: Mitchell

To be eligible for PIP you must satisfy its disability conditions for at least three months (the “required period”) and be likely to continue to satisfy the tests for at least nine months afterwards (the “required period condition”).

The former is provided for by Part 2 of the Social Security (Personal Independence Payment) Regulations 2014 (“PIP Regulations”) and the latter by Part 3 of the Regulations.

This appeal concerns the relationship between the “required period”, which is part of the Personal Independence Payment (PIP) assessment rules, and the PIP “required period condition”.

The claimant was recovering from cancer surgery. The First-tier Tribunal’s found that he scored at least eight PIP on more than 50% of the days of the required period. Had there been no issue as to satisfaction of the required period condition, he would have been entitled to PIP.

However, the Tribunal found that he had recovered from surgery within some six months of his operation and did not need assistance of a type that would score at least eight PIP assessment points for the period of nine months following his date of claim.

The Tribunal held that he did not satisfy the required period condition and was not therefore entitled to PIP.

In dismissing the claimant’s appeal, Upper Tribunal Judge Mitchell says:

“Interpreting the required period condition provisions is not straightforward. They operate by reference to the Part 2 assessment rules but without taking account of the descriptor scoring rules, in particular the 50% rule in regulation 7. These rules determine whether a person is assessed as having limited or severely limited ability to perform daily living or mobility activities.”

Judge Mitchell therefore concludes that:

“… the required period condition provisions are to be applied without taking account of the 50% scoring rule in regulation 7 of the PIP Regulations.

Otherwise, they would not make any difference to the outcome of a claim. Leaving regulation 7 out of account also makes sense of the requirement to carry out a notional assessment “at every time” during the 12-month window of analysis.

Throughout this period, I decide that the individual must fairly be said to have had, or to be likely to have, limited or severely limited ability to carry out daily living or mobility activities, as assessed in accordance with the PIP assessment rules in Part 2 of the Regulations apart from the 50% rule in regulation 7. 

He adds however that:

“This approach must be applied sensibly in the case of conditions with fluctuating symptoms. The legislative intention, which in fact finds expression in regulation 7, is that individuals with such conditions should not be denied entitlement if their symptoms are severe enough to result in limited or severely limited ability most of the time.

The question to be asked, in applying the required period condition “at every time” in the 12 months, is whether it can fairly be said that the individual’s physical or mental condition would, at the time of the analysis, generate symptoms that would most of the time result in limited or severely limited ability to carry out the prescribed daily living or mobility activities. 

If, however, the individual’s health or disability is likely to alter during the nine months following the prescribed date, so that his or her physical or mental condition would no longer generate symptoms resulting in limited or severely limited ability, the required period condition would not be met. The individual would not be entitled to PIP. “

CPIP/2308/2015: "Taking nutrition" is not concerned with the nutritious quality of the food being eaten but the physical and mental actions needed to eat and drink

Upper Tribunal Judge Wright

The issue in this appeal is whether the "Taking nutrition" activity extends to dietary choices or “eating well or nutritiously”.

Judge Wright finds that in its statutory context the activity is concerned with the act of eating (or drinking) and not with the nutritious quality of what is being eaten (or drunk).

In doing so, he rejects the appellants’ argument that an acceptable standard of nutrition is one which is sufficient to maintain health and not result in deterioration of health – to “take proper food” or “eat nutritiously”

Judge Wright instead holds that this fails to have regard to the statutory definition of “take nutrition” in the Parts 1 of Schedule 1 to the PIP Regulations 2013:

“take nutrition” means–

(a) cut food into pieces, convey food and drink to one’s mouth and chew and swallow food and drink; or

(b) take nutrition by using a therapeutic source;”

“therapeutic source” means parenteral or enteral tube feeding, using a rate-limiting device such as a delivery system or feed pump

He then reasons that:

“… the activity of “taking nutrition” must therefore mean “cutting food into pieces, conveying food and drink to one’s mouth and chewing and swallowing food or drink”, and no more.

Nothing in any of these actions which go to make up the activity concerns the nutritious adequacy of that which is being eaten or drunk (save, perhaps (I am not sure if this can sensibly be described as being anything to do with the nutritious quality of the food), that the food contemplated needs to be one which is capable of being cut into pieces).

He therefore concludes that:

“The plain focus of the activity “taking nutrition” in my view is therefore on, and is only on, the act of eating and drinking, and thus the enquiry under the PIP scheme has on be on whether, per sections 78(1) and 80(1)(a) of the Welfare Reform Act 2012, a person’s ability to carry out the activity of cutting food into pieces, conveying food and drink to their mouth and chewing and swallowing food or drink, is limited by their physical or mental condition.

 Once it is understood that, putting matters colloquially, it is the activity of eating and drinking and the physical and mental actions needed to carry out that activity which is in issue under the activity “taking nutrition”, then the word “nutrition” ceases to have any special quality beyond its being a term to cover both eating and drinking, and therefore the nutritious quality of what is being eaten or drunk can be recognised as being irrelevant under the PIP statutory scheme.”

Where diet requirements or the quality of the food might be said to be relevant is under activity 1 in Schedule 1 to the Regs, which is concerned with “Preparing food”. The “simple meal”  referred to in the descriptors under activity 1 is defined in Part 1 of Schedule 1 to the PIP Regs as meaning “a cooked one-course meal for one using fresh ingredients” (my emphasis). 

It may therefore be argued that it is at this stage that dietary requirements and not just eating tinned food might be reflected in the statutory scheme. It may further be argued that, if so, this further emphasises that activity 2 is not concerned with the contents of the food because that is addressed in activity 1. Put shortly, activity 1 might be said to be directed to the actions of making a meal and activity 2 the actions then needed to eat (or drink) the meal once made.”

CPIP/2908/2015: An incontinence pad is an aid for the purposes of Managing toilet needs or incontinence

Upper Tribunal Judge: Rowley

Daily living activity 5 in Part 2 of Schedule 1 to the PIP Regulations is headed “managing toilet needs or incontinence.”  The relevant parts of the activity in relation to this appeal are as follows:

Column 2

Descriptors

Column 3

Points

a. Can manage … incontinence unaided

0

b.   Needs to use an aid … to be able to manage … incontinence

2

Regulation 2 of the PIP Regulations provides that an “aid or appliance”:

“(a) means any device which improves, provides or replaces C’s impaired physical or mental function…”

Part 1 of Schedule 1 to the PIP Regulations contains definitions of some of the terms used in the descriptors.  The following ones are relevant:

‘“unaided”’ means without – (a) the use of an aid or appliance; or (b) supervision, prompting or assistance.’

‘“manage incontinence” means manage involuntary evacuation of the bowel or bladder, including using a collecting device or self-catheterisation, and clean oneself afterwards’.

In this decision, Upper Tribunal Judge Rowley holds that “an incontinence pad falls squarely within the definition of an “aid” as it “constitutes a device which improves a claimant’s impaired physical function of control of the bladder or bowel”. 

In doing so he says he is fortified in his view by what is said in the Government’s response (dated 13 December 2012) to the consultation which immediately preceded the PIP Regulations.  

The Government’s response contains the following:

“5.57 Various respondents asked us to clarify whether we consider incontinence pads … as aids and appliances.  We recognise that … these can create additional costs and therefore they are considered as aids and appliances for the purposes of the assessment.” 

He also cites the PIP Assessment Guide issued by the DWP to Health Professionals carrying out PIP assessments as containing the following advice:

“Managing incontinence means the ability to manage involuntary evacuation of the bladder and/or bowel including … [using] incontinence pads…”

In addition, in relation to descriptor 5b, both the Government response to the consultation and the Guide list “suitable aids” which:

“could include … incontinence pads.”

  1. This approach may explain why question 7a on the PIP claim form is in these terms:

“Q7a Do you use an aid or appliance to go to the toilet or manage incontinence?

Aids and appliance include things like … incontinence pads…”

Judge Rowley also says:

“… that there is no doubt in my mind that the use of the word “or” between “bowel or bladder” in the definition of “manage incontinence” is used in the disjunctive sense.  In other words, a claimant (such as the one in this case) who has bladder but not bowel incontinence could potentially qualify under 5b; and vice versa”.

CPIP/3352/2015: A bed is not an aid for dressing and undressing

Upper Tribunal Judge Markus

Following a First Tribunal finding that the appellant was not entitled to PIP, the claimant appealed to the Upper Tribunal on the grounds that it had failed to determine whether she needed to use her bed as an aid in order to dress and undress. 

In rejecting that a bed is such an aid, Judge Markus supports the finding of Judge Jacobs in CW v SSWP [2016] UKUT 197.

In that case, Judge Jacobs held that:

 “…an aid must help to overcome consequences of a function being impaired that is involved in carrying out an activity and is limited by the claimant’s condition. To satisfy an aid or appliance descriptor, the claimant must need an aid to assist in respect of a function involved in the activity that is impaired.

… The question is this: would this ‘aid’ usually or normally be used by someone without any limitation in carrying out this particular aspect of the activity? If it would, the ‘aid’ is not assisting to overcome the consequences of an impaired function that is involved in the activity and its descriptors.

… In summary, entitlement to a personal independence payment depends on the claimant having a condition that limits their ability to carry out particular activities. The need to use an aid is a measure of the extent of that limitation.

Whether something is an aid depends on whether it assists in overcoming the consequences of a function being impaired in the carrying out of that activity. That function must be one that is required in order to carry out the particular aspect of an activity, not merely one of a range of functions that could be employed.”

In supporting this reasoning, Judge Hemingway says that:

“The appellant’s appeal to the First-tier Tribunal focussed on pain and tiredness She provided the tribunal with a copy of a local authority assessment of her needs which noted that she needed help with a variety of functions, but did not note a need for help with dressing and also found that she could get up from the sofa and in and out of bed unaided. It was no part of her case that she needed to lie down on the bed in order to finish dressing her lower body, nor that she was unable to raise herself from the bed in order to do so. 

… In summary, the appellant’s case was that she had difficulty putting on her shoes, socks and trousers but that she could do so when sitting on a bed.  For the reasons set out above the tribunal did not make any error of law in concluding that she could perform the activity unaided.”

CPIP/239/2016: Is a Satnav an "orientation aid"?

Upper Tribunal Judge: Rowley

In this decision, Judge Rowley considers whether the claimant’s satellite navigation system (“SatNav”) constitutes an “orientation aid” within the meaning of PIP descriptor 1d of the mobility activities. 

Descriptor 1d of the mobility activities applies where a claimant “cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid.” 

Whilst not in issue in this appeal, descriptor 1f has similar provision in relation to a familiar journey.  

“Orientation aid” is defined in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 as follows:

“‘orientation aid’ means a specialist aid designed to assist disabled people to follow a route safely.”

In considering this issue, Judge Rowley cites the decision in CSPIP/229/2015 in which Judge May pointed out that the navigation system used by the claimant in that case was a generically available SatNav system.  There was no evidence to suggest that any modifications had been made to the system.  As there was no evidence to suggest that the SatNav was a “specialist aid” within the meaning of the regulations she held that it was not an “orientation aid.”

Judge Rowley adopts a similar approach: 

“In contrast to the general definition of “aid or appliance” in regulation 2, the definition of “orientation aid” is expressly limited to a “specialist aid” which is “designed to assist disabled people to follow a route safely” (my emphasis). 

Thus, if a claimant’s SatNav is one which is in fact commonly available, without a particular modification or specially designed feature as envisaged by the definition, it will not, in my judgment, constitute an “orientation aid” under mobility descriptors 1d or 1f. 

In this case says Judge Rowley:

“… there was no evidence before the tribunal to suggest that the claimant’s SatNav would constitute a “specialist” aid which was “designed to assist disabled people to follow a route safely.” 

The mere fact that it was built-in to a car obtained under the Motability Scheme, without more, would not be sufficient.  If there is “more,” the claimant may provide evidence of it to the new tribunal.” 

CPIP/449/2016: A commode can be an aid to manage incontinence / impaired mobility may be relevant to issue of whether a claimant needs to use a commode

Upper Tribunal Judge: Poynter

The issue before Judge Poynter was whether the First Tier Tribunal had adequately explained why the claimant did not need an aid or appliance, namely a commode, in order to manage incontinence.

At the hearing, the Secretary of State accepted that a commode is an “aid” within the definition of “aid or appliance” for the purposes of PIP.

The Secretary of State also accepted that it is the particular circumstances of the individual claimant are relevant to the PIP assessment. What must be assessed are the reasonable requirements of a person with the claimant’s characteristics and circumstances, so the test is partially objective and partially subjective.

However, the Secretary of State did not accept is that a claimant’s mobility difficulties can ever be relevant to the daily living activity of managing toilet needs or incontinence.

Judge Poynter explains that he does not have to decide this issue in the context of this appeal as there was not sufficient evidence to show that the claimant suffered from incontinence or needed to use a commode.

However, he does comment as follows:

“I accept that if a claimant does not suffer from incontinence—that is to say, if he does not have a condition that reduces his ability to control his bowel or bladder so that, at least on occasion, he experiences involuntary evacuation then there is nothing to manage within the meaning of the activity and therefore mobility problems cannot be relevant to such management.

Put another way, many people with normal bowel and bladder control may nevertheless experience being “caught short” from time to time. And it is not difficult to accept that a person whose mobility is restricted is likely to find himself caught short more often than someone whose mobility is unimpaired. That may mean that the former person has more toilet accidents than the latter (who may, in practice, have none). But, in the absence of a condition that impairs voluntary control over the bowel or bladder, that is because of the former’s restricted mobility, not because he is incontinent.

However, if a claimant does have a condition that can lead to involuntary evacuation of the bowel or bladder, the position seems to me to be different. Such a person may or may not also have mobility problems and, if he does, then it seems likely that the condition will be more difficult to manage than if he does not. In such a case, I cannot as presently advised see any reason why any mobility problems should not be taken into account when assessing whether such a claimant reasonably needs to use an aid or appliance. That is particularly so given the Secretary of State’s acceptance that the assessment must address the reasonable needs of a person with the claimant’s characteristics.

Finally, it is relevant that the definition states that managing incontinence includes “us[ing] a collecting device or self-catheterisation, and clean[ing] oneself afterwards”: it is not confined to those activities.”

CPIP/772/2016: Not necessary to have difficulties with dressing and/or undressing / need to use an aid or appliance to put on or take off socks (but not shoes) is sufficient

Upper Tribunal Judge: Rowley  

The issues with which this appeal is primarily concerned arise in relation to activity 6 of the daily living component of PIP.

The claimant submitted that she should score 2 points under descriptor 6b, the terms of which are:

“Needs to use an aid or appliance to be able to dress or undress.”

The following are relevant definitions. 

Regulation 2 of the Social Security (Personal Independence Payment) Regulations 2013 provides that an

‘“aid or appliance” – (a) means any device which improves, provides or replaces C’s impaired physical or mental function….’

Under Schedule 1 to the Regulations:

‘“dress and undress” includes put on and take off socks and shoes.’

In allowing the claimant’s appeal, Judge Rowley holds that:

It is not necessary for a claimant to demonstrate that they have difficulties with both dressing and undressing themselves in order to be awarded points under descriptor 6b.  The need to use an aid or appliance for one or the other will be enough. 

If a claimant needs to use an aid or appliance to be able to put on socks (but not shoes) that is sufficient to score points under descriptor 6b.

He also expresses the view that a claimant who is able, unaided and unassisted, to put on slip-on shoes but not shoes that require fastening, does not score points under activity 6.

CPIP/1328/2016: Illiteracy that does not arise from a mental condition is irrelevant / for the purposes of Planning and Following a journey a destination need not be local.

Upper Tribunal Judge: Jacobs  

In this decision, Upper tribunal Judge Jacobs considers the PIP daily living activity of Planning and following a journey -

Activity

Descriptors

Points

1. Planning and following journeys.

a. Can plan and follow the route of a journey unaided.

0

b. Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to the claimant.

4

c. Cannot plan the route of a journey.

8

d. Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid.

10

e. Cannot undertake any journey because it would cause overwhelming psychological  distress to the claimant.

10

f. Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid.

12

Specifically, he considers the issues of the relevance of a claimant’s illiteracy to that activity and whether the journey envisaged by the activity has to be a local one.

In his claim pack, the claimant said that he needed help to get to an unfamiliar location and sometimes did not go out because of severe anxiety or distress. He added:

“I can manage a familiar route, I often get anxious if I have to go somewhere that I am unfamiliar with. This is when I am alone, most of the time I wouldn’t go alone. I would generally go most places with my wife.”

The First Tier Tribunal held that Activity 1d applied to the claimant and said:

“Illiteracy is, generally, likely to present difficulties in planning and following the route of an unfamiliar journey. [The claimant] told us such would prevent him getting to London without help and that he ‘wouldn’t have a clue’ if planning and attempting to follow an unfamiliar journey. He said he would not be able to read a satnav.

We accepted his suggestion that he would risk getting lost if a diversion took him away from a route that he not know, although he conceded that if there were yellow diversion signs he might cope following them. However, generally, he would not be able to follow the route of an unfamiliar journey without help from another person. 10 points were awarded. “

The Secretary of State then appealed to the Upper Tribunal.

In considering the issue of illiteracy, Judge Jacob’s says:

“Some people cannot read because they have a mental condition that limits their ability to read or has prevented them learning to do so. Others cannot read because they have never learned. Only the former is relevant to personal independence payments.

Section 79 of the Welfare Reform Act 2012 provides that a person is entitled to the mobility component if their ability to carry out mobility activities is limited or severely limited ‘by the person’s physical or mental condition’: section 79(1)(b) and (2)(b). Section 78 makes equivalent provision for the daily living component. This means that entitlement may take account of illiteracy for a person who has limited ability to read or who could not learn to read, but not for a person who simply has not learned.

In the claimant’s case he says:

“My conclusion is that the evidence did not support any finding that the claimant had a mental condition that affected his ability to read or learn to read. There is no medical evidence to support such a finding. The only reference to any condition is from the claimant, who mentioned dyslexia but admitted that it has not been diagnosed.

Judge Jacobs therefore holds that:

“The tribunal was wrong to take the claimant’s reading difficulties into account for the mobility component. They were irrelevant to the mobility component, just as they were to the daily living component.”

Judge Jacobs then considers whether the journey envisaged by the planning and following a journey activity has to be a local one.

He outlines that journeys are used in Activity 1 in two ways.

Some descriptors (b and e) refer to the claimant’s ability to ‘undertake any journey’:
“This applies to any journey, regardless of whether it is familiar or not and regardless of its length or duration. For practical purposes, it will be sufficient to consider only a short, local journey. It is difficult to imagine a claimant who would experience overwhelming psychological stress on a local journey, but not on a longer journey to a more distant destination.”

The other descriptors refer to the claimant’s ability to plan or follow ‘the route of a journey with Judge Jacobs finding that it is the route that matters, not the destination:

“The only qualification to the nature of the journey in the descriptors is the distinction between familiar and unfamiliar journeys.

… Entitlement depends on the presence of a mental condition that limits the claimant’s ability to carry out the Activity. Activity 1 tests the claimant’s ability to plan and follow routes and undertake journeys. In applying Activity 1d, the decision-maker and, on appeal, the tribunal must identify the relevant features of a claimant’s mental condition and investigate how they limit their ability to carry out the function specified: in this case, following the route of an unfamiliar journey. The focus is on the effect of the mental condition in following a route.

The test is general in nature, without reference to the individual characteristics of the route whether by reference to the destination or any factor other than that the journey must not be familiar. The claimant’s ability may vary, but only the variations catered for by the descriptor are relevant.

There are two. First, the route must be that of an unfamiliar journey. Second, the benefit of another person, assistance dog or orientation aid must be disregarded. That is all that the law says.

It is necessary then to apply the law. In doing so, especially in a tribunal, it may be helpful to focus on a journey to a particular place in order to help the claimant think about the sort of problems that might arise and how they would cope. But that is a matter of convenience and evidence, no more”.

Judge Jacobs continues:

“It may be that for practical purposes it will be sufficient to consider a local journey, because the difficulties should be the same, but that is not a matter of convenience, not interpretation. It is wrong to apply this requirement as a matter of law. It is not what the legislation says. It diverts attention from the relevant focus of the enquiry, which should be on the claimant’s condition and its effect on his ability to carry out the Activity. It raises irrelevant issues of definition and relevance: what is local and are characteristics of the claimant’s locality relevant? And it produces the result that a claimant’s entitlement depends on where they live.

A person who lives in a quiet corner of rural Wales will be subject to a different test from one who lives on the outskirts of London or some other ‘intimidating destination’. As often happens when entitlement depends on disablement, numerous issues of interpretation that appear to arise on the language of the descriptors disappear when the investigation and analysis concentrates on identifying the nature of the claimant’s disability.”

CPIP/1491/2016: Limitations in making budgeting decisions may arise from physical disabilities in rare cases

Upper Tribunal Judge: White 

The appellant’s health problems included osteoarthritis in both wrists, fingers, ankles and left knee, the consequences of a heart attack (causing her chest pains), high cholesterol, sleep problems, and psoriasis.

He reported difficulties in preparing food, eating and drinking, managing treatments, washing and bathing, managing toilet needs, dressing and undressing, communicating, making decisions about money, going out, and moving around.

A decision maker accepted the advice of the healthcare professional and disallowed his PIP claim with no points being award for daily living activities or mobility.

The outcome of his appeal was that this decision was confirmed, although the tribunal scored the appellant six points on the daily living descriptors and four points on the mobility descriptors.

The appellant’s representative submitted to the Upper Tribunal that:

“The claimant’s evidence was that he could not manage the household finances due to the pain he is in. It is assumed that this was because he would have extreme difficulty concentrating but this matter is not examined by the Tribunal and the HCP examination only examines his ability to make simple budgeting decisions.

The HCP records that this area cannot apply because he had “no learning disability, mental health cognitive impairment.” The record of proceedings shows that the Tribunal do not examine this issue at all.

It is submitted that there is nothing in the descriptor to suggest that problems with complex budgeting decisions need to arise through mental health problems.”

Making budgeting decisions is a daily living activity listed in Part 2 of Schedule 1 to the Social Security (PIP) Regulations 2013:

Activity 10. Making budgeting decisions

a  Can manage complex budgeting decisions unaided.Score 0

b  Needs prompting or assistance to be able to make complex budgeting decisions. Score 2

c  Needs prompting or assistance to be able to make simple budgeting decisions. Score 4

d  Cannot make any budgeting decisions at all. Score 6

A number of terms are defined in Part 1 of Schedule 1.

“Complex budgeting decisions” are defined as decisions involving calculating household and personal budgets, managing and paying bills, and planning future purchases.

“Simple budgeting decisions” are defined as decisions involving calculating the cost of goods, and calculating change required after a purchase.

In reaching his decision in this case, Judge White considers CPIP/3015/2015 and CPIP/0184/2016.

He notes that in both the cases there were elements of both physical and mental health issues and that there is nothing in either decision which suggests that physical disabilities are excluded in relation to the activity of making budgeting decisions.

He then agrees with both decisions in so far as they indicate that the primary focus of the activity of making budgeting decisions is the cognitive or intellectual function of making decisions which fall within the definitions of simple and complex budgeting decisions, saying that:

“It is plain to me that there is nothing in relation to the activity of making budgeting decisions which excludes the presence of difficulties flowing only from physical disabilities from being the source of limitations in relation to making budgeting decisions. The statutory language refers to a person’s ability to carry out daily living activities being limited by the person’s physical or mental condition.”

But he adds the following significant proviso:

“However, it will only be in the most extreme set of circumstances that limitations flowing from a physical disability alone will result in a person having limitations in relation to making budgeting decisions as set out in daily living activity 10. Those circumstances are likely to be so extreme—and the consequences so obvious—that they are highly unlikely to be the subject of appeals to tribunals.

Furthermore, a person in such circumstances is highly unlikely to need to rely on points from the making budgeting decisions activity in order to meet the threshold for an award.”

CPIP/1534/2016: ‘Communication support’ can be provided by family and friends and is not limited to help from sign language interpreters

Upper Tribunal Judge Rowley

The claimant had moderate to severe bilateral sensorineural hearing loss. While she used two hearing aids her ability to communicate was restricted so that she was reliant on lip-reading.

On making a claim for PIP she only scored two points under descriptor 7b (needs to use an aid or appliance to be able to speak or hear). At her appeal hearing a sign language interpreter was present, however the claimant relied on lipreading and her residual hearing to communicate.

A tribunal dismissed her appeal on the grounds that:

  • she could not benefit from communication support from a signer as she was not conversant in signing; and
  • the informal help she received from friends could not constitute ‘communication support’.

In upholding the claimant’s appeal, Upper Tribunal Judge Rowley says:

“The definition of “communication support” has similarities with that of “social support” under activity 9 (see below).  It has been decided that social support provided by family and friends who are directly experienced in assisting the particular claimant may qualify as “social support” (PR v Secretary of State for Work and Pensions (PIP) [2015] UKUT 584 (AAC), approved and followed on this point in SL v Secretary of State for Work and Pensions (PIP) [2016 UKUT 147 (AAC)). 

By parity of reasoning, in my judgment “communication support” can be provided not only by those trained or experienced in communicating with people with specific communication needs generally, but also by family and friends who are directly experienced in communicating with the claimant alone. 

Judge Rowley adds:

“Communication support” can be provided in several different ways.  In the case of a person with a hearing impairment it may, as I have said, take the form of speech interpreted through sign language.  Further examples would include a speech to text reporter or lip speaker.  There may well be others. 

It may be that a claimant does not have access to communication support which they nevertheless need.  Such support can be expensive and, in some instances, unaffordable.  However, it is the underlying need which is being assessed.  Thus, a claimant will score points under descriptor 7c or 7d, as appropriate, if they currently manage to express or understand verbal information in a way that is not to an acceptable standard, but would be with appropriate communication support.”  

Judge Rowley then sets out how he tribunal “fell into error”:

“Having (rightly) found that “communication support” encompassed signing, the tribunal went on to find that the communication difficulties it had identified could not be overcome or eased by signing as the claimant was not conversant with it.  Thus, said the tribunal, the presence of a sign language interpreter would not assist, and so the claimant could not come within the terms of descriptors 7c or d. 

However, as I have said above, “communication support” can be provided in a number of different ways, and is not limited to a sign language interpreter.  In restricting its considerations to the claimant’s limited ability to sign, and in failing to explore whether other means of communication support may have helped, the tribunal erred in law. 

It also erred he holds as follows:

“Furthermore, the tribunal found that the informal help which the claimant received from certain friends could not constitute “communication support,” as in its view what was contemplated by the term was help from someone who, though not trained, had acquired expertise in giving support to individuals with communication difficulties on a regular basis, perhaps through a voluntary organisation, and that would usually exclude family and friends. 

This, said the tribunal, was consistent with the use of the word “people” in the definition of “communication support.”  A similar argument was considered and, in my judgment, rightly rejected by Upper Tribunal Judge Hemingway in SL v Secretary of State for Work and Pensions (PIP)  [2016 UKUT 147 (AAC) in the context of “social support.”  In the light of my decision that “communication support” can be provided by family and friends who are directly experienced in communicating with a claimant alone, in finding as it did the tribunal erred in law. “ 

CPIP/1599/2016: Risk of harm need not be ‘more likely than not’ when assessing safety under regulation 4 and need for supervision

Benefit: PIP

Upper Tribunal Judge: Three Judge Panel

The appeals in this decision raise questions of interpretation of the term “safely” as defined in regulation 4(4)(a) of the PIP Regulations 2013 and in the phrase “for the purpose of ensuring C’s safety” in the definition of “supervision” in Part 1 of

Schedule 1. 

The definition of “safely” in regulation 4(4)(a) is expressly confined to that regulation.  But the schedule does not define “safety” as used in the definition of “supervision”. 

However, the Three Judge Panel determine that there is a statutory link between the scoring of the daily living activities and the nature of assessment as required by regulation 4 which demands that the two terms are approached consistently. 

The Three Judge Panel outlines that:

“Entitlement to either component of PIP arises where a person’s ability to carry out the daily living or mobility activities is limited or severely limited by their physical or mental condition (sections 78 and 79 of the Welfare Reform Act 2012). 

That is to be determined in accordance with the PIP Regulations (section 80). 

Whether ability is limited or severely limited depends on a claimant scoring the requisite number of points under Schedule 1(regulation 5(3)).

The score is determined by adding the number of points awarded for the highest scoring descriptor which applies in relation to each activity, on over 50% of the days (regulation 5(1) and (2) and regulation 7(1)). 

Each descriptor requires an assessment of the claimant’s ability to perform the activity in the manner described, and that is to be assessed according to regulation 4. 

It follows from this that regulation 4 applies to the assessment of each and every descriptor including, therefore, the need for supervision.”

Following a lengthy analysis of differing case law on this issue the three Judges conclude as follows:

“…the meaning of “safely” in regulation 4(2A) and as defined in regulation 4(4) is apparent when one considers the legislation as a whole and with the assistance of the approach by the House of Lords to the likelihood of harm in the context of protecting people against future harm. 

An assessment that an activity cannot be carried out safely does not require that the occurrence of harm is “more likely than not”.

In assessing whether a person can carry out an activity safely, a tribunal must consider whether there is a real possibility that cannot be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case. 

It follows that both the likelihood of the harm occurring and the severity of the consequences are relevant. The same approach applies to the assessment of a need for supervision.”

CPIP/1693/2016: Tribunal dealing with appeal against supersession decision withdrawing existing PIP award must make findings as to the ground upon which the supersession decision was made; and the date from which it took effect.

Upper Tribunal Judge: Wikeley

This appeal is about the steps a First-tier Tribunal (FTT) should take when considering an appeal against a decision to withdraw a claimant’s current award of PIP before its scheduled expiry date.

The appellant first claimed PIP in October 2013. He was assessed by a health care professional (HCP) on 30 June 2014. The HCP reported at the time that the Appellant “has very unstable mental health issues”. His general observations included the comment that the Appellant “was very dishevelled at assessment. He was clearly struggling with personal hygiene, he was very emaciated at assessment, and claimed to weigh 7 stone, which was in line with his observed weight”.

On 29 July 2014 a decision maker made an award of the enhanced rate of the daily living component of PIP (but no award of the mobility component). The decision maker awarded the appellant a total of 16 daily living points, comfortably in excess of the score of 12 needed for the enhanced rate.  

The PIP award was made for the period from 2 October 2013 to 29 June 2016. However, the letter informing the appellant of the award added that “We’ll contact you after 29 June 2015 to make sure you’re receiving the right level of Personal Independence Payment”.

On 29 June 2015 the appellant received letter headed “Looking at your Personal Independence Payment again.” Accompanying the letter was a new PIP questionnaire, which the Appellant returned.

On 3 September 2015 he was seen by a different HCP. On this occasion the HCP noted “Does not look tired; average build; well kempt; wearing dirty clothes… coped well at interview; normal manner, not anxious, agitated or tense”.

On 9 September 2015 a decision maker decided that the Appellant scored zero daily living points, and his PIP award was withdrawn as from that date. The decision was not changed on mandatory reconsideration. Neither the decision letter nor the mandatory reconsideration decision referred to the previous decision.

The DWP submission to the FTT referred in passing to the previous decision awarding PIP but did not in terms explain why that decision had been changed. In summary, the submission to the FTT read as though it was an explanation as to why a fresh claim for benefit had been refused.

With a FTT upholding the decision, the appellant appealed to the Upper Tribunal.

In upholding the appeal, Upper tribunal Judge Wikeley says that while          the FTT summarised the chronology of events on the appellant’s PIP claim accurately enough it did not note that the decision under appeal was a supersession decision: “Indeed, the FTT’s statement of reasons gives the clear impression throughout that the FTT thought it was dealing with a fresh claim, as evidenced by its conclusion that “As no points were awarded [the Appellant] did not reach the threshold for entitlement to personal independence payment and therefore the appeal failed”. In short, the FTT got off on completely the wrong footing.”

The Secretary of State acknowledged that the supersession decision was carried out following a ‘Planned Review’.”

Judge Wikeley says that one or more of a number of possible grounds may be relied upon in making a supersession decision following a Planned Review, with two obvious contenders as the in practice.

“The first is where there has been “a relevant change of circumstances” within regulation 23(1)(a) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment Support Allowance (Decisions and Appeals) Regulations 2013 (SI 2013/381; “the D & A Regulations 2013”). In such a case the effective date of the supersession depends on the operation of Part 2 of Schedule 1 to the D & A Regulations 2013.

The second obvious situation is where the Secretary of State has received medical evidence from an HCP or other approved person (D & A Regulations 2013, regulation 26(1)(a)).

… A supersession on this basis takes effect in accordance with the normal principles as stipulated by section 10(5) of the Social Security Act 1998 (presumably from the date it was carried out), there being no special modifying provision in Schedule 1 to the D & A Regulations 2013.” 

Judge Wikeley highlights that a tribunal is required to make findings as to:

the ground upon which the supersession decision was made; and the date from which it properly took effect.

In the appellant’s case, the FTT addressed neither of these two issues, and Judge Wikeley finds that its failure to do so amounted to a material error of law. As a result, he sets aside its decision and remits the case for re-hearing.

In doing so he notes that the existence of new HCP medical evidence does not, of itself, preclude supersession on the alternative ground of a relevant change of circumstances.

He agrees with the submission to him by the Secretary of State that said:

“… regulation 26 should be understood as allowing supersession to be carried out where a relevant change of circumstances cannot be identified.

Whether there is an identifiable change of circumstances should thus be considered first, however briefly. Regulation 26 should be considered next if and only if no change of circumstances (or other alternative ground of supersession) has been identified. In effect, regulation 26 is a provision of last resort for cases where no other ground of supersession is made out.”

However, Judge Wikeley disagrees with the Secretary of State’s submission that if a tribunal finds that a previous PIP award was properly superseded under regulation 26 the it is not necessary for the tribunal to explain why its decision is different from the original decision:

“In my view an unduly narrow focus on the jurisdictional niceties of reliance upon regulation 26 loses sight of the fundamental and much wider principle of justice, namely that a party (and, in particular, a losing party) is entitled to adequate reasons for the tribunal’s decision.

It is important to bear in mind the appellant’s perspective. In July 2014 he was awarded the enhanced rate of the daily living component of PIP on the basis of a score of 16 points, such award to run for a further 2 years. However, a little over a year later, applying precisely the same rules, he scored 0 points and his PIP award was terminated. In those circumstances it is entirely understandable that the appellant may well be bemused.”

He then cites the principles and guidance set out in R(M) 1/96 which:

“… are not rendered redundant by the simple fact that the Secretary of State has instigated a Planned Review, obtained a fresh HCP report and concluded that there is now no longer any ongoing entitlement to PIP, making a supersession decision to that effect.”

He therefore concludes:

“The extent to which reasons have to be given in such a case will obviously be context-dependent. However, in a case such as the present, where there was such a stark contrast between the two decisions, the FTT could not simply pretend that the award the previous year was simply a matter of ancient history and of no current potential relevance. It was incumbent on the FTT at least to express a view e.g. that there had been a significant improvement in the Appellant’s condition and functioning in the intervening 15 months. “

CPIP/2292/2016: Can a slower than normal pace of walking which is nevertheless "within a reasonable time period" be considered as one of a range of factors when determining whether walking is being carried out "to an acceptable standard

Upper Tribunal Judge: Hemingway

This appeal concerns the question as to whether a relatively slow pace of walking which nevertheless amounts to walking:

  • “within a reasonable time period” as defined in Regulation 4(4)(c) of the Social Security (Personal Independence Payment) Regulations 2013; can
  • be taken into account as one of a range of factors in considering whether a claimant is able to stand and then move “to an acceptable standard” (see Regulation 4(2A)(b)).

Regulation 4 of the Social Security (Personal Independence Payment) Regulations 2013 concerns the assessment of an ability to carry out activities which for the purposes of this appeal, are as follows:

          “4. – (1)…

                  (2)…

(2A) where C’s ability to carry out an activity is assessed, C is to be assessed as satisfying a descriptor only if C can do so –

a)     safely;

b)    to an acceptable standard;

c)     repeatedly;

d)    within a reasonable time period;

(3)…

(4) in this regulation –

a) “safely” means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity;

(b) “repeatedly” means as often as the activity being assessed is reasonably required to be completed;

(c) “reasonable time period” means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity.”

The Secretary of State argued that any walking which is slow but nevertheless within a “reasonable time period” is to be ignored when considering the ability to walk to an acceptable standard. He submitted that matters such as pain, fatigue and breathlessness would be considered but suggests that slowness is catered for solely within regulation 4(4)(c).

Judge Hemingway finds that this is correct:

“It seems to me that the intention is only to take slowness of walking into account in the event of that slowness fulfilling the relevant 4(4)(c) definition. It would, accordingly, result in inconsistency if a lesser degree of slowness was then to be taken into account elsewhere.

So, if a tribunal finds a claimant does walk at a slower than normal pace but is nevertheless able to cover relevant distances within the “reasonable time period” criteria, it will not be able to take that slowness into account when considering the “acceptable standard” criteria.

I should stress, though, I have only received argument as to this concerning mobility activity 2 and would not dismiss the possibility that, for whatever reason, a different approach might be appropriate with respect to other activities and descriptors.”                                                                                                          

CPIP/2337/2016: No need to make findings in respect of descriptors if points added will not make a difference because maximum award is already achieved

Upper Tribunal Judge: Gray

In addition to the 4 daily living descriptor points awarded by the Decision Maker, the First Tier Tribunal awarded the claimant an addition 8 points.

This resulted in the claimant being awarded a maximum enhanced daily living component award.

However, the tribunal did not go on to consider additional descriptor activities that may have applied to the claimant.

Upper Tribunal Judge Gray holds that it did not err in failing to do this:

“On close scrutiny the statement of reasons makes it is clear that the First Tier Tribunal saw no need to engage in a detailed examination of the two lesser scoring descriptors which were not placed in issue by the Secretary of State. The exercise would have been futile given that the existing lower scores were sufficient for the highest possible award.

This procedure is justifiable and, when the context is understood, it does not demonstrate an inconsistent approach by the First Tier Tribunal.  

The time of the tribunal is precious, and such a judicious shortcut is appropriate case management given the terms of rule 2 of the Tribunal Procedure (First-Tier Tribunal) (SEC) Rules 2008; satisfaction of the overriding objective to deal with cases fairly and justly includes consideration of dealing with the case in ways which are proportionate to its importance, the complexity of the issues and the anticipated costs. The use of tribunal time in purposeless enquiry is not compatible with the overriding objective. 

In such cases it is good practice for the decision notice issued immediately following the hearing to state that, given that the points added by the tribunal result in the maximum possible award, it has not been necessary to consider whether further points are merited in respect of the descriptors for which points are already awarded, or indeed any other descriptor.

That is to avoid misapprehension such as occurred here or subsequently should a supersession of the award be contemplated.        

CPIP/2523/2016: Whether going to the pub daily means the claimant could not satisfy Activity 9(d): Cannot engage with other people due to such engagement causing overwhelming psychological distress

Upper Tribunal Judge Markus

The appellant suffered from a variety of conditions including depression and alcoholism, as well as osteoarthritis, asthma and diabetes. 

She had appealed to the First-tier Tribunal against the Secretary of State’s decision that she was entitled to neither rate of personal independence payment (PIP).  

The tribunal decided that she was entitled only to two points for activity 1(d) and one point for activity 3(b), and so was not entitled to PIP. 

She appealed to the Upper Tribunal on the grounds that the tribunal had erred in failing to award points under activity 9(d).

Schedule 1 of the Social Security (Personal Independence Payment) Regulations 2013. Activity 9(d) provides:

2Cannot engage with other people due to such engagement causing either-

(i) overwhelming psychological distress to the claimant; or

(ii) the claimant to exhibit behaviour which would result in a substantial risk of harm to the claimant or another person.”

Paragraph 1 of Part 1 of Schedule 1 to the Regulations provides that:

  • “engage socially” means: “(a) interact with others in a contextually and socially appropriate manner; (b) understand body language; and (c) establish relationships;
  • “psychological distress “means distress related to an enduring mental health condition or an intellectual or cognitive impairment.

In her PIP claim form the appellant described a history of self harm and loneliness.   In relation to activity 9, she had ticked boxes that she sometimes needed help from another person to help her mix with people and that she found it difficult to mix with other people.  She said that she avoided mixing with other people daily, was totally isolated and that that led to self harm. She said that she went out daily to drink but when other people were around her or attempted to be in her company this made her anxious. 

Before the First-tier Tribunal there was a letter from the Appellant’s GP explaining that it was difficult for the Appellant to obtain help because:

“It is the anxiety and social phobia that most troubles [the Appellant’s] life as this causes her severe restriction with contact with other people …”

However, in its statement of reasons the First-tier Tribunal noted that the appellant went to three pubs daily, went to a chip shop daily, attended appointments with her GP and went to the pharmacist, and concluded:

“It is plain that, on a daily basis, [the Appellant] readily exposed herself to the possibility of a great deal of contact with people she might not have known in situations she would have been unable to control. That she was apparently able to do so successfully in our view supports the findings of the nurse’s examination of her mental state.”

In upholding the appeal, Judge Markus holds that the tribunal failed to make adequate findings of fact to support this:

“The appellant had said that she stood at the bar and moved away if anyone tried to chat with her, and that the regulars tended to leave her alone. The tribunal did not address this evidence but, if it was accepted as true, then that would explain how the appellant could go to the pub despite her anxiety and difficulties in mixing with people. 

In addition, it would be relevant to know how crowded the pubs were and whether there were significant numbers of people other than regulars. The tribunal’s finding that she exposed herself to contact in situations which she would have been unable to control was not supported by adequate findings of fact.” 

Judge Markus also finds that the second problem with the decision is that it did not make adequate findings or give adequate reasons to support a conclusion that the interactions which the Appellant had, whether at the pubs, chip shop, or with the various professionals who she saw, amounted to engagement with others for the purposes of activity 9:

“The tribunal made no findings of fact as to the nature or quality of the Appellant’s interactions with other people.  As I have said, her case was that she did not engage with people when at the pubs. It is possible that she may have had little if any engagement with the bar staff in the pubs, for instance if she always had the same drinks.  Similarly in relation to the chip shop staff.  Whether the Appellant’s involvement with professionals satisfied the definition was a question of fact for the tribunal to determine, but it did not do so.

She adds that it is possible or even likely that many or even all of the individuals with whom the Appellant interacted were known to her:

“There is no indication in the regulations that the term “engage socially” is limited to engagement with people who a claimant knows. Indeed the use of the word “others” in the definition of “engage socially”, which is unqualified, strongly suggests that it is not so limited.

Moreover, the requirement to be able to establish relationships suggests that the activity is not limited to considering engagement with those known to a claimant. The tribunal did not address whether the appellant regularly attending the same pubs and chip shop, or meeting with a limited range of professionals, evidenced her ability to engage with people generally.” 

As a result, Judge Markus sets aside the tribunal’s decision and remits the appeal for rehearing.

CPIP/2723/2016: Whether dietary requirements of claimant are relevant to ability to prepare and cook a simple meal

Upper Tribunal Judge Wright 

The key focus on this appeal is on activity 1 – “preparing food” - in Part

2 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (“the PIP Regs”). The issue on the appeal was to what extent, if any, preparing the “right” or “dietary appropriate” food falls to be considered under activity 1.

In considering this issue, Judge Wright says that broadly speaking the tasks or mental and physical processes involved in the activity of “preparing food” cover the following: making food ready for eating or cooking using fresh ingredients, and heating at or above waist height a one course meal for one using fresh ingredients.

It is the carrying out of those tasks or processes he says, which has to be done safely and to an acceptable standard:

“In other words, it is the task of cooking in the sense of heating food at or above waist height that needs to done safely and to an acceptable standard.

That does not, it seems to me, put any focus on the dietary content of that which is being cooked, beyond the need for the use of fresh ingredients.  Likewise, it is the physical and mental processes needed to be able make a one-course meal for one using fresh ingredients ready for cooking (or eating) which need to be done safely and to an acceptable standard. That will involve assessing the tasks needed to be able to prepare a simple meal for cooking. Those tasks I can readily see will include opening packaging, lifting and carrying, washing food, and peeling, chopping and cutting up the (fresh) foodstuffs.

 However, beyond these tasks associated with making a simple meal using fresh ingredients, I do not see where the dietary content of that which is being prepared or cooked falls to be taken into account. 

The statutory language of “a simple meal” and “a cooked one-course meal for one”, as opposed to “a cooked one-course meal for the claimant”  or “a suitable meal”,  as well as that statutory language only referring to the content of that which is being prepared of cooked in terms of “fresh ingredients”, in my judgment points against particular dietary requirements (other than fresh ingredients) falling within the scope of that which falls to be considered under Activity 1 “Preparing food.”              

CPIP/2916/2016: A nebuliser is not an aid or appliance for the purposes of PIP Activity 3

Upper Tribunal Judge: Jacobs 

The claimant had an enlarged heart with atrial fibrillation, chronic obstructive airways disease, and high blood pressure. He used a nebuliser to manage his condition, With an appeal tribunal finding he did not qualify for the daily living component of PIP he appealed to the Upper Tribunal

The claimant’s representative applied for permission on the grounds that a nebuliser was an appliance that administered medication to improve the claimant’s physical function of breathing.

Activity 3b in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 provides:

Managing therapy or monitoring a health condition

b. Needs either-

(i)  to use an aid or appliance to be able to manage medication or monitor a health condition; or 

(ii) supervision, prompting or assistance to be able to manage medication or monitor a health condition.”

Regulation 2 contains a definition of aid or appliance. It:

“(a) means any device which improves, provides or replaces C’s impaired physical or mental function; and (b) includes a prosthesis.”

In considering whether a nebuliser is an aid or appliance for the purposes of Activity 3b, Upper Tribunal Judge Jacobs says:

Activity 3b distinguishes between the aid or appliance and the medication. The former must be needed to be able to manage the latter. So the medication that is delivered by the nebuliser cannot be an aid or appliance. 2

He then cites his earlier decision in CW v Secretary of State for Work and Pensions [2016] UKUT 0197 (AAC) in which he holds that:

“The 2012 [Welfare Reform] Act defines entitlement by reference to a claimant’s limited ability to carry out daily living activities. The limitation must be caused by the claimant’s physical or mental condition. The activities are set out in Schedule 1 to the 2013 Regulations. Every activity is divided into a series of descriptors each of which carries a number of points. The points scored provide the measure of the limitation on the claimant’s ability to carry out the activity. They depend on the nature of any intervention that the claimant needs in order to carry out the activity.

In the case of aids, the descriptors are always in the form: the claimant ‘Needs to use an aid or appliance to be able to …’ What follows depends on the nature of the activity. Aid or appliance is defined by reference to whether it improves, provides or replaces the claimant’s impaired function, which for convenience I describe as assisting in overcoming the consequences of a function being impaired.

Putting all that together, an aid must help to overcome consequences of a function being impaired that is involved in carrying out an activity and is limited by the claimant’s condition. To satisfy an aid or appliance descriptor, the claimant must need an aid to assist in respect of a function involved in the activity that is impaired.” 

Having analysed the overall scheme of the legislation, Judge Jacobs went on to consider the nature of the connection that had to exist between the use of the aid or appliance and the activity in question:

“In summary, entitlement to a personal independence payment depends on the claimant having a condition that limits their ability to carry out particular activities. The need to use an aid is a measure of the extent of that limitation.

Whether something is an aid depends on whether it assists in overcoming the consequences of a function being impaired in the carrying out of that activity. That function must be one that is required in order to carry out the particular aspect of an activity, not merely one of a range of functions that could be employed.” 

In dismissing the claimant’s appeal, Judge Jacobs says that his representative wrongly based his case on breathing, but that:

“The function being tested by Activity 3b is the management of the medication. The relevant function is not the shortness of breath; that is why he needs the medication. The relevant function has to be found in the management of that medication. 

Some medication can only be delivered by the use of a device. Someone with diabetes may have to use a syringe to deliver their insulin. Their use of the syringe does not indicate that their ability to carry out the daily living activity of managing medication is limited by their physical condition, as required by section 78(1)(a) of the Welfare Reform Act 2012.

What it indicates is that the medication can only be delivered in a particular way. The syringe does not improve, provide or replace any function relevant to the management of the insulin for the purposes of the definition in regulation 2. 

The position is different if the claimant experiences problems with using a syringe. A claimant who has dexterity problems, visual impairment or needle anxiety will need to use one of the devices on the market that assist them by improving or replacing the impaired function that arises from their condition.” 

Judge Jacobs concludes by explaining that there are two ways of looking at the claimant’s use of the nebuliser:

“One way is to see it as just a means of delivering the medication required, just like an inhaler or a syringe. Looking at it in this way, the use of the nebuliser does not indicate any limitation on the claimant’s ability to carry out the activity of managing his medication. So this approach does not work on the legislation.

The claimant’s representative has suggested a different approach. He says that the nebuliser is needed because it delivers the medication as a fine mist that is more effective than an inhaler for someone who cannot take a deep enough breath. This argument founders on the tribunal’s findings. The claimant can and does use an inhaler and he only uses the nebuliser when he is in bed, when he denies being breathless. So this approach does not work on the evidence.”  

CPIP/2621/2016: Need to identify the basis for any supersession and to provide an appropriate explanation for any change in PIP entitlement

Upper Tribunal Judge: Wikeley

In March 2015, the appellant was awarded the standard rate of the daily living component of PIP for the three-year period from February 2014 to February 2017.

This was on the basis (in large part) of a PIP medical assessment report dated February 27, 2015, which led to the award of 8 points for daily living activities.

The PIP decision letter of March 12015 explained that the appellant would be contacted after February 26, 2016 “to make sure you’re receiving the right level of Personal Independence Payment”. The letter also stated that “if anything changes that could affect the amount of Personal Independence Payment you get, you must tell us straightaway”.

Later in 2105 the appellant was advised by his doctor that his condition had got worse and he rang the DWP to say his circumstances had changed.

In September 2015, the he completed a further PIP questionnaire and in. October 15, 2015, well ahead of the Department’s planned review, he had another PIP medical assessment.

In November 2015, he was sent a further decision letter, saying that he now scored nil points for both daily living and mobility and so he no longer qualified for PIP as from October 2015.

Following an unsuccessful mandatory reconsideration, a First Tier Tribunal upheld the DWP’s decision.

The Secretary of State supported the appellant’s case that the First Tier Tribunal had erred in law on three grounds:

First, the Tribunal failed to establish whether a ground for supersession existed, and moreover failed to explain to the Appellant why his existing award should be removed.

Second, in its statement of reasons the Tribunal referred to its consideration of the Appellant’s situation for the three months before the date of his claim on February 26, 2014 and at least 9 months after. This suggests some confusion as to whether the appeal before the Tribunal was an appeal against the original award decision or the later supersession decision.

Third, and linking back to the first reason, it was not enough simply to assume that the appearance of a new PIP assessment report provided an automatic ground for supersession of the original awarding decision under regulation 26(1) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment Support Allowance (Decisions and Appeals) Regulations 2013 (SI 2013/381; “the D & A Regulations”).

It could not simply be assumed that the second PIP assessment report in some way trumped the first PIP assessment report e.g. by virtue of being more recent. The Appellant as a matter of justice was entitled to an explanation as to why his award had been terminated ahead of time – see R(M) 1/96 and SF v Secretary of State for Work and Pensions (PIP) [2016] UKUT 481 (AAC) at paragraph 21.

Setting aside the First Tier Tribunal’s decision and remitting the appeal for rehearing, Judge Wikeley says:

“The lesson in this case is clear. As Judge Mesher held in KB v Secretary of State for Work and Pensions (PIP), there is in effect a two-stage process.

In short, first, regulation 11 of the PIP Regulations enables the Secretary of State to look into an existing PIP award.

Secondly, however, the Secretary of State will need to show that one of the grounds of supersession is made out and the subsequent decision on entitlement must have regard to all the evidence.”

CPIP/3126/2016: PIP: alcoholism and factors to consider in assessment of descriptors

Upper Tribunal Judge: Hemingway

This appeal concerns the way in which claimants with alcohol dependency are to be assessed for possible entitlement to PIP.  

When claiming PIP, the claimant listed his health problems as epilepsy, severe back pain, severe leg cramps, muscular wastage and loss of weight. His GP also said that he was “chronically disabled due to a history of persistent alcoholism”. 

Around the date of the decision under appeal, he said he would have been drinking half a bottle of vodka and five cans and would drink “first thing in morning”. 

A First-Tier Tribunal dismissed his appeal against a decision to refuse him PIP, awarding him 2 points under daily living descriptor 6b because it thought he would need an aid or appliance to be able to dress or undress. 

In its statement of reasons, while the Tribunal accepted that the claimant was alcohol dependent it found that alcohol was not having an impact upon his functioning but not why.

Judge Hemingway granted the claimant leave to appeal to the Upper Tribunal on the grounds that the First-tier Tribunal might have erred:

  • having concluded that the claimant was dependent upon alcohol, in failing to make a clear finding as to whether it regarded alcohol dependency as being a “physical or mental condition”;
  • in failing to consider whether any intoxication in consequence upon the alcohol dependency led to an inability, without prompting, assistance or supervision, to perform relevant tasks during a day or a part of a day;
  • in failing to consider whether intoxication might lead to an inability to perform relevant tasks safely, to an acceptable standard, repeatedly and within a reasonable time period; and
  • in failing to make sufficient findings regarding the impact of the alcohol dependency at all. 

In considering the appeal, Judge Hemingway cites previous relevant case law, including the following:

“In R(DLA) 6/06, a decision made in the context of DLA by a Tribunal of Social Security Commissioners it was decided, amongst other things, that whilst the transient and immediate effects consequent upon a person choosing to consume too much alcohol ought not to be taken into account in determining entitlement. That is because a person exercising such a choice could reasonably be expected to avoid any need for attention or supervision by controlling alcohol consumption. But, alcohol dependency is a medical condition and a person who cannot realistically stop consuming alcohol to excess because of a medical condition could reasonably be said to be suffering from a disability and to require attention, supervision or other help contemplated by legislation relating to that particular benefit.” 

The Secretary of State submitted to Judge Hemingway that this approach should also be adopted for PIP.

In setting aside the tribunal’s decision and remitting the appeal for rehearing, Judge Hemingway highlights points for the new tribunal to consider.

He begins:

“Of course, it does not follow that merely because a claimant is dependent upon alcohol and therefore has a “mental condition”, that that claimant will be unable to perform any of the various tasks or functions relevant to PIP.  As was mentioned in R(DLA) 6/06, for example, there is the concept of the “functioning alcoholic”, who might be dependent yet still hold down a job.  Such a person might not meet the point scoring requirements under PIP even for a part of any day.  Matters will vary from one individual to another and careful fact-finding on the part of the new tribunal will be necessary. There is then Mr Whitaker’s additional point regarding TR, which he makes in the context of guidance which might be given to the new tribunal upon remittal. As I understand it, he is not challenging the correctness of the general approach taken in TR but is arguing that the approach has to be refined, in the manner he suggests, in certain substance abuse cases."    

He then continues:

“I would accept that … an alcoholic claimant who only becomes significantly intoxicated at the very end of a day will have had, by that time, an opportunity to perform many of the PIP functions and will, in all probability have actually done so.

So, to stay with the example of preparing and cooking food, such a claimant might have prepared and cooked as many meals as he reasonably required at appropriate and reasonable stages of the day.  In such circumstances, an inability to prepare and cook food during the closing moments of a day in circumstances where, in any event, that claimant would not wish to or need to do so would not lead to the scoring of points. 

The position might be different though with respect to such as toileting and undressing, which it might reasonably be thought would be performed at the very end of a claimant’s active day but it would, I suppose, take an unusual degree of inebriation to render an otherwise healthy person incapable of attending to those sorts of tasks for himself purely on account of that inebriation. 

So, in appropriate cases, findings may have to be made as to whether the effects of intoxication cause such significant impairment as to render the claimant incapable of fulfilling any relevant tasks or functions at all (and if not the process may stop there); when if there is such impairment it would typically take hold during a day; which functions would be impaired; which activities and descriptors would be in issue; and whether any limited period of incapability through intoxication would properly lead to a conclusion that that incapacity is capable of having a tangible impact upon the claimant’s activity and function during a day.”

CPIP/3272/2016: Need to give reasons in PIP conversion cases if PIP decision appears inconsistent with DLA decision

Upper Tribunal Judge: Ward

The claimant had been in receipt of DLA, virtually since birth.  This most recently was at the higher rate of the mobility component and the middle rate of the care component. 

After being asked to make a claim for PIP in  March 2016, a decision was taken awarding her 6 points for daily living (because she needed an aid or appliance to prepare food, to wash or bathe and to dress or undress) and 0 points for mobility. 

On her appeal to the First Tier Tribunal (FtT), she was awarded only 4 points (aid or appliance to dress or undress and  prompting to engage with other people face to face.) The FtT found the claimant not to be a reliable witness and took the view that she had overstated the effect on her of the illnesses which it was acknowledged that she had.

The claimant appealed, submitting that:

“I have been in receipt [of] DLA for approximately 23 years, but the tribunal’s decision on my PIP award does not give a reasonable explanation [of] why it departed from all those previous decisions”

She also said that the tribunal’s view of her evidence “does not make sense, in view of the fact that for 23 years, the DWP awarded me benefits for my disabilities.”

The Secretary of State submitted to Judge Ward that the FtT  “ had plenty of evidence before it and, now that the evidence has been obtained, it is evident that it dates from 2010 and is of little value”

Also that whilst it has been established by a line of recent Upper Tribunal cases that the duty in R(M)1/96 applies in cases where the previous award was also a PIP award, it cannot apply where the previous award was a DLA award:

“The principle of R(M)1/96 is that the claimant should be informed of why an award of benefit has been reduced, however, when someone transfers from DLA to PIP it is no longer the same benefit. Whatever occurs with the PIP decision it bears no specific relation to the DLA decision as they have completely different criteria. As such, the R(M)1/96 obligations should not apply in “transfer” cases, and the tribunal did not err in not making reference to it.” 

In response, Judge Ward says that:

“Where a benefit is changed, such as from incapacity benefit to employment and support allowance or, as in this case, from DLA to PIP, in my view for the reasons below it is not enough on the one hand to point to the law having changed and to claim that as a result an earlier decision is of no consequence and need not be addressed. 

However, nor is it enough to say, in effect, that a claimant was awarded the benefit intended for e.g. (as here) people with disabilities under a predecessor benefit and so any decision that s/he does not qualify under the successor benefit must necessarily be inconsistent, for there will be many cases when the predecessor benefit is based on an entirely different approach. 

What is required on the part of the FtT is a degree of analysis as to the potential for a genuine inconsistency.”

Judge Ward then gives some examples of possible areas of “overlap” between DLA and PIP. Commenting that the ability to walk up to 50 metres is often seen as the borderline between not qualifying for the higher mobility component of PIP he says:

“The distances set by the PIP descriptors are such that a person who can stand and move unaided more than 20 metres but no more than 50 metres will score 8 points, enough for the standard rate of the mobility component. 

Bearing in mind the benchmark [of 50 meters], a person who had previously qualified for HRMC and whose condition had remained the same might feel some surprise at being told that s/he did not qualify for 8 points for fulfilling mobility descriptor 2c.”

Another example he says is that the lower rate of DLA mobility component was awarded on the basis that a claimant:

“is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty of walking out of doors without guidance or supervision most of the time.”

He says that:

“There is an obvious potential for overlap with PIP mobility descriptor 1d which (in the form in which it stood at the time of the decision under appeal) was applicable where a claimant “cannot follow the route of an unfamiliar journey without another person…”, …  A person who had previously qualified for LRMC might understandably feel surprised if told that s/he did not now meet that descriptor.  I do not exclude that there might be an explanation, but if there is one, it should be provided to the extent that R(M)1/96 requires.”

Reviewing how the tribunal in this case approached explaining its decision, Judge Ward says that:

“… it is not enough on the one hand to point to the law having changed and to claim that as a result an earlier decision is of no consequence and need not be addressed.

However, nor is it enough to say, in effect, that a claimant was awarded the benefit intended for e.g. (as here) people with disabilities under a predecessor benefit and so any decision that s/he does not qualify under the successor benefit must necessarily be inconsistent, for there will be many cases when the predecessor benefit is based on an entirely different approach.

He adds that:

“‘I am not intending to set down a rule of law beyond that where the conditions on which a previous award of a different benefit was made are reasonably capable of being material to whether the conditions for the award of a subsequent benefit are met, where there is an apparently divergent decision on the subsequent benefit, R(M)1/96 should be applied.”

Holding that Accordingly, that the principle in R(M) 1/96 applied in this case, Judge Ward finds that so that the tribunal's reasons were inadequate and sets its decision aside.

CPIP/3404/2016: Assistance with catheterisation is not ‘therapy’ for purposes of Activity 3

Upper Tribunal Judge: Bano 

Under paragraph 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (the PIP Regulations), “manage incontinence” means “manage involuntary evacuation of the bowel or bladder, including use a collecting device or self-catheterisation, and clean oneself afterwards.” 

In this case, the tribunal applied descriptor 5(b) (needs to use an aid or appliance to be able to manage toilet needs or incontinence on the basis that the claimant needed to use a catheter, but did not apply descriptor 5(d) (needs assistance to be able to manage toilet needs) because they did not accept that the claimant needed her partner to help her with catheterisation.

Under paragraph 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (the PIP Regulations), “manage incontinence” means “manage involuntary evacuation of the bowel or bladder, including use a collecting device or self-catheterisation, and clean oneself afterwards.” 

The tribunal applied descriptor 5(b) (needs to use an aid or appliance to be able to manage toilet needs or incontinence on the basis that the claimant needed to use a catheter, but did not apply descriptor 5(d) (needs assistance to be able to manage toilet needs) because they did not accept that the claimant needed her partner to help her with catheterisation.

The tribunal also considered whether the claimant’s needs in respect of catheterisation qualified her for points under Activity 3 (managing therapy or monitoring a health condition).

“Therapy” is defined in paragraph 1 of Schedule 1 to the PIP Regulations as meaning:

 “therapy to be undertaken at home which is prescribed or recommended by a-

(a)registered-

(i)   doctor;

(ii)  nurse;

(iii) pharmacist; or

(b)heath professional regulated by the Health Professions Council”

In considering if the tribunal erred, Judge Bano reasons that the specific provision made by paragraph 1 of Schedule 1 to the PIP Regulations for the management of incontinence to include self-catheterisation for the purposes of Activity 5 indicates that catheterisation should not also count as ‘therapy’ for the purposes of Activity 3: 

“I take the term ‘self-catheterisation’ in the definition in paragraph 1 of Schedule 1 to the PIP Regulations to refer to the type of catheterisation device used by a claimant, (i.e. as excluding an implanted device), rather than as requiring a catheter to be self-administered; since otherwise the definition of ‘manage incontinence’ as  including the use of a catheter would be ineffective in the case of both descriptor 5(e) (needs assistance to be able to manage incontinence of both bladder or bowel) and descriptor 5(f) (needs assistance to be able to manage incontinence of both bladder and bowel). 

As Judge Williams held in MF v Secretary of State for Work and Pensions [2016] AACR 20, [2015] UKUT 554 (AAC), there is no rule that because an individual’s problems fall to be assessed as creating limits within one activity, they cannot also be assessed as creating limits within another activity …

However, as Judge Gamble held in CSPIP/386/2015, as a matter of statutory construction, a provision which specifically provides for a situation may prevent a provision expressed in more general terms from applying to the same situation. “

Judge Gamble concludes:

“In my judgment, that well-established principle applies with perhaps even greater force where, as in this case, there is no indication in the statutory scheme that a claimant should benefit twice over from the same condition.  Activity 5 represents an attempt to calibrate toilet needs and problems resulting from incontinence in terms of their severity, and I consider that that intention may be undermined if some situations which are specifically provided for in Activity 5 are also held to fall within the more general provisions of Activity 3.  There may be situations in which assisting a person with catheterisation may form part of treatment which amounts to therapy for the purposes of Activity 3, but I do not consider that by itself assisting a person to catheterise falls within the scope of that Activity.”

CPIP/3622/2016: Limits of tribunal’s inquisitorial role when assessing prescribed medication/ Assessment of to “engage socially” / need to consider the reasonable wishes of claimant to “move around”

Upper Tribunal Judge: Gray

Assessing prescribe medication

The appellant's rheumatologist had made a report that said "she has been tried on numerous medications in the past which have been discontinued either because of adverse effects or lack of efficiency, and she is presently taking hydroxychloroquine 200 mg daily, prednisolone 5 mg daily and in addition dermotave ointment".

However, the First-Tier Tribunal (FTT) found that the appellant’s “functional ability might be improved by more regular and better pain relief."  It awarded 2 points for activity 1b, the need and aid or appliance, rather than the personal assistance which was contended for.  A similar approach was taken to activity 6 dressing and undressing; the finding being qualified by the phrase "especially given the availability of better pain relief".

Judge Gray holds that in doing so the FTT was in error:

“Whilst the tribunal has the function to enquire, there are certain clinical matters which should be respected.  In particular, in this case there was the evidence of the consultant that a variety of medication had been tried but was unsuitable.  In that circumstance, it seems to me beyond doubt that the FTT was wrong in basing its assessment upon her being able to take additional medication to improve her function.”  

He adds that in any event a tribunal should be highly circumspect in such an approach:

“It is one thing to infer the severity of a condition, for example, from the level of medication or a failure to refer or a discharge from specialist treatment, and very properly that inference may bear upon the expected level of functional disability. 

It is quite another where there is evidence of treatment and the reasons for it, for the tribunal to go behind the clinical judgement of those treating the appellant or impute treatment that is not being given.” 

Engaging with other people face-to-face (Activity 9)

the appellant's evidence was that whereas she did engage with family and close friends face to face, she found it difficult to mix with other people, and in particular feels uncomfortable to be with new people due to the lesions and scars on her face. 

The FTT reasoned, following observations as to her appearing to engage satisfactorily with health professionals and with the tribunal, that she would be able to engage with others “whenever reasonably necessary". 

However, Judge Grey hold that this is the wrong test.  

He holds that the definition of “engage socially” informs activity 9 (SF-v-SSWP (PIP) [2016] UKUT 543 (AAC)). It includes the ability to establish relationships. The ability, therefore, to engage with people known to her (family and existing friends) or with whom she needs to engage for a specific and limited purpose (health professionals or the tribunal) is insufficient to engage the baseline (zero scoring) descriptor.

Further, there is no legal basis for limiting the assessment of her ability to engage with others face to face to such engagement as is reasonably necessary. The purpose of PIP, like DLA before it, is to assist those with disabilities to live, as far as possible, the life that they would wish to live, and any mitigating behaviour adopted because of that disability must be disregarded: EG-v-SSWP (PIP) [2017] UKUT 101 (AAC)).

Moving Around (Mobility Activity 2)

Finally, with regards to Mobility Activity 2 the FTT restricted its consideration of her need to walk to that ‘reasonably required’,

However, Judge Gray holds that to the extent that was interpreted to exclude the appellant’s choice as to how often she would ‘move around’ and replace that choice with an objective test of how often she needed to do so, it was wrong.

"The tribunal found that the appellant was "reasonably likely to be able to walk 50 metres but not more than 200 metres safely, as often as reasonably required, to a reasonable standard and in a reasonable timescale."  

It seems likely that this phraseology was used in recognition of the test set out under regulation 4, and the definitions at 4(4) of the terms used in 4(2A), in particular the definition of "repeatedly" in 4 (2A) (c), which appears at 4 (4) (b):

(b)"repeatedly" means as often as the activity being assessed is reasonably required to be completed.

To the extent that this definition was interpreted to exclude the appellant's choice as to how often she would ‘move around’ (in the words of the schedule; I might use the expression ‘walk’), and replace that choice with an objective test of how often she needed to do so, that was wrong. 

… If the tribunal looked at the concept ‘repeatedly’ on one walk to a local shop and then back home each day, which an appellant could accomplish at one stretch, perhaps because it felt that she would be able to pick up what she needed on such an outing, that would be to assess her on an overly limited basis: she may wish to walk on to the park, or meet a friend, and why should she not?

He adds that:

“...  a tribunal does not need to accept the genuineness of an extreme routine put forward in an apparent attempt to "generate" points, but if it is accepted that somebody would like to walk further or more frequently and such activity is not inherently unreasonable then that wish should be factored in to the calculation of how often the activity being assessed is reasonably required to be completed.  To address this matter otherwise would be to calculate entitlement upon the tribunal’s view of what the disabled person's activities should be.”

So Judge Gray finds that unless it is inherently unreasonable an appellant’s choice should be respected. In doing so he cites the Court’s ruling in Secretary of State v Fairey (R(A) 2/98) that the yardstick of a “normal life” is important and that this t is a better approach than adopting the test as to whether something is “essential” or “desirable”.

CPIP/3730/2016: Need to wear clean clothing / young person’s ability to make budgeting decisions

Upper Tribunal Judge: Hemingway

The claimant was 16 at his refused claim for PIP and had ADHD.

The tribunal decided that 6 points were scored under the activities and descriptors relevant to the daily living component of PIP and no points at all under those relevant to mobility.The points scored were under descriptors linked to the activities of “Preparing food”; “Washing and bathing” and “Engaging with other people face to face”, 2 points being awarded for each. 

But the tribunal did not award any points under the descriptors linked to the activities of “Dressing and undressing” or “Making budgeting decisions”. 

It said with respect to dressing and undressing:

“At the examination, the appellant told the HCP that he tends to wear clothes that he likes and which are comfortable.  His mother tells him to wear appropriate clothing but he is unconcerned whether colours go together or not.  He can dress his whole body and he would only wear a coat if he thinks it is cold outside.

The HCP reported that the appellant knows how to dress and undress himself.  At the examination he was well kempt, had normal cognition and insight and there were no physical restrictions.  

The tribunal found that the evidence suggested that the appellant can dress and undress unaided.  This was consistent with the appellant’s medical condition and treatment and was accepted by the tribunal.”

With respect to budgeting decisions the tribunal found that the evidence suggested that the appellant can manage complex budgeting decisions unaided:

 “This was consistent with the appellant’s medical condition and treatment and was accepted by the tribunal. The tribunal accepts that as a young man the appellant has yet to experience financial independence.  However, he has no cognitive impairment and he told the tribunal in his oral evidence that he was able to purchase items of food when he was at college, to know how much the items cost and to understand the change that should be received.”

However, in upholding the claimant’s appeal and remitting it for rehearing, Judge Hemingway holds as follows.

If a claimant, in consequence of a physical or mental condition will without intervention select items of clothing which have become malodorous or which it has become unhygienic to continue to wear, he/she may score points under the descriptors linked to activity 6 (dressing and undressing) either because of a need for prompting or assistance to select appropriate clothing or because of an inability to dress to an acceptable standard.

In addition, he finds that it is appropriate to consider a claimant’s ability or otherwise to make complex budgeting decisions under the descriptors linked to activity 10 (Making budgeting decisions) even though that claimant may only be 16 or 17 years old.

A claimant who is impulsive may score points under the descriptors linked to activity 10 even if entirely capable of making all the sorts of decisions set out in the definition of “complex budgeting decisions” within Schedule 1 to the PIP Regulations if he may, nevertheless, then spend money it has been decided to pay bills with on something else.

CPIP/3739/2016: Relevance of an inability to read cooking instructions and use timers

Upper Tribunal Judge: Hemingway

The claimant had learning difficulties which meant he could not read and had difficulty in telling the time.

In relation to his ability to prepare and cook food it was written in his PIP2 form: “I need help reading instructions as I cannot read.  I can be very clumsy so sometimes need to be supervised”. 

A key issue raised by the appeal was whether the ability to read, tell the time and so be able to understand and follow cooking instructions and use such as timers can be taken into account at all in considering whether points should be awarded under PIP Descriptor 1 (Preparing Food).

The Secretary of State submitted that can never be because of the view cooking is a “sensory and instinctive act” - that it is not necessary to have regard to instructions or devices to know when food has been cooked because the person doing the cooking can tell.   

Judge Hemingway agrees that there are several ways a person will be able to tell if food has been properly cooked or has been cooked for an appropriate period, without the use of such as a clock or a timer or without having read some instructions:

 “Many items of food, such as some types of meat and some types of fish, will change colour or appearance during the cooking process and it might be possible to tell, from that alone, whether an item has been cooked sufficiently. 

It might be possible to tell from the smell of the food as it is cooked. It might be possible to tell from inserting a knife into the food.  It might be possible to tell from tasting a very small portion of it.  It seems to me very likely, in general, that at least a combination of all of those and possibly some other obvious steps which I have not thought of, might potentially lead to a properly informed conclusion as to whether an item of food has been properly cooked or not.

Further, whilst a person cooking a particular type of food for the first time may not initially be aware of how long to cook that food for without either a written instruction or recipe or a verbal indication from another person who already knows, it may well be the case that such information, if used once, can then be remembered without further recourse to the same source of information.”

On this basis, he holds that that there will be people who are unable to tell the time, use timers, or read but who will be able to, nevertheless, prepare and cook simple meals to an adequate standard. 

However, he stresses that “the inability to do those things might point to an intellectual deficit of significance which might at least raise the possibility that a person impaired to that extent might not be able to properly use the range of alternative suggestions I have made above regarding how to tell when food has been properly cooked.”

He then adds:

“What these considerations lead to, in my judgment, is a conclusion that it cannot simply be said, one way or the other, that an inability to read or tell the time is or is not relevant to the ability to prepare and cook food.  But it might be.

Everything will turn on the circumstances and particular difficulties of the individual claimant. Where it is asserted by or on behalf of a claimant that there is an inability to cook consequent upon an inability to read or tell the time, careful findings will have to be made as to what can, nevertheless, be achieved given the nature and extent of that claimant’s particular problems.”    

CPIP/3760/2016: Hesitation in selecting appropriate clothing may lead to the award of points under Activity 6 (dressing and undressing)

Upper Tribunal Judge: Hemingway

In this decision, Upper Tribunal Judge Hemingway holds that Hesitation in selecting appropriate clothing may lead the award of points under Activity 6 when used in conjunction with regulation 4 (2A) and 4 (4) of the PIP Regulations so long as the hesitation is as a result of a health condition.

The claimant had health problems which included depression, anxiety, bulimia and irritable bowel syndrome.  She also displayed features of attention deficit hyperactivity disorder, autistic spectrum disorder and obsessive compulsive disorder.  

She explained to the tribunal that she experienced difficulty with the activity of dressing and undressing in that she needed prompting to dress (though she said she could do so when she had to such that she was able to dress for work). 

She said that when she took her son to school she would put a coat on over her night clothes rather than dressing properly.  She also said that she found it difficult to select suitable clothing as a result of her “body issues” which she linked to her bulimia and how she felt about her body in consequence of her suffering from that condition.  

However, the tribunal did not award her points for this, stressing that the claimant was physically, to get dressed and undressed unaided:

“Her issue with dressing is selecting appropriate clothing.  She feels that due to her eating disorder and depression she takes longer than most to choose clothes she feels happy to wear.  This is not the test.  Her difficulties in choosing clothes, whilst accepted, is not so serious that she is unable to leave the house or ever change clothes.  She is able to make a decision eventually.  No points were awarded.”

In holding that the tribunal had erred, Judge Hemingway says that:

“The point is that the difficulties experienced by a claimant, in order to allow that claimant to score points, must be a consequence of a physical or mental condition.  Viewed from that perspective, what is important is not whether the claimant is hesitating over her clothing selections on the basis of appearance but, rather, assuming that she is, whether her hesitation or indecision is a consequence of a health condition.

The tribunal did appear to accept that the claimant would or might take longer to dress than would a person who did not have her health difficulties …

In particular, its observation that with respect to selecting clothes to wear “she is able to make a decision eventually” does seem to point to its having accepted that there was a degree of difficulty of some significance. 

It did seem to contemplate (without making a clear finding on the point) a link that to her eating disorder and depression.  It is possible, though it did not say this, that it also had in mind her assertion that she displayed features of obsessive compulsive disorder. I would stress, though, that I cannot see any evidence that a diagnosis of that condition has been made.”  

Judge Hemingway then explains that:

“The claimant would have scored 2 points had it been found that she satisfied daily living descriptor 6c.  That descriptor has two limbs one of which relates to a need for “prompting or assistance to be able to select appropriate clothing”.  Her ability to address and undress had to be assessed in light of regulation 4(2A) of the Regulations which says that in order to be found capable of carrying out an activity a claimant must be able to perform it “within a reasonable time period” which is then defined in regulation 4(4) as no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity. 

It does seem to me that the tribunal, having seemingly accepted a degree of difficulty with respect to the time it would take the claimant to dress, failed to make findings as to the cause of the difficulty and (in the event of its finding that a health condition was the cause) as to how long it would take her to dress and, in particular, whether she was not able to do so within a “reasonable time period” as defined within regulation 4(4). 

So in setting aside the tribunal’s decision and remitting her appeal for rehearing, Judge Hemingway concludes that the claimant’s:

“… ability to address and undress had to be assessed in light of regulation 4(2A) of the Regulations which says that in order to be found capable of carrying out an activity a claimant must be able to perform it “within a reasonable time period” which is then defined in regulation 4(4) as no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity." 

CPIP/3872/2016: Activity 5 (managing toilet needs): Grab rails are an aid or appliance

Upper Tribunal Judge Ward

In refusing the claimant a renewed PIP award, the First Tier Tribunal held that the earlier award was erroneous:

“The award of 2 points under the descriptor relating to the management of toilet needs was mistaken. The appellant has never claimed that she was or is unable to use the toilet without an aid or appliance. The occupational therapy assessment undertaken did not apparently recommend the installation of a raised toilet set or other special arrangements to enable the appellant to use the toilet without assistance.”

However, Judge Ward gave the claimant permission to appeal, pointing out that the sort of examples of aids and appliances given as illustrations at Q7a of the PIP claim form (to which the claimant had answered “No”) are “things like commodes, raised toilet seats, bottom wipers, bidets, incontinence pads or collective [“collecting” may have been intended] devices such as bottles, buckets or catheters”. 

I suggested that these provided no great encouragement to the reader to consider that grab rails were covered, although they undoubtedly would constitute an aid or appliance, and drew attention to what the claimant had apparently told the HCP at p51, quoted above.  On the basis of the latter it could not be said that the claimant had never claimed to use an aid or appliance.”

Rather than remit the appeal for rehearing, Judge Ward makes an award himself as the sole issue was whether the claimant did indeed need and use grab rails to help her with the toilet at the material time:

“She replied in a short letter explaining that it was the landlord who had put the bath grab rails in, but her son had helped her put in rails for the toilet in 2014 because of her arthritis.  In the light of this evidence, the Secretary of State’s representative was content to accept that the decision should be remade as set out above.”

CPIP/48/2017: Whether disability arising after the award of DLA meets the three-month retrospective ‘required period’ condition

Upper Tribunal Judge: Farbey

This appeal concerns the operation of regulation 23 of PIP (Transitional Provisions) Regulations 2013. These regulations form the transitional legal framework that enables the Secretary of State to carry over DLA claimants from the former statutory scheme for DLA to the new statutory scheme for PIP

Regulation 23(1) provides:

“In applying the required period condition under Part 3 (required period condition) of the PIP Regulations [2013] to a claim by a transfer claimant or by a person to whom paragraph (2) or (3) applies, the claimant shall be regarded as meeting such of the conditions contained in the following provisions of Part 3 (which relate to a claimant's abilities in the past) as are relevant to the claim regardless of whether those conditions have been met -

(a)  in regulation 12 (required period condition: daily living component), paragraph (1)(a) or (2)(a),

(b)  in regulation 13 (required period condition: mobility component), paragraph (1)(a) or (2)(a). “

The claimant’s pre-existing urinary incontinence had been exacerbated following bladder surgery carried out after he had been awarded DLA.

The claimant submitted that regulation 23 applied to his case: that the effects of his bladder surgery need not actually have subsisted for the three-month retrospective period but should be deemed to have done so.  

However, the Secretary of State submitted that the deeming provision applied only in respect of disability existing at the time of the DLA award.  Given that the surgery and its effects have happened after the award of DLA, they could not have founded the DLA award and do not found any rights or benefits under regulation 23.

Judge Farbey holds that the Secretary of State is correct as a person cannot be a ‘DLA entitled person’ under the transitional regulations by reference to disability which did not exist at the date of his or her DLA award. 

She adds:

“A person’s DLA entitlement must be assessed as at the date of the decision on his or her DLA claim in accordance with the legislative provisions governing DLA at the time.  Any condition which was absent at the time or irrelevant under those provisions falls outside the scope of DLA entitlement within the transitional provisions.  

In short, the definition of a DLA entitled person as being a person ‘who is entitled to’ DLA must refer only to entitlement that founded the DLA decision.  Disability which falls outside the grounds of the award of DLA falls to be excluded from DLA entitlement.  It follows that fresh disability cannot contribute to a person’s status as a transfer claimant - which depends on notification as a DLA entitled person.  In so far as regulation 23(1) applies only to transfer claimants, it does not apply to new medical conditions.     

Regulation 23(1) tells the Secretary of State how to assess the claims of existing recipients of DLA in relation to the retrospective period.  It does not enable a claimant with a new disability to argue that the disability should be treated as three months old even if it is not.”   

However, Judge Farbey holds that the tribunal failed to deal with regulation 33 which enables the Secretary of State to make an advance award of PIP.  Under regulation 33, a person may qualify for an advance award by scoring points for the three-month period after the date on which the Secretary of State’s decision was made:

“The letter of 26 May 2016 relates to a clinic appointment on 9 May 2016.  It is plain from the letter that the adverse effects of the March surgery had started by the date of the clinic appointment which was on any view of the chronology less than three months after the date of the decision.  The tribunal should therefore have considered whether the claimant scored sufficient points for PIP to have qualified under regulation 33.”   

She therefore sets aside the tribunals’ decision and remits the claimant’s appeal for rehearing.

Therefore, I set aside the tribunal’s decision because it is inadequately reasoned and contains inadequate findings of fact in relation to regulation 33.  There are other grounds of appeal but, as I am setting aside the tribunal’s decision on this ground, I do not need to deal with any other error on a point of law that the tribunal may have made.  

CPIP/387/2017: Use of incontinence pads on a reasonably required precautionary basis

Upper Tribunal Judge: Mesher    

 This appeal concerns activity 5 (managing toilet needs or incontinence) for needing to use an aid or appliance to be able to manage toilet needs or incontinence.

In dismissing the Secretary of State’s appeal, Judge Mesher holds that the use of incontinence pads on a reasonably required precautionary basis for more than 50% of the days in a period would satisfy the test in regulation 7 of the PIP Regulations although actual incontinence occurred on less than 50% of the days.

Regulation 7 provides that:

“ (1) The descriptor which applies to C in relation to each activity in the tables referred to in regulations 5 and 6 is -

(a)where one descriptor is satisfied on over 50% of the days of the required period, that descriptor;

(b)where two or more descriptors are each satisfied on over 50% of the days of the required period, the descriptor which scores the higher or highest number of points; and

(c)where no descriptor is satisfied on over 50% of the days of the required period but two or more descriptors (other than a descriptor which scores 0 points) are satisfied for periods which, when added together, amount to over 50% of the days of the required period–

(i)the descriptor which is satisfied for the greater or greatest proportion of days of the required period; or,

(ii)where both or all descriptors are satisfied for the same proportion, the descriptor which scores the higher or highest number of points.”

Highlighting the three-judge panel Upper Tribunal decision in CPIP/1599/2016, Judge Mesher holds that:

“The test is whether on the majority of days in the period to be looked at the claimant reasonably required the use of an aid or appliance (in this case incontinence pads) on a precautionary basis in order, in the Secretary of State’s words, to cope with the difficulties of involuntary evacuations of the bowel occurring a couple of times a week.

The test is not whether those evacuations occur on more than 50% of the days in the period or whether the pads would actually absorb leakage on more than 50% of those days.

Regulation 7 refers to whether a descriptor is satisfied on over 50% of the days in the period. Descriptor 5b can be satisfied in its terms by a reasonable need to use an aid or appliance on a precautionary basis on many more days than those on which incontinence actually occurs.”

CPIP/663/2017: Necessary components of a statement of reasons and the assessment of evidence / functional difficulties must arise from a physical or mental condition not childcare responsibilities                                     

Upper Tribunal Judge: Gray                        

The appellant suffered from both physical problems and mental health difficulties. Following a First-Tier Tribunal upholding the decision not to award her PIP, she appealed to the Upper Tribunal.

Judge Grey agrees with the Secretary of State that the tribunal did not err in its assessment of the appellant’s cooking abilities.

In doing so, she cites Judge Levenson’s unpublished decision in CPIP/1532/2015 that establishes the principle that the test is as to a person’s physical and mental capacity to cook, whether they actually do so.   

“The fact that someone does not cook may be due to preference or habitual family arrangements, or it may be indicative of real problems in the task. If somebody says that they do not cook because it would not be safe for them to do so that assertion must be considered in the light of the evidence as to the extent of their physical or mental health problems, and that argument is put forward here.

However, it is also said that the appellant cannot cook because she needs to do something else, (look after her son) and that is not relevant in a calibration of any difficulties that she might have if she were to cook.  

Any difficulties in cooking because of the presence of a small child must be ignored because the test is not concerned with the practicalities of preparing and cooking food, but with the capability of so doing, and, to be relevant, any difficulties must arise out of a physical or mental condition. “ 

However, Judge Gray sets aside the tribunal’ decision because “its findings and explanations for them are wholly inadequate.”  

For example, while the tribunal implicitly accepted that the appellant’s evidence that she needed to use special equipment, it did not deal with her contention that she could not cook because she lacked concentration and could not safely deal with pans on the hob. That level of difficulty, if accepted, would suggest a higher point scoring descriptor, so it was important for the tribunal to deal with the assertion.

In dealing with Activity 9 (engaging with others face to face), the appellant’s account was set out, which was essentially that she did not go out socially, because she needed to keep up her energy for the needs of her son who had ADHD and an autistic spectrum disorder.

The part of the healthcare professional’s report dealing with activity 9 is then summarised as saying that the appellant’s reported difficulty engaging with others was inconsistent with the functional history which showed that she went shopping, could ask for help if she needed it and attended GP appointments alone. The statement of reasons then goes on to say that the tribunal, having considered all relevant evidence, was satisfied that she needed prompting to be able to engage with others and accordingly awarded two points under activity 9b.  

In criticising this, Judge Gray says:

“A recitation of the evidence followed by an indication of how many points are awarded is neither a finding of fact nor a reason for the conclusion arrived at.  A finding of fact can only result from subjecting the evidence to analysis and reasoning; it is not sufficient to set out the evidence and say that having considered it the tribunal was satisfied that the terms of a particular descriptor was met; the ‘because’ element is lacking. That element should explain what the tribunal accepted or rejected and why.  

In the activity 9 example the First-Tier Tribunal needed to engage with the conflict in the two contrasting evidential positions. It needed to resolve that conflict, using perhaps evidence of ability or difficulty in other spheres and evidence as to the extent of the treatment the appellant was receiving to help it decide upon the extent of any likely functional difficulty.

It was necessary to consider whether the appellant’s stated lack of social engagement since moving to the area a couple of years previously was due to her choice in prioritising the needs of her son; that is to say would she like to go out socially but could not due to his needs, or did she not socialise due to her difficulties, physical, mental or a combination of the two.  If the latter, what level of assistance did she require within the terms of activity 9 in order to engage socially, using case law where necessary as to the interpretation of that activity.”   

Judge Gray concludes by holding that:

“The tribunal’s task is to make an assessment of the probable level of the appellant’s functional abilities within the activities of the schedule to the regulations based upon the entirety of the evidence.  Whilst bearing in mind that people react differently to ill-health and to medication intended to be of benefit, it will assess the probative value of the different parts of the evidence using its expert knowledge as to what level of functional disability is likely given the particular diagnoses and the level of treatment, as well as other evidential tools such as plausibility, inconsistency and its own common sense.  In setting out its findings it is necessary to indicate what evidence is accepted or the extent to which certain evidence is accepted, and the reasons for the conclusions arrived at.” 

CPIP/838/2017: Absence of complaint about health care professional / evidence needed to challenge a health care professional need not be medical

Upper Tribunal Judge: Gray                                      

The claimant’s mother took issue with the report of the healthcare professional (the HCP report).

In considering this, the tribunal found that “no complaint has been lodged by mother or indeed by the appellant about the HCP, her conduct, or the accuracy of the report. No GPs report has been produced challenging the accuracy of the content of the HCP assessment.”

In holding this to be an error, Judge Gray cites her decision in KN-v-Secretary of State for Work and Pensions [2016] UKUT 521 (AAC). In accepting the appellant’s representative’s point that for many benefit claimants the appeal process is difficult without compounding it with a formal complaint, she said:

“There is no legal requirement for a complaint to be made in tandem with an appeal, and it seems to me wholly wrong to use the absence of such a complaint as a significant credibility pointer.” 

Judge Gray also holds that the tribunal erred in finding that there was insufficient medical evidence to challenge the report of the health care professional.

“Although the statement of reasons says at that the tribunal was required to consider all of the evidence (my emphasis) at it refers to the tribunal preferring the report of the healthcare professional “as opposed to the remaining medical evidence for the following reasons” which are then given. There is no reference there to the evidence of the mother, and the medical and ‘other’ evidence is separated elsewhere in the statement. Overall the language suggests that the First Tier Tribunal did not look at the totality of the evidence and evaluate its different strands within the context of the whole but made a division between medical evidence and other evidence (the other evidence being the mother’s account of [her daughter’s] day-to-day needs).” 

Again, she cites her previous decision in MW v Secretary of State for Work and Pensions [2016] UKUT 076 (AAC):

“What is impermissible is a blanket assumption that expert evidence will always, or will generally, be of more value than the lay person’s account. The decision of Upper Tribunal Judge Ovey, CW v Secretary of State for Work and Pensions [2011] UKUT 386 (AAC) contains useful comments on the matter: 

In my judgment, the Secretary of State rightly regards CIB/16401/1996 as containing useful guidance.  That decision makes clear that there is no general rule that where there is a difference between the evidence of a medical professional producing reports for the use of the Department of Work and Pensions in making decisions as to social security benefits and the evidence of a claimant, the evidence of the medical professional should be preferred.  It may be a legitimate conclusion in a particular case that a medical professional’s view is to be preferred because it is more objective and independent, but that is a conclusion only to be reached after a consideration of the particular evidence, and the claimant should not be left in the dark as to what the tribunal made of his or her evidence:  that is, whether it was honest but inaccurate, was an unconscious exaggeration or was a deliberate exaggeration.”

CPIP/973/2017: When tribunal should seek evidence relating to DLA claim   

Upper Tribunal Judge: Markus

The Appellant had been in receipt of the middle rate of the care component and the higher rate of the mobility component of DLA. When a First Tier Tribunal awarded her the standard rate of both PIP components she appealed further.

Judge Markus first explains why he gave permission to appeal:

“I noted that the criteria for DLA and PIP are different but that in some cases the basis on which the mobility component of DLA is awarded might indicate an award of PIP at the enhanced rate.

The Appellant had disputed the HCP’s assessment prepared for her PIP claim, there was no other evidence as to her mobility difficulties but there was no suggestion that the Appellant’s condition had improved since the last DLA award.

Although not conclusive as to PIP entitlement because it did not address the same issues or the same conditions of entitlement, the evidence relating to the DLA award may have enabled the tribunal to scrutinise the HCP assessment prepared for PIP purposes.

… it was arguable that the First Tier Tribunal should at least have considered whether to request the DLA information from the Secretary of State and, in the circumstances of this case, it may have been an error not to request it.” 

In considering the appeal, Judge Markus asked the following questions of the Secretary of State:

a)   Where a claimant’s award of DLA is terminated following a determination of PIP entitlement, are the papers relating to the DLA award retained and if so for how long?

b)   Is there a Departmental policy or practice relating to retention/destruction of DLA papers or is it a matter for each office?

c)   If DLA papers are destroyed, when does this occur?

d)   In what circumstances does the DWP disclose papers relating to an award of DLA to the First-tier Tribunal?

In his written response, the Secretary of State supported the appeal and referred to the guidance in AP v SSWP (PIP) [2016] UKUT 0416 (AAC) and submitted that in the circumstances of this case the FTT was in error for failing to consider whether there was other evidence which may have assisted or to consider the relevance of the previous DLA award.    

The Secretary of State has also provided the following answers to the Judge’s questions:

“a.  PIP Reassessment Claimants are asked at outset if they want the DWP to include their DLA medical evidence when considering the PIP claim. Where DLA medical evidence is used, then that evidence will be attached to the claimants PIP file and marked as supporting that PIP decision. This will be kept for at least 2 years if the PIP decision was a disallowance. Or longer if the decision was an award.  If there has been no request from the claimant to use their DLA medical evidence for their PIP claim then the old DLA evidence will be destroyed 14 months after the DLA decision has terminated. The PIP retention period is 24 months if the evidence is no longer classified as supporting. Once the DLA evidence has been included as part of the PIP claim it will have the same retention as any other PIP supporting document.

b. There is a departmental policy regarding document and data retention. However, benefits decide what fits their circumstances as documents can be retained for longer/shorter if there is a valid business need e.g. DLA is roughly 14 months for documents but PIP is 24 months due to the potential linking provision of Regulation 15 of the Social Security (Personal Independence Payment) Regulations 2013, but is consistent within each benefit.

c. Please refer to answer a. Normally the DLA File is destroyed 14 months after it ceases to support an existing award.  This period starts from 7 months after termination of award.  The computer record will keep for 7 months and then close. The paper file will then be destroyed 14 months after that. However, if any of that DLA evidence has been considered within the PIP claim then that evidence will support the PIP decision and it will be kept for as long as the PIP decision is current and 2 years after the PIP is no longer current.

d. If the DLA medical evidence has been used to consider the PIP claim then this will be included in the evidence bundle sent to the tribunal.”

Judge Markus says that It is unfortunate that the Secretary of State’s submission did not explain what DLA evidence was or is in fact available in this case, nor how the above practice and policy was, could or would be applied in the Appellant’s case, adding that:

“There is nothing in the bundle to indicate that the Appellant was asked if she wanted the DLA medical evidence to be included. The claim form does not include any such question and, if it was asked in any other document, one would expect it to have been included with the Secretary of State’s response (Rule 24(4) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008). I do not know if the absence of the DLA evidence in the bundle means that she was given the option but did not ask for the evidence to be included, or that she was not given the option, or that the relevant documentation has simply been omitted.” 

But rather than asking the Secretary of State for this information, Judge Markus decides the appeal to avoid further delay for the Appellant:

As the Secretary of State supported the appeal and requested that the matter is remitted to another First Tier Tribunal for fresh determination this is what Judge Markus rules.

He does add however that:

“For the avoidance of doubt, this does not mean that the First Tier Tribunal was bound to obtain the evidence relating to the previous award of DLA.  If it made a reasonable decision, exercising its discretion judicially, not to obtain the evidence, then that would not be challengeable.”            

CPIP/1127/2017: Activity 9 - meaning of ‘establish relationships’

Upper Tribunal Judge: Jacobs

This case is concerned with activity 9 in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (SI No 377): 

Engaging with other people face to face - Activity 9

a  Can engage with other people unaided. Score 0

b  Needs prompting to be able to engage with other people. - Score 2

c  Needs social support to be able to engage with other people. - Score 4

d  Cannot engage with other people due to such engagement causing either

    (i) overwhelming psychological distress to the claimant; or

    (ii) the claimant to exhibit behaviour which would result in a substantial risk of

    harm to the claimant or another person.  - Score 8

There is a definition of ‘engage socially’ in paragraph 1 of the Schedule

‘engage socially’ means-

(a)      interact with others in a contextually and socially appropriate manner;

(b)      understand body language; and 

(c)       establish relationships;

In particular, the issue in this case is the meaning of ‘establish relationships’. 

Regulation 4(2A) is also relevant:

(2A) Where C’s ability to carry out an activity assessed, C is to be assessed as satisfying a descriptor only if C can do so–

(d)      safely;

(e)      to an acceptable standard;

(f)       repeatedly; and

(g)      within a reasonable time period.

There was a report from a Cognitive Behavioural Therapist from 2007, which described the claimant as experiencing “repetitive thoughts and images of a homosexual nature” causing him to engage “in a range of overt and covert rituals as well as safety behaviours, in order to neutralise these distressing thoughts/images.”

There was also specialist medical evidence that the claimant had obsessive compulsive disorder for over 25 years. 

On appeal, the First-tier Tribunal found that the claimant scored two points for activity 9b and two points for needing prompting or assistance to make complex budgeting decisions, but that was not enough to allow an award.

The presiding judge spent almost two pages explaining the tribunal’s decision on activity 9. She recorded detailed findings about how the claimant managed or avoided contact with men in his daily life. The essence of the tribunal’s reasoning was this:

“The Tribunal considered the extent to which [the claimant] could engage socially with people he did not know. There was nothing to indicate that he could not engage with women, indeed he chose to do so. At the least therefore some of the people that he met were not going to provide a difficulty for him. In respect of the remainder while he was by himself he might find engaging difficult but with someone there to encourage and support there was nothing to indicate that social engagement as a reciprocal exchange (rather than friendship or a longer relationship) would not be possible.” 

The claimant was given permission to appeal to the Upper Tribunal on the ground that the tribunal’s analysis of the evidence might not support its finding that he could establish relationships. 

Judge Jacobs decides that the tribunal did make an error of law by not dealing with head (c) of the definition of ‘engage socially’ and by not appearing to have taken sufficient account of regulation 4(2A), despite setting it out.  He concentrates his analysis on how a tribunal should approach that aspect of engaging with other people face to face. 

Judge Jacobs says that:

“I do not accept that establishing a relationship means no more than ‘the ability to reciprocate exchanges’. There is more to it than that. A brief conversation with a stranger about the weather while waiting for a bus does not involve establishing a relationship in the normal sense of the word. Nor does buying a burger or an ice cream, although both involve reciprocating exchanges. 

Heads (a) and (b) are important parts of establishing relationships, but more is required. Relationships vary in duration (from fleeting to life-long), nature (acquaintance, business, friendship, partnership, sexual) and intensity. Head (c) refers to relationships without qualification. I take that to mean that it is concerned with skills relevant to relationships in general rather than with a particular type of relationship. And the focus is on establishing a relationship rather than nurturing or developing one.  

The claimant is able to establish relationships with women, but that still leaves roughly half the population that cause him a problem. I have not had argument on this, but I consider that difficulties of that magnitude would be sufficient to satisfy the definition.” 

Judge Jacobs explains that he will attempt to list the essential characteristics of a relationship as “not only is that task difficult if not impossible, it is also dangerous”. I doubt that I would have envisaged the facts of this case if I had tried to compile a list. That is why I have not attempted itemise the various skills that are brought to bear in establishing a relationship.

Instead the way he approaches this case – and the approach he would recommend to the First-tier Tribunal – is to begin by asking what it is that the claimant says is preventing or inhibiting establishing relationships.

Assuming that the tribunal accepts the evidence, the next question is whether that forms part of the claimant’s physical or mental condition for the purposes of section 78 of the Welfare Reform Act 2102.

He then sets out below how he approached this case (although It is not binding on the First-tier Tribunal who must make its own independent assessment of the evidence). 

“The claimant has set out vividly how his homosexual thoughts hamper his daily life. I have no hesitation in accepting what he says, supported as it is by the medical evidence. Given that medical evidence, there is no doubt that this is part of the claimant’s mental condition and not merely some personal preference or prejudice.

How, then, does activity 9 apply? The claimant’s difficulties are embedded and have proved intractable to licensed and unlicensed medication, psychotherapy, and surgery. I doubt that they will be overcome by prompting or social support (activity 9b and c).

Either prompting or support may help him to go through the motions of engaging in some form of contact with others, but the way he described his condition suggests that even a small amount of contact causes him distress. Even if that distress does not reach the level of ‘overwhelming psychological distress’, it may still be relevant to regulation 4(2A)(b) in that, from his point of view, he is not doing establishing a relationship to an acceptable standard. That leaves activity 9d. The claimant’s avoidance tactic seems to rule out 9d(ii). What about 9d(i)? It may be that his distress does reach the level of overwhelming psychological distress. He certainly refers to wishing he were dead and his self-imposed isolation may support how he describes his feelings.”

CPIP/1469/2017: Need for tribunal to take a completely fresh look at the facts / need to identify type of aid and appliance that can be used                                

Upper Tribunal Judge: Gray                      

Upper Tribunal Judge Gray says that in dealing PIP activity 2 (taking nutrition) the claimant’s evidence was that she bought chopped vegetables. This seemed to emphasise the need for an explanation of the approach taken in respect of PIP activity 1 (preparing food).

She then outlines that the claimant’s comments were that the statement of reasons was an inadequate explanation as to the chosen descriptor under activity 1:

“The point was made, and I agree with it, that given that the tribunal perceived a need for an aid or appliance, the statement of reasons should have indicated what sort of aid or appliance it had in mind.”

Judge Gray then holds that the wording of the tribunal’s statement of reasons suggests a fundamental misunderstanding as to the role of the tribunal in hearing an appeal and had wrongly adopted a judicial review approach.

After giving examples from the reasons statement, Judge Gray says that:

“The tenor of the standard phrase is that the findings of the Secretary of State should remain unless there was sufficient persuasive evidence to enable contrary findings to be made. That is a fatally flawed approach to what is a hearing de novo, that is to say a completely fresh look at the facts unconstrained by the findings of the decision maker.

This tribunal seems to have thought its role akin to that of judicial review, where the decision under appeal is being looked at to see whether or not it is sustainable on the evidence, or otherwise legally irrational, rather than considered afresh.”

She then concludes by citing the Tribunal of Commissioners remarks in R(IB) 2/04:

“In our judgment, that approach to the nature of an appeal as a rehearing, which is how it was understood in the Social Security context before the 1998 Act changes, is to be applied to the current adjudication and appeal structure, subject only to express legislative limitations on its extent.

Taking the simple case of an appeal against a decision on an initial claim, in our view the appeal tribunal has power to consider any issue and make any decision on the claim which the decision-maker could have considered and made. The appeal tribunal in effect stands in the shoes of the decision-maker for the purpose of making a decision on the claim. “  

CPIP/1578/2017: Tribunals must notify claimants if considering removal of previously awarded points even if representative present  

Upper Tribunal Judge: Hemingway

The claimant was previously in receipt of the lowest rate of the care component of disability living allowance.

However, on making a claim for PIP it was decided that there was no entitlement to either component and her mandatory reconsideration request was refused.

A tribunal also dismissed her appeal and in doing so removed the points which had been awarded under daily living descriptor 2(b)(i) (Needs to use an aid or appliance to be able to take nutrition).  However it did not indicate to the claimant or her representative that it was going to consider doing so.

In upholding the claimant’s appeal, Judge Hemingway finds that the tribunal erred in law through failing to indicate the possibility of its removing previously awarded points notwithstanding the presence of her representative: 

“The tribunal did not actually ask itself whether the question of entitlement to two points under descriptor 2(b) was a matter raised by the appeal.  The Secretary of State had awarded those points and the claimant’s representative, in a written submission to the tribunal, had expressly indicated that it was accepted that that was the correct award under that particular activity.” 

He adds that:

“But, this was not a case where the Secretary of State had actually made an award of PIP.  The claimant, in pursuing his appeal, was seeking to establish entitlement to the daily living component.  Looked at in one way it might be argued that, since there was agreement between the parties about the appropriateness of the award of two points under that particular descriptor, that discrete issue was one not raised by the appeal (see section 12(8)(a) of the Social Security Act 1998, which provides that a tribunal “need not consider any issue not raised by the appeal”). “

However, Judge Hemingway rules that even assuming the matter was one raised by the appeal, it was still necessary for the tribunal to comply with its duty to act fairly:

“The tribunal does not make it clear, in its statement of reasons, as to at what point it realised that the removal of those 2 points might be a possibility.  But its approach seems to have been that, whenever the concern might have been identified, there would be no need to indicate that such was in its contemplation because the claimant had the assistance of an “experienced representative”.

… I appreciate that there are circumstances where a tribunal is able to rely upon a representative which it knows to be competent and experienced, to fulfil various tasks.  It may well have been right in taking the view that it could assume that such a representative  would, in general terms, explain to his or her client the range of a tribunal’s powers on appeal including the power to remove points and, indeed, to remove an award in certain circumstances. 

… But nevertheless, it simply goes too far to say that the duty to act fairly is complied with without some form of indication being given, once the risk is crystallised in the tribunal’s mind, regarding the taking away of points which have been previously awarded.”

Judge Rowley outlines that what should follow afterwards will depend upon the circumstances:

“Here, it might have been the case that if such a warning had been given the representative would have been able to indicate, perhaps after a brief adjournment to consult his client, that it was intended to proceed notwithstanding the risk.

There might be some cases where an adjournment to a different date would be the proper and fair course of action in circumstances where any warning given by the tribunal might lead to its being thought that further medical or other evidence ought to be obtained. 

There might be circumstances where, even if an adjournment to a different date is sought, a tribunal could legitimately take the view that fairness would not dictate that such would be granted if it thinks that the issue is a simple and straightforward one which does not require further evidence and which the representative is capable of dealing with.

But, here, the tribunal did err in law through failing to act fairly.  That is why I have decided to set aside its decision.”

CPIP/1823/2017: “Supervision” does not require one-to-one relationship between claimant and supervisor  

Upper Tribunal Judge: Wright 

The tribunal did not award the claimant points for his need for supervision when preparing food or cooking on the following grounds: 

“… [the appellant] cooked mainly at school, requiring supervision to boil an egg …[he stated] that there were 2 teachers supervising a class of 8 students.  He used both a knife and a peeler, cooking cakes, apple crumble and pasta.  His concern was burning himself on the oven although this had never happened.  There were no special measures in place to ensure his safety”.   

Based on this evidence the tribunal concluded that descriptor 1e was not met because: 

“…. there was not one to one supervision in class (2 teachers for 8 students) nor were there any special measures in place to ensure [the appellant’s] safety … together with [the appellant] being safe and able to use a peeler and a knife … as he was able to cook without physical intervention, there not being one to one support, together with there being no safety issues and there being no special measures in place, … [the appellant] did not require assistance”.                                                 

 But In upholding the claimant’s appeal, Judge Wright days that the  essential flaw in the tribunal’s approach was to require, or at least appear to require, the statutory supervision in the PIP statutory scheme to be one-to-one supervision:

“That in my judgment is not a requirement of the statutory test and unnecessarily narrows the statutory language.  A person can be continuously present with the purpose of ensuring a claimant’s safety without needing to be in a one-to-one relationship with the claimant. 

It may be a question of fact and degree whether the number of people the supervisor is continuously present with means he or she can meet the purpose of ensuring an individual claimant’s safety.  But I can identify nothing in the statutory language that requires the one-to-one supervisory closeness that the tribunal seems to have considered was required.”                

CPIP/1950/2017 : Tribunal’s duty to explain relevance of PIP claimant’s caring responsibilities if referring to them

Upper Tribunal Judge Gray

In this decision, Judge Gray considers if tribunals need to provide an explanation of the relevance of caring responsibilities if referring to them when assessing a claimant’s entitlement to PIP.

Judge Gray holds that if a tribunal relies on caring responsibilities as evidence when assessing PIP activities it is has a duty to find out the nature of the tasks undertaken and to record their relevance:

“If a Carer's Allowance is in payment to somebody claiming a disability benefit on their own behalf it is understandable for a tribunal to wish to examine that.  However it is not axiomatic that the receipt of Carers Allowance precludes entitlement to PIP, and the enquiry cannot start from that premise.  

Although the facts will be for the tribunal rehearing the case, the circumstances set out by Ms Gilfoyle refer to the appellant's partner suffering from a psychotic illness, and the possibility, in those circumstances, that the care given is in the nature of verbal support for her mental health problems, rather than physical care.  It will be for the tribunal to decide whether the care provided is inconsistent with the physical difficulties claimed.  

The case cited by Ms Gilfoyle, a decision of Upper Tribunal Judge Wikeley dating from 2011 (DLA/2499/2011) makes this very point.  

I should reassure the appellant that the inclusion of this case was not the taking into account of irrelevant matters. The case is legal authority for the proposition that it states, and it made a point in his favour. It was very helpfully referred to by Ms Gilfoyle in her capacity not simply as the representative of the Secretary of State, the respondent to the appeal, but as a legal representative acting to assist the tribunal to achieve a legally fair and proper outcome.”

CPIP/1998/2017: Factors to consider when assessing visual impairment and ability to complete activity “safely” in relation to planning and following a journey

Upper Tribunal Judge: Rowley

The claimant had a visual impairment.  A tribunal allowed his PIP appeal to the extent that it awarded him the enhanced rate of the daily living component (having awarded 15 points) and the standard rate of the mobility component (having awarded 10 points under descriptor 1d). 

He appealed to the Upper Tribunal on the grounds that the tribunal should have awarded the mobility component at the enhanced rate, as he satisfied descriptor 1f. 

At the relevant time, PIP mobility descriptor 1d specified: “cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid”.

PIP descriptor 1f provided: “cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid”.  

Judge Rowley first holds that when considering whether a person with a visual impairment falls within mobility descriptors 1d and/or 1f the crucial issues that fall to be explored are the nature and extent of the visual impairment:

“The commonly used term “visual impairment” can cover a broad range of conditions, and there are varying degrees of severity.  A person may be described as being visually impaired if their visual acuity is impaired, but others could similarly be referred to as visually impaired if, for example, they have difficulties in seeing in certain conditions (such as in bright light or in the dark) or if they have restriction of visual field or spatial awareness.  Of course, they may have a combination of some or all of these.  In other words, in many cases it will not be sufficient simply to say that a claimant is visually impaired.  The position may be more nuanced.”

He continues that:     

“In any event, it may well be that only when the answers to these issues have been established will it be possible adequately to consider the impact of a claimant’s visual impairment on his functional ability, and its effect on his ability to satisfy the criteria of the appropriate descriptors.  To proceed straight to the terms of the descriptors without first considering these matters may result in the tribunal making an error of law.”

Judge Rowley then stresses that the effect of regulation 4(2A)(a) and 4(4)(a) of the Social Security (Personal Independence Payments) Regulations 2013 is that a claimant is to be assessed as being able to follow the route of a journey without another person, assistance dog or orientation aid only if he can do so safely, i.e. “in a manner unlikely to cause harm to [himself] or to another person …”. 

This means that a tribunal should consider the risks to a visually impaired claimant from for  example, traffic or of being injured by obstacles of which he is unaware. This may include unexpected obstacles on routes which are otherwise familiar to them.

In this case, Judge Rowley finds that the tribunal erred in law in a number of ways:

“First and foremost, it did not make sufficient findings as to the nature of the claimant’s visual impairment, nor did it consider, even in general terms, the extent of the limits of his visual acuity, the extent of the contraction of his visual fields or his restricted ability to see in certain conditions.

Had it done so, it may well have approached descriptor 1f in a different way.  In its consideration of that descriptor, it failed sufficiently to consider whether the claimant could safely follow the route of a familiar journey without another person, taking into account, for example, the effect of lighting conditions, traffic and/or when there were unexpected obstacles.  … Given its finding that the claimant had a tendency to trip over kerbs, it is unclear how the tribunal concluded, without more, that he would have difficulties only on unfamiliar journeys.”   

Judge Rowley concludes by adding that tribunals considering appeals by claimants with visual impairment should, in appropriate cases, enquire whether the claimant has or needs an orientation aid.  If he does “on the face of it” that of itself would bring him within the terms of descriptors 1d and/or 1f.

CSPIP/543/2016: Plastic cutlery is not an “aid” or device”

Upper Tribunal Judge: May 

The claimant did not use metal cutlery as the reflection in them increased his anxiety.

However, Upper Tribunal Judge May holds that his use of plastic cutlery instead could not be deemed as an aid or appliance as defined in regulation 2 of the Social Security (Personal Independence Payment) Regulations 2013.

Regulation 2 provides that the phrase “aid or appliance” is defined as follows:

“(a) means any device which improves, provides or replaces, seize, impaired physical or mental function; and

(b) includes a prosthesis;”

Judge May holds as follows:

“Whilst the difficulty which the claimant asserts is the reflective surfaces of metal cutlery I cannot accept that cutlery made of a different material such as plastic or wood could properly be described as a “device”. 

Plastic cutlery does not improve, provide or replace the claimant’s impaired mental function.  It is not designed for such a purpose.  It is just a different material used in the manufacture of cutlery and it is incidental that its use obviates the claimant’s asserted anxiety in using metal cutlery. 

According the tribunal’s finding –

 “He is using a fork and knife but they have to be plastic due to the reflection in the knife and fork.  He is able to cut up his food okay.”

-      is a finding which excludes the requirement for a device as what the claimant is using are ordinary every day implements for eating food. There is thus no merit in the claimant’s ground of appeal.”

UK/5352/2014: A stoma and colostomy bag is an ‘aid or appliance’ for managing incontinence

Upper Tribunal Judge: Lane

In this decision, Upper Tribunal Judge Lane considers the following the two descriptors from activity 5 of schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013:

“5. Managing toilet needs or incontinence.

a. Can manage toilet needs or incontinence unaided. (0 points)

b. Needs to use an aid or appliance to be able to manage toilet needs or incontinence. (2 points)”

In doing so she says that:

“The descriptors the First Tier Tribunal (F-tT) had to deal with are convoluted.  It is understandable that a F-tT dealing with a complex matter such as the one underpinning this appeal would not have got to the heart of the problems arising from the definition of managing incontinence in paragraph 1, Part 1 of Schedule 1 and what the activity was meant to achieve.  

She continues:

“The definition envisages needs arising from the functioning of the bowel (evacuation) over which the claimant has no control ‘including use of a collecting device’.  A colostomy bag is undoubtedly a collecting device.  It is also undoubtedly a device falling within the meaning of an aid or appliance in regulation 2. 

If the descriptor means that a claimant who can manage his incontinence including the colostomy bag on his own (and clean himself after) scores nil points, how does this fit with descriptor 5b which is aimed at those who need an aid or appliance to manage incontinence? 

Arguably, if the colostomy bag is included within the function in 5a (resulting in nil points), it logically should be excluded as an aid or appliance for managing incontinence under 5b. 

This would mean that this important class of claimants suffering significant condition requiring the use of an undoubted medical appliance, cannot score points for a disabling condition which is specifically envisaged by the definition.  In other words, it is possible that the only way a claimant in the appellant’s position could qualify for points under 5b would by squeezing into the definitions of toilet needs instead of incontinence.” 

In holding that can be a solution, Judge Lane applies the case of Pepper v Hart [1992] UKHL 3.  This applies in cases where a legislative provision is ambiguous, obscure or its literal meaning leads to an absurdity and allows a court or tribunal to consider a statement made by or on behalf of a Minister or other person who is the promoter of the Bill (or in this case, Regulations) which is considered to disclose the mischief aimed at by the enactment or the legislative intention underlying its words, and it is clear. 

She also cites the explanatory memorandum accompanying the Personal Independence Payment Regulations that refers specifically to the consultation preceding those Regulations:

“In my view, it can be taken as incorporated by reference.  Paragraph 8.2 refers to the Government’s published response of 13 December 2012:

The definition of an appliance on page 59 reads ‘Appliances are devices that provide or replace a missing function, for example artificial limbs, collecting devises (stomas) and wheelchairs; and..

The examples given in respect of descriptor b on page 67 reads ‘For example: suitable aids could include commodes, raised toilet seats, bottom wipers, bidets, incontinence pads or a stoma bag’. “

In therefore concluding that a stoma and colostomy bag are an aid or appliance for the purposes of descriptor 5b Judge Lane says:

“A literal interpretation of the definition of ‘manage incontinence’ combined with the wording of descriptor 5b results in a contradiction or anomaly, and in view of the greater medical need of a person requiring a stoma and colostomy bag, it appears to be an absurdity.  The materials produced resolve these problems and, in my view, provides a surer basis for the decision than a simple purposive interpretation.”

Ken Butler - 12 March 2018