‘Safely’ in personal independence payment

 

Activities in the personal independence payment (PIP) test must be capable of being carried out ‘safely’. That word is defined in regulations, but has been the subject of an important decision of the Upper Tribunal and, most recently, updated official guidance. Ed Pybus explains.

In order to determine entitlement to personal independence payment (PIP), a claimant’s ability to undertake certain activities is assessed, using a range of descriptors to determine the level at which the claimant can complete the activity. The regulations provide that in the PIP assessment, a particular descriptor only applies if the claimant can carry out the activity, at that level ‘reliably’. This includes being able to perform the activity among other things, ‘safely’.1 Reg 4(2A)(a) Social Security (Personal Independence Payment) Regs 2013, SI No.377 ('SS(PIP) Regs’) Some activities include a descriptor that awards points if the activity can only be completed withassistance or supervision. The regulations define these concepts further: ‘“safely” means in a manner unlikely to cause harm to C [the claimant] or to another person, either during or after the activity’2 Reg 4(4)(a) SS(PIP) Regs and ‘“supervision” means the continuous presence of another person for the purpose of ensuring C’s safety’.3 Sch 1 SS(PIP) Regs

Last year, three joined cases were looked at by a three-judge panel of the Upper Tribunal where these issues were considered. The resulting decision was RJ, GMcL and CS v SSWP (PIP) [2017] UKUT 105 (AAC). This decision must be followed by decision makers and First-tier Tribunals in preference to that of a single Upper Tribunal judge.

Drawing on the approach taken by the House of Lords4 In Re H and others (minors)(sexual abuse: standard of proof) [1996] AC 563 when looking at the likelihood of harm in the context of protecting people against future harm, the judges held that the approach taken in previous caselaw, which referred to the infrequency or remoteness of harm occurring and the need for the descriptor to be satisfied most of the time, was incorrect. Instead the Upper Tribunal concluded that:

So decision makers and First-tier Tribunals should not consider that a claimant can undertake an activity safely if there is a real possibility of harm to either the claimant or another person.

The decision in RJ also held that Judge Jacobs was correct when in IM v SSWP [2015] UKUT 680 (AAC), he stated that‘a risk thatgives rise to a need for supervision need not be a risk that is unique to a particular activity […] It is sufficient if it is a general risk’. So if there is a real possibly of harm, either to a claimant or to others, if the claimant isn’t supervised, the claimant may score points under the descriptors that include supervision, regardless of whether or not the risk of harm is related to the activity.

The Secretary of State is not appealing against RJ and has issued guidance and updated the PIP assessment guide to take account of the judgment. The PIP assessment guide now states that it is necessary to consider the likelihood of harm and the severity of harm that may occur.5 DWP, PIP Assessment Guide: part 2 – the assessment criteria, para 2.1.15

Also, guidance issued to decision makers advises that three factors should be used when considering whether an activity can be performed safely:6 Memo ADM 29/17

and

The frequency and severity of harm are highlighted in RJ as relevant factors. Theguidanceto decision makers goes on to advise that it is important to consider the likelihood that the incident occurs at the exact moment when an individual is undertaking an activity that could cause harm. The example the guidance uses is ofa claimantwho has one seizure a day, butonly spends 45 minutes per day cooking; it therefore concludes that the likelihood of the seizures occurring at the time s/he is cooking is low, suggesting s/he would be able to undertake the activity safely.7 para 16 Memo ADM 29/17 8 Reg 4(2A)(b) SS(PIP) Regs It is arguable that this analysis fails the ‘real possibility test’ outlined in RJ.

The predictability of an incidentoccurring is not covered in detail by the judges in RJ, but in one of the cases under consideration they note that the First-tier Tribunal’s reasons for awarding points under Activity 4 due to the unpredictability of her seizures was consistent with its own approach. This suggests that the predictability, or otherwise, of an ‘incident’ occurring would be relevant.

Many of the examples in the guidance to decision makers cover the ways in which a claimant could be expected to mitigate the risks, and therefore undertake the activity safely. There is no discussion of mitigation of risk in the judgment.

While in some instances mitigation of the risks may be reasonable, in some it may not. Under the regulations, the claimant must still be able to undertake the activity ‘to an acceptable standard’.8 Reg 4(2A)(b) SS (PIP) Regs Also, in PE v SSWP (PIP) [2015] UKUT 309 (AAC), reported as [2016]

AACR 10, Judge Jacobs held that a tribunal is entitled to ‘consider reasonable and practical alternatives’ when assessing a claimant’s ability to complete an activity, but also noted: ‘There must be a balance struck that prevents claimants generating their own entitlement while at the same time not allowing their own disability to be used against them.’ These comments were made regarding Activity 6 but could potentially apply to other activities and the reasonableness of mitigating risk.

The second part of the guidance to decision makers discusses the process for revising awards.9 Memo ADM 30/17 It states that all decisions made between the date of the judgment in RJ (ie, 9 March 2017) and the date of the guidance (November 2017), and all PIP awards in payment on the date of the judgment, will be reviewed in an ‘independent exercise’. It also outlines the process that the DWP should take when reconsidering awards that may be affected by RJ.

Advisers should be aware that if there is a real possibility of harm occurring, then the claimant cannot be considered to be able to undertake the activity safely. Advisers should be prepared to explain why the claimant cannot mitigate the risk.

If a claimant’s awards would be increased as a result of RJ, the awards should be reviewed by the DWP, but the claimant can request a supersession or revision of her/his award instead.

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