PIP: aids, appliances and caselaw

 

Gwyneth King reviews some caselaw on the relevance of aids and appliances in the assessment for entitlement to personal independence payment (PIP).

PIP claimants can score points if they need to use ‘an aid or appliance’ to undertake various daily living activities. In the mobility activities, certain descriptors in Activity two (moving around) also refer to use of an aid or appliance, or to an ability to complete an activity ‘aided’ and/or unaided’.

Regulation 2 of the Social Security (Personal Independence Payment) Regulations 2013 (‘the PIP regulations’) defines an aid or appliance as ‘any device which improves, provides or replaces [the claimant’s] impaired physical or mental function’ (including a prosthetic limb).

Caselaw from the Upper Tribunal has begun to discuss what might count as an aid or appliance and how these apply to some individual activities and descriptors.

In the recent case of JM v SSWP (PIP) [2016] UKUT 296 (AAC), Judge Lane held that someone who uses a colostomy bag scores two points under descriptor 5(b), even though s/he can manage the bag unaided. Although specifically only concerning colostomy bags, this may lend support to arguments that points should also be scored under 5(b), contrary to official guidance, where the claimant uses a catheter or incontinence pads without help.

There is conflicting caselaw about everyday items counting as aids and appliances.

In NA v SSWP (PIP) [2015] UKUT 572 (AAC), Judge Mark held that everyday household items such as stools, chairs and beds can be aids or appliances, if a claimant is unable to undertake an activity without using them1 para 14 – ie, that the item need not have been adapted or designed for the purpose or function the claimant uses it for. On the facts of the case, he held that the claimant scored two points under daily living descriptor 6(b), as she needed to sit down on a chair or bed to ‘dress and undress’.

However, in CW v SSWP [2016] UKUT 197 (AAC), Judge Jacobs diverged from this view. He accepted Judge Mark’s finding that an aid does not have to be specifically designed, made or sold for the purpose a claimant uses it for to count.2 para 18 He referred to the DWP’s PIP Assessment Guide, which states ‘aids and appliances may also be mainstream items used by people without an impairment, where, because of their impairment, the claimant is completely reliant on them to complete the activity’.3 Then para 3.2.19, now para 3.2.20

However, he differed on what condition needs to apply before a particular everyday item counts. Judge Mark found it was that the claimant couldn’t carry out the activity without it, whereas Judge Jacobs held that what was key was that the claimant’s use of it is unusual. If it is usual for someone without a limitation to use the item to carry out the particular aspect of the activity that the claimant uses it for, he held the item is not an ‘aid or appliance’.4 para 31

Judge Jacobs was considering Activity six (dressing andundressing), specifically whether needing to sit down on a chair or bed to pull on trousers due to poor balance, amounted to needing to use an aid or appliance to be able to dress or undress (descriptor 6(b)). He held it did not, because it is usual for people without limitation to sit down to pull on trousers simply because they find it easier.

Until further caselaw resolves this conflict, it seems likely tribunals will be persuaded by Judge Jacobs’ reasoning in CW v SSWP to reject submissions that everyday items count as aids and appliances, unless claimants are using them in ways that would be uncommon among people without limitations. Indeed, the PIP Assessment Guide has been amended to that effect.5 para 3.2.20

For example, regarding Activity four (washing and bathing), it is arguable a bathroom sink is an aid or appliance, if a claimantneeds to lean or hold onto it to get into the bath or shower safely in the absence of a device adapted or designed for this purpose, such as grab rails. This is because someone without limitation would be very unlikely to use a sink to facilitate getting into the bath or shower – it isn’t usual for someone without limitation to need to lean or hold onto anything to enable her/him to get into the bath or shower safely.

In AI v SSWP (PIP) [2016] UKUT 322 (AAC), Judge Mesher gave a provisional view that a microwave is not an aid or appliance, as he could not see that using a microwave ‘improves, provides or replaces [the claimant’s] impaired physical or mental function’ in relation to preparing food; it merely provides one means of cooking.6 para 10 (This is academic as, even if needing to use a microwave does not score a claimant two points under descriptor 1(b), it should score her/him two points under descriptor 1(c)).

More contentious is his conclusion that a claimant’s ability to prepare food is irrelevant to descriptor 1(c), as it only mentions cooking, not preparation.7 para 8 This contradicts the DWP’s PIP Assessment Guide, which states that decision makers should ‘ensure the claimant’s ability to prepare a meal is also taken into account when considering if this descriptor applies’.8 s3.4, p99

It also contradicts Judge Bano’s finding in SB v SSWP [2016] UKUT 219 (AAC), and] Judge Gray’s in LC v SSWP (PIP) [2016] UKUT 150 (AAC), that a claimant’s scoring under this activity should only be confined to descriptor 1(c) if s/he can safely prepare and cook a one-course meal for one from fresh ingredients, and make it ready for eating, without supervision (reference being made to regulation 4 (2A) of the PIP regulations, which provides that a claimant only satisfies a descriptor if s/he can do so safely, to an acceptable standard, repeatedly and within a reasonable time frame). If s/he requires supervision to do so, both held that descriptor 1(e) should apply instead.

In granting permission to appeal in SB v SSWP, Judge Jacobs also indicated a failure to consider preparation when assessing descriptor 1(c) may amount to an error of law.9 para 4 10 para 17 11 para 21 Taken with the decisions of Judge Bano and Judge Gray, it is suggested that this interpretation should be preferred.

Judges Bano, Gray and Jacobs all issued a reminder that where two or more descriptors are satisfied in respect of an activity, regulation 7(1)(b) of the PIP regulations establishes that the descriptor scoring the highest number of points applies. Decision makers must therefore consider all the descriptors, not simply stop at the first lowest scoring one that applies.

In KL v Secretary of State [2015] UKUT 612 (AAC), Judge Mitchell highlighted an inconsistency between regulation 4(2) of the PIP Regulations, which provides that a claimant’s ability to carry out an activity should be assessed while s/he is wearing any aid or appliance s/he usually wears or uses (or might reasonably be expected to wear or use), and the wording of mobility descriptor 2(c), which calls for an assessment of a person’s unaided ability to move around.10 para 17

Referring to the statutory interpretation principle that special provisions override general ones, Judge Mitchell held that the First-tier Tribunal had incorrectly interpreted descriptor 2(c) by finding the claimant could walk in excess of 200 metres with the aid of her crutches or walking stick, as descriptor 2(c) required it to assess how far she could walk unaided.11 para 21

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