PIP at the Upper Tribunal

 

Jon Shaw looks at some of the more important personal independence payment (PIP) caselaw from the Upper Tribunal.

PIP caselaw is starting to build. Some of those decisions with the widest application are described below. One notable absence thus far is detailed consideration of the four factors that must be considered in deciding whether a claimant can carry out an activity ‘reliably’. This remains a weakness in DWP appeal responses, and advisers should continue to make representations to tribunals about which factors are relevant and why.

Several decisions have highlighted ambiguities in the wording of the PIP descriptors or drafting issues.

One example is what the periods of time in most descriptors under managing medication and therapy (Activity 3) refer to. In JT v SSWP,1 [2015] UKUT 554 (AAC) Judge Williams held that the specific time periods refer to the length of time per week that someone else spends supervising, prompting or assisting the claimant with therapy, and not to the length of time the claimant spends on the therapy itself (paragraph 26). This was also the conclusion reached by Judge Agnew in RH v SSWP2 [2015] UKUT 281 (AAC) (Bulletin 247, p12). In the latter case, the judge also held that a need for assistance to set up or prepare a TENS machine (which arguably also applies to other therapeutic equipment, such as a dialysis machine) allows points to be scored for descriptors 3c to 3f, even if the claimant can undertake the therapy unaided once the equipment is set up.

In PC v SSWP,3 [2015] UKUT 622 (AAC) Judge Ward held that there is noclear distinction between whatis ‘medication’ and what is ‘therapy’. This means that it is arguable that a need for help with prescribed or recommended medication (in this case, a topical cream for eczema that the claimant could not apply to some parts of her body without assistance) can allow points to be scored for descriptors 3c to 3f, depending on how long that help is needed for. The judge declined to give detailed guidance on where the line should be drawn, holding thatthis was a matter for the expertise of the First-tier Tribunal, who should address the point and give appropriate reasons.

In PE v SSWP4 [2015] UKUT 309 (AAC) (see p12), Judge Jacobs provided helpful guidance on ‘the sort of clothing to which the claimant’s limitations must be applied’ in the dressing and undressing activity (Activity 6). He cautions against ‘defining away the effects of the claimant’s disability’ by only considering too limited a range of clothing (paragraphs 19–21).

The decision in PE also considered the interaction between the ‘reliability’ criteria set out in regulation 4(2A) and the descriptors that either use the word ‘cannot’ or apply if the claimant needs ‘prompting’ or ‘assistance’ to carry out an activity. The judge holds that the difficulty here is resolved ‘if the words “do so” [in regulation 4(2A)] are read as referring to “carry out an activity”’ (paragraph 35). The alternative approach, reading ‘do so’ as ‘satisfy the descriptor’, would have meant that some descriptors could never be satisfied.

This is a similar difficulty to that identified by Judge Mark in SSWP v AM5 [2015] UKUT 215 (AAC) (Bulletin 247, p12) – in that case, in relation to engaging with other people (Activity 9). Given the requirement that the claimant must manage an activity ‘reliably’ (ie, safely, repeatedly, to an acceptable standard and within a reasonable time period), it seems impossible for descriptor 9d to ever be satisfied. A claimant who ‘experiences overwhelming psychological distress’ would not be engaging ‘to an acceptable standard’, while the claimant who was at ‘a substantial risk of harm’ would obviously fail to undertake the activity ‘safely’. Judge Mark held that the wording of 9d must be construed as ‘referring to such engagement as [the claimant] may be capable of but for such overwhelming distress or the relevant risk from such behaviour’ (paragraph 12).

In AM, Judge Mark also noted the anomaly that the words ‘engage socially’ are given a statutory definition in the PIP regulations, but do not appear in any of the descriptors. He held that the orphan definition is still relevant to whether a claimant can engage with other people to an acceptable standard. The definition is ‘interact with others in a contextually and socially appropriate manner; understand body language; and establish relationships.’6 Sch 1 part 1 of the PIP Regs

Judge Mark has recently returned to Activity 9 in PR v SSWP.7 [2015] UKUT 584 (AAC) He held that the definition of ‘social support’, words used in descriptor 9c, does not require that the claimant is actually accompanied by the person who provides that support at the time of engaging with other people. As the judge put it, ‘The tribunal needed to ask itself not “were they there at the time of the engagement?” but “would the claimant have been able to engage with other people without the social support she received?”’ (paragraph 31). This decision will be helpful to claimants who are receiving some support from community mental health services, and would otherwise be unable to engage with other people, for example. It is arguable that a similar approach should apply to descriptors that mention ‘prompting’ – eg, if someone needs to phone to encourage the claimant to bathe or prepare food.

A number of decisions have now clarified the scope of what counts as an ‘aid or appliance’, defined as ‘any device which improves, provides or replaces [the claimant’s] physical or mental function…including a prosthesis.’8 Reg 2 of the PIP Regs Probably the most helpful is NA v SSWP.9 [2015] UKUT 572 (AAC) In this decision, Judge Mark held that the need to sit down on the bed in order to dress reliably meant that the claimant satisfied descriptor 6b – ‘needs to use an aid or appliance to be able to dress or undress’.

The Secretary of State’s representative argued that the ordinary meaning of the word ‘device’ (which is not given a statutory definition) meant that a bed or chair could not count, as they were not designed to help someone to dress. This argument was rejected, as ‘the expression must be construed here in the context of a person with an impaired physical or mental function which prevents them from undertaking certain activities without taking special measures to compensate for the impaired function’ (paragraph 11). The judge goes on to list further examples of what he considers to be within the statutory definition of ‘aids’: using a bar stool, chair or wheelchair to prepare or cook food; using a garden chair in the shower; and setting an alarm as a reminder to take medication (paragraphs 12–13).

Similarly, in EG v SSWP10 [2015] UKUT 275 (AAC) (Bulletin 247, p12), Judge Wright held that a perching stool counts as an ‘aid’ in relation to preparing and cooking food, and (without deciding the point) that a walking stick ‘probably’ does. This would, by implication, extend to other daily living activities that require movement and balance. The judge also held that points already awarded by the decision maker are not ‘in the bag’ and may be revisited by the tribunal. Whether this is appropriate will depend on the facts of an individual case, and a tribunal should warn a claimant before removing points which are undisputed, to allow representations to be made about them.

In GB v SSWP,11 [2015] UKUT 546 (AAC) Judge Wright held that a tribunal was wrong to disregard lever arm taps as not being an aid to prepare and cook food. However, the judge went on to point out that there is the further issue of whether a particular claimant needs to use the aid to prepare and cook food reliably. However, ‘the fact that the occupational therapy [OT] report found that they were needed may go a long, if not the whole, way to satisfying this part of the test’ (paragraph 8). Judge Wright makes clear that any departure from the recommendations of an OT report about aids or appliances needed for the prescribed activities will require adequate explanation.

Here, there is a conflict in the current caselaw. Both DA v SSWP12 [2015] UKUT 344 (AAC) and RC v SSWP13 [2015] UKUT 386 (AAC) consider planning and following journeys (Activity 11), and were decided within a week of each other, so it is unsurprising that neither decision makes reference to the other. In DA, Judge Jacobs held that ‘the natural meaning of “follow the route of an unfamiliar journey” is that it is concerned with navigation rather than coping with obstacles of whatever sort that may be encountered on the route’ (paragraph 13). This is similar in tone to the guidance that the DWP has produced for decision makers.14 DWP, Advice for Decision Making, Appendix to chapter P2, available from

At the time of writing, a further case is before the Upper Tribual, which will presumably resolve this conflict. File number UK/313/2015 (PIP), now decided - see the note at the end of the article for details Until this case is decided, advisers will need to be prepared to argue that RC should be preferred to DA (as it broadens the scope of the activity considerably). Arguably, RC at paragraph 9 provides a more cogent explanation for the structure of the activity as a whole than DA, as descriptors 11b, 11c and 11e all look at what help is needed before a journey begins (considering the natural meaning of the words ‘plan’ and ‘undertake’). This explains why these descriptors make no reference to the ability to ‘follow the route of a journey’, and avoids Judge Jacobs’ arguably strained limitation on the kind of help that another person can give (DA at paragraph 15). The argument that descriptor 11b considers a need for help before a journey begins potentially gets some support from the definition of the word ‘“prompting” [which] means reminding, encouraging or explaining by another person’.15 Sch 1 part 1 of the PIP Regs Previous guidance clarified that there is no need for a person to be physically present to prompt the claimant (so, arguably, a need for prompting to leave the house from someone who did not actually accompany the claimant would allow 11b to be satisfied), although the latest versions are silent on this point.16 Compare Advice for Decision Making chapter P2 with DWP, Personal Independence Payment: second draft of assessment criteria, an explanatory note to support the new draft assessment regulations, November 2011, para 4.20.

A more straightforward way of expressing a very similar argument is that to ‘follow the route of a … journey’ to an acceptable standard, a claimant must surely be able to arrive at her/his intendeddestinationsafelyandwithinareasonable time period, etc. If this is not possible due to a physical or mental condition, then the interpretation of this activity laid down by Judge Jacobs in DA produces absurd results when comparing the effects of different conditions on ability to follow journeys, an outcome avoided by preferring Judge Agnew’s interpretation.

Two Upper Tribunal cases have considered the moving around activity. In KR v SSWP,17 [2015] UKUT 547 (AAC) Judge Rowley held that a tribunal’s reasoning in relation to the reliability factors was inadequate, and that an asthma inhaler is not an ‘aid or appliance’. In JP v SSWP,18 [2015] UKUT 529 (AAC) Judge Hemingway clarified how the walking ability should be assessed against the descriptors if there is a difference in the claimant’s ability to walk ‘aided’ and ‘unaided’.

In JC v SSWP19 [2015] UKUT 114 (AAC) (Bulletin 246, p13), Judge Gamble held that the ‘Moyna test’ – which requires that a decision maker or tribunal make a broad judgement in assessing the overall level of needs that a claimant has for disability living allowance purposes – does not apply to PIP. The test in regulation 7 of the PIP regulations (the ‘50 per cent rule’) has replaced this test completely.

In AK v SSWP,20 [2015] UKUT 620 (AAC) Judge Ward provided guidance on the correct approach to the 50 per cent rule in regulation 7 where the claimant has two different fluctuating conditions which affect her/his ability to manage the prescribed activities independently of each other. In a typical week, the claimant was affected by arthritis on two or three days and by chronic obstructive pulmonary disease (COPD) on three days. The tribunal erred in law by assuming without any evidence that the two conditions affected the claimant on the same days. In TR v SSWP,21 [2015] UKUT 626 (AAC) Judge Hemingway held that a claimant who only has problems with an activity at some times in the day or night nonetheless scores points (unless the help needed is so negligible it can be ignored). The examples in this case were needing an aid to read but only in poor light, and needing help to follow journeys in the hours of darkness.

In BTC v SSWP22 [2015] UKUT 155 (AAC) (Bulletin 246, p13), Judge Bano reminded tribunals of the process that they must go through if they are considering making a less favourable decision than the one under appeal. This case is notable as the (unrepresented) claimant had in fact challenged the rate of the mobility component awarded by the decision maker, putting it in issue, but the tribunal had still erred in law in removing it.

Note: since this article was published a further Upper Tribunal decision has considered the ‘Planning and following journeys’ activity. In HL v SSWP (PIP) [2015] UKUT 694 (AAC), Judge Ward preferred to follow the reasoning of Judge Jacobs in DA to that of Judge Agnew in RC, holding that ‘the use of the words “follow” and “route” focuses on the claimant’s ability to navigate along pathways and is not concerned with other problems that a claimant may have when being in the natural environment’ (para 32). As this decision considers and rejects the reasoning in RC, it is likely to be followed by most First-tier Tribunals, although it is not formally binding on them.

Judge Ward did agree that ‘”psychological distress” is capable of being relevant to a person’s ability to “follow the route”’ (para 38) and that ‘types of difficulty occurring on the way – such as the need to navigate round roadworks or the effects of an accident – …might properly fall within the scope of the descriptor[1d]’ (para 34). However, this decision still presents a significant hurdle to claimants with mental health problems seeking to qualify for the PIP mobility component due to needing another person to accompany them on unfamiliar journeys. For a more detailed summary of this case see Bulletin 250, p11.

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