Upper Tribunal (Administrative Appeals Chamber), November 04, 2016,  UKUT 501 (AAC)
|Resolution Date:||November 04, 2016|
|Issuing Organization:||Upper Tribunal (Administrative Appeals Chamber)|
|Actores:||AP v Secretary of State for Work and Pensions (PIP) (Personal independence payment daily living activities : Activity 6: dressing and undressing)|
AP v SSWP
 UKUT 0501 (AAC)
IN THE UPPER TRIBUNAL Appeal No. CPIP/3352/2015
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge K Markus QC
Appellant: Ms J Moore (counsel)
Respondenet: Ms F Scolding (counsel)
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal made on 13 August 2015 under number SC194/15/00141 was made in error of law.
Under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remake the decision as follows:
The Appellant's appeal against the decision of the Secretary of State dated 31 December 2014 is dismissed.
REASONS FOR DECISION
At the time of the Secretary of State's decision which is the subject of these proceedings and is dated 31 December 2014, the Appellant was 41 years old. The main conditions upon which she relied in her claim for personal independence payment (PIP) were fibromyalgia, hip dysplagia and a dislocated knee. She said that she suffered from constant pain, poor memory and concentration, and tiredness. The First-tier Tribunal awarded her 5 points for daily living activities and 4 points for mobility activities, so that she was not entitled to any award of PIP.
The Appellant advances the following grounds of appeal:
a) In relation to disability living activity 6 the tribunal erred in failing to determine whether the Appellant needed to use her bed as an aid in order to dress and undress. In support of this ground, she seeks to depart from the decision in CW v SSWP  UKUT 197.
b) The First-tier Tribunal failed to consider whether the Appellant needed to use an aid (a bath seat) to get in and out of the bath such that descriptor 4(b) would apply.
c) The tribunal erred in failing to consider whether mobility activity 2(c) applied because it did not determine what distance the Appellant could mobilise without crutches. This ground involves consideration of the different approaches of the Upper Tribunal in JP v SSWP  UKUT 529 and in L v SSWP  UKUT 612.
d) The tribunal erred in relation to mobility activity 2 in failing to consider the effect of any pauses or halts in the Appellant's mobility and/or failing to address her speed of walking.
I heard the appeal on 27 September 2016. The Appellant was represented by Ms J Moore (counsel) instructed by the Free Representation Unit. The Respondent was represented by Ms F Scolding (counsel) instructed by the solicitor for the Secretary of State. Both counsel had prepared skeleton arguments and I am grateful for these and their helpful oral submissions at the hearing.
The legislative framework
The primary legislation governing PIP is the Welfare Reform Act 2012. In summary, the effect of sections 78-80 of the Act is that a person is entitled to the daily living component or the mobility component at the standard or enhanced rate if their ability to carry out daily living activities or mobility activities is, respectively, limited or severely limited by their physical or mental condition. Whether their ability is limited or severely limited is assessed in accordance with the Social Security (Personal Independence Payment) Regulations 2013 (``the Regulations'') by reference to activities listed in Part 2 of Schedule 1 and the award of points accordingly.
Regulation 4 of the Regulations provides as follows:
``4 Assessment of ability to carry out activities
(1) ... whether C has limited or severely limited ability to carry out daily living activities ..., as a result of C's physical or mental condition, is to be determined on the basis of an assessment.
(2) C's ability to carry out an activity is to be assessed-
(a) on the basis of C's ability whilst wearing or using any aid or appliance which C normally wears or uses; or
(b) as if C were wearing or using any aid or appliance which C could reasonably be expected to wear or use.''
I set out the relevant activities contained in Schedule 1 in the sections below where they arise in relation to each of the grounds of appeal.
Ground 1: Activity 6 - the bed as an aid
Activity 6 in Schedule 1 of the PIP Regulations is as follows:
The Schedule provides that
```dress and undress' includes put on and take off socks and shoes;''
Regulation 2 defines ``aid or appliance'':
``... `aid or appliance'-
(i) means any device which improves, provides or replaces C's impaired physical or mental function; and
(ii) includes a prosthesis;''
The First-tier Tribunal addressed this activity as follows:
``27. The Tribunal was satisfied that for the majority of the time the Appellant was able to dress and undress unaided. She told the healthcare professional that she did this whilst sat on the bed after showering. Her physical and mental health assessment by the healthcare professional was unremarkable. We were not persuaded from the evidence before us that she could not dress and undress independently and we were not persuaded that she needed prompting or assistance from another person in order to dress or undress. No points were awarded for activity 6.''
The Appellant submits that the tribunal assessed her ability to dress and undress while sitting down, but it did not consider whether she needed to sit down in order to do so and, if so, whether the bed on which she sat was an aid for the purpose of descriptor 6b. The Respondent's case is that the bed could not be an aid and so there was no need for the tribunal to decide whether the Appellant needed to sit on a bed in order to dress or undress.
In NA v Secretary of State for Work and Pensions  UKIUT 197 (AAC) Judge Mark decided that an object can be a ``device'' within regulation 2 even if not specially made for the purpose and can comprise an ordinary household item. In relation to dressing and undressing, he said:
``14. ...the question is not whether other people might choose to use a chair or a bed to assist when dressing or undressing, but whether a claimant is unable to dress or undress without using them or some other qualifying aid or appliance.''
The question whether a bed is an aid for the purpose of activity 6 was next considered by Upper Tribunal Judge Jacobs in CW v SSWP  UKUT 0197 (AAC). He agreed (as did the Secretary of State) with Judge Mark that an aid does not have to be specially designed, made or sold for the purpose. The difficult question on which Judge Jacobs focussed was this:
``19...in order to be relevant, an aid or appliance must relate in some way to the particular activity. I call this the connection argument. The difficulty is to define what the connection is.''
For present purposes, the key passages of Judge Jacobs' analysis are as follows:
``24...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 claimant's representative argues that the claimant needs to sit on account of her physical condition, and is using the bed as an aid to overcome her impaired ability to stand and balance. That, he argues, is all that the claimant has to prove to score the points. I do not accept that argument, because it fails to analyse the functions involved, in this case, in the activity of dressing and undressing....
I accept the Secretary of State's argument that there must be some connection between the aid and the activity or descriptor. This is always made clear by the language of the descriptors....
It is often possible, as the claimant's representative submits, to find strategies to avoid the need for an aid altogether. To take an example from dressing and undressing, a claimant could avoid any problems with sitting or standing by lying on the floor to dress and undress. I accept the representative's argument that that approach would render the references to an aid otiose, at least for some activities. I am sure that the Secretary of State's representative did not intend to go that far, but the example shows that it is not appropriate to require that the function in respect of which the claimant uses the aid be absolutely essential to carrying out the activity.
The claimant's entitlement depends on the extent to which they are limited in carrying out the everyday activities specified. That is what the legislation provides. It does not provide for entitlement if the claimant is only limited in carrying out the activity in a particular manner. This provides a focus for avoiding the extreme example I have just considered and for giving proper significance to the role that function plays in the definition of an `aid or appliance'. 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. So, using an ordinary wooden spoon to stir hot food while it is cooking is using an `aid' in the everyday sense of the word, but it would not assist in overcoming the consequences of any loss of function, because it would be used anyway. But if the spoon had a special handle for someone with poor grip, it would be an aid for the purposes of Activity 1 (preparing food). Gripping is a function involved in cooking and the use of a handle that improves grip makes the spoon an aid.
There is a difference between a person with has no limitation but who uses a spoon to stir hot food and one who uses a chair or a bed to sit during dressing. In the former case, it is not a matter of choice; no one stirs hot food with their fingers. In the latter case, it is a matter of...
To continue readingREQUEST YOUR TRIAL