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CDLA/528/2015: Application of past present test to refugees and their families amounts to unlawful indirect discrimination (contrary to the provisions of Article 28 of EU Directive 2004/83/EC and Article 14 of the ECHR)
Upper Tribunal Judge: Markus QC
This decision considers whether the application to refugees and their family members of the past presence test (“PPT”) in regulation 2(1)(iii) of the Social Security (Disability Living Allowance) Regulations 1991 amounts to unlawful indirect discrimination contrary to the provisions of Article 28 of EU Directive 2004/83/EC (the Qualification Directive), or Article 14 of the European Convention on Human Rights (ECHR).
Both appellants were disabled children.
MM is a Ugandan national. His mother was granted refugee status in the UK in March 2012. MM joined his mother in April 2013 with entry clearance on the basis of family reunion. A claim was made on his behalf for DLA in August 2013. SI is a Somali national. She arrived in the UK with her mother and sister in August 2013 and they were given indefinite leave to remain on arrival. A claim was made on her behalf for DLA in August 2013. Both DLA claims were refused on the grounds that neither child had been present in the UK for 104 weeks.
The legislation considered in this appeal includes as follows.
Regulation 2 of the Social Security (Disability Living Allowance) Regulations provides:
“2 (1) Subject to the following provisions of this regulation and regulations 2A and 2B, the prescribed conditions for the purposes of section 71(6) of the Act as to residence and presence in Great Britain in relation to any person on any day shall be that–
on that day -
he is habitually resident in the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands; and
(ib) he is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 or section 115 of that Act does not apply to him for the purposes of entitlement to disability living allowance by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, and
(ii) he is present in Great Britain; and
(iii) he has been present in Great Britain for a period of, or for periods amounting in the aggregate to, not less than 104 weeks in the 156 weeks immediately preceding that day…”
There is provision for exemptions from regulation 2(1)(a)(ii) in the case of absence from Great Britain of a serving member of the forces and those in other specified occupations, and absences for medical treatment.
There is another exemption allowed by regulation 2A, which provides:
“2A (1) Regulation 2(1)(a)(iii) shall not apply where on any day -
(a) the person is habitually resident in Great Britain;
(b) a relevant EU Regulation applies; and
(c) the person can demonstrate a genuine and sufficient link to the United Kingdom social security system.”
Article 28 of EU Directive 2004/83/EC (the Qualification Directive) is headed “Social Welfare” and provides:
“Member States shall ensure that beneficiaries of refugee or subsidiary protection status receive, in the Member State that has granted such statuses, the necessary social assistance, as provided to nationals of that Member State.
By exception to the general rule laid down in paragraph 1, Member States may limit social assistance granted to beneficiaries of subsidiary protection status to core benefits which will then be provided at the same levels and under the same eligibility conditions as nationals.”
The effect of Article 28 is extended to the family members of those with refugee or subsidiary protection status by Article 23(2) of the Directive.
Protocol 1 Article1 of the European Convention on Human Rights provides:
(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Article 14 of the European Convention on Human Rights provides:
“The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
In a long and detailed decision, Upper Tribunal Judge Markus holds that with respect to the DLA past presence test that:
- Article 28 of the Qualification Directive has direct effect;
- DLA is social assistance for the purpose of Article 28;
- the PPT indirectly discriminates against refugees and their family members.;
- the discrimination is not justified;
- DLA is within the ambit of Article 1 Protocol 1;
- the PPT does indirectly discriminates against refugees and their family members; and
- the PPT cannot be justified under Article 14.
As a result, Judge Markus concludes as follows:
“In the light of my finding of discrimination contrary to the Qualification Directive and applying section 2(1) European Communities Act 1972, it is appropriate to disapply the offending provision in the DLA Regulations. See Hockenjos, at [88]. In relation to discrimination contrary to Article 14 ECHR, the same result follows from the application of section 6(1) Human Rights Act 1998.
There is no dispute that the Appellants satisfied the other conditions of regulation 2(1) of the DLA Regulations. So the decision which I make is that at the relevant time the Appellants satisfied the residence and presence conditions for DLA in section 71(6) Social Security Contribution and Benefits Act 1992.
The Secretary of State must now determine the Appellant’s claims for DLA in accordance with this decision. If the Appellants are unhappy with the decisions that are made by the Secretary of State, they will have a further right of appeal to the First-tier Tribunal.”
The DWP has now published DMG Memo 20/16 and ADM Memo 21/16 stating that the decision will not be appealed and confirming it as law.
"The past presence test is no longer to be applied to claims … submitted by refugees and their family members or to people with Humanitarian Protection status and their families."
CDLA/3612/2015: Consideration of a child’s night time attention needs
Upper Tribunal Judge: Hemingway
The claimant, aged five years old, had a condition known as hyper‑extensive mobility expandable joints. As a result, he suffered quite intrusive joint pain.
In completing a DLA claim pack his mother said that he experienced pain during the night, lacked strength and co‑ordination and suffered from joint stiffness in the morning. She indicated that she had to provide him with assistance with a range of functions. In particular, at night‑time, she referred to him often waking with leg and hip pain.
A First Tier Tribunal (FTT) upheld her appeal against a decision to refuse DLA.While it awarded her son the lower care rate on the grounds of him needing a significant amount of help during the day she appealed to the Upper Tribunal. This was on the grounds that her son fulfilled the conditions for the middle care rate due to attention given to him at night.
In its statement of reasons the FTT said:
“With regard to night‑time care the tribunal again has to look at whetherthe criteria of prolonged or repeated attention is met as well as the extra criteria concerning the need to be substantially in excess than other children of a similar age as explained above. The evidence is that [the claimant] has four good nights a week when he is awake and needing attention for 30-60 minutes. This would not be unusual for some five year olds.
On the other three nights which are bad nights he is awake on several occasions that can total five or six hours. He has however never missed any school as a result of being too tired. Five or six hours may be substantially in excess to care needed by children of a similar age who have no mental or physical health problems but this is not for most of the time which is the test. For most of the time therefore [the claimant] does not require prolonged or repeated attention during the night and does not therefore fulfil the criteria for any award of the care component at night-time.”
In setting its decision aside, Upper Tribunal Judge Hemingway finds that the FTT did err in law, saying that:
“It did so in my judgment, first of all, by failing to explain its view, which does not seem to me to be sufficiently obvious to be assumed, that it would not be unusual for some five year old children to require attention for 30 to 60 minutes per night.
Further, and perhaps more importantly, it seems to have lost sight of the point which was made clear in CSDLA/3737/2000 that what is under consideration is whether any attention received by a child claimant is substantially in excess of that which would be required normally by a child of the claimant’s age. Additionally, and on the same theme, it was said in CA/92/92:
“It seems to me that the legislation contemplates a yardstick of an average child, neither particularly bright or well behaved nor particularly dull or badly behaved, and then the attention or supervision required by the child whose case is being considered must be judged to decide whether it is “substantially” more than would normally be required by the average child”.
I agree with that reasoning which seems to me to be perfectly obvious. It means, though, that the tribunal should have been asking itself whether the claimant had needs significantly beyond those which a normal child of his age would have.
The reference the First-tier Tribunal made to the needs of “some five year olds” (my underlining) points to it having lost sight of that. It did not in fact make any finding as to what needs a child of the claimant’s age could normally be expected to have at night time and so did not ask itself the right question.
The mere fact that some 5 year olds might need attention at night for 30 to 60 minutes did not mean that was the normal situation. Accordingly its reasoning and findings did not provide a proper basis for its conclusion that the appellant did not have night‑time needs in consequence of the “substantially in excess of the normal requirements” test. I set its decision aside.”
Judge Hemingway goes on to substitute his own decision that the child did fulfil the test for a middle care rate award due to the extent of his night time needs:
“By way of reminder, the tribunal found that the appellant would, on four nights a week, require attention for 30 to 60 minutes. It found that on the remaining three nights, the bad nights, he would be awake on several occasions, seemingly needing attention, for something in the region of five to six hours each night.
It seems to me quite obvious that, even taking into account the “substantially in excess” requirement which relates to those under 16 years of age, the test under section 72(1)(c)(i) [of the Social Security Contributions and Benefits Act 1992] is comfortably met on the basis that prolonged or repeated attention is required. Indeed, the First‑tier Tribunal appeared to accept that without real difficulty.
As to the remaining four nights, an important question for me to resolve in remaking the decision is whether the need for attention for 30 to 60 minutes will satisfy the test relating to prolonged attention (I say prolonged rather than repeated because it appears that on those nights attention was normally needed only once) when one factors in the “significantly in excess” aspect.
Further, and seeking to apply common-sense to the situation as best I can, it does not seem to me right to say that many children of the age of five (as the appellant was at the material times) will require or are likely to require that sort of attention on anything approaching a regular basis. Rather it seems to me entirely reasonable to conclude that the attention this claimant receives even on the good nights is substantially in excess of that which would be required by a typical child of a similar age.”
17. In light of the above, therefore, I have concluded that, on the facts, that the appellant does require from another person prolonged or repeated attention in connection with his bodily functions and that those requirements are substantially in excess of the normal requirements of a person of his age. I have, therefore, remade the decision on that basis. I have not interfered with the period of the award since that has not been challenged at any stage."
In obiter comments, Judge Hemingway also says that the tribunal were wrong to consider whether the night time test was met on the majority of nights, citing R(A) 1/74 where it was decided that a rigid mathematical approach would not be appropriate and that it was not necessary to consider each night separately.
He says:
“Indeed it seems to me that an overall consideration encompassing the nature and extent of the needs which were identified on the good nights as well as on the bad nights and including, though not as a decisive aspect, the balance between the two might well have been the correct course.
That would have meant the needs which were identified on the good nights, albeit that the tribunal found they were sufficient to meet the test for those particular nights, would not have had to have been ignored in the overall conclusion reached and nor would the considerable extent of the needs on the bad nights which went significantly beyond the requirements of the test.”
CDLA/56/2016: Assessing child’s need for attention / consideration of making a future award
Benefit: DLA
Upper Tribunal Judge: Lane
The claimant, D, was 4 years 7 months old at the date of claim and 4 years 10 months at the date of the Secretary of State’s decision on 6 March 2013. The decision was that D was not entitled to either the mobility or the care component of DLA.
D has cerebral palsy, developmental coordination delay, dyspraxia and hypertonia. He has some signs of autism, but his doctors have not confirmed a diagnosis of that condition.
D additionally has problems with faecal seepage owing to constipation caused by poor muscle tone. He has medically recognised absences which may require the intervention of another person, who would generally be an adult, to rouse him by tapping him on the nose. The appellant asserts that D often has these absences when walking outdoors. These are said to require interventions to avert danger.
With the First Tier Tribunal (FTT) confirming the Secretary of State’s decision, the appellant appealed to the Upper Tribunal.
In setting aside the FTT’s decision and remitting the appeal for rehearing, Upper Tribunal Judge Lane identifies the following errors of law.
Firstly, the FTT omitted to deal with the extra attention D received at school under his Statement of Special Educational Needs. While it mentioned attention in connection with cognitive needs confined its consideration to the attention D needs with his absences. It does not deal with the extra provision made under D’s Statement of Special Educational Needs.
Judge Lane says:
“The Secretary of State has done a rough calculation of this in his Submission to the UT. D gets approximately 215 minutes of extra attention per week (phonics - 60 minutes per week, teaching assistant – 20 minutes, group support – 30 minutes, SEN – 30 minutes, DCD – 75 minutes). When divided across the week, this amounts to roughly 43 minutes per week at various times of the day. When the recent case law is applied, he may be found to receive enough attention in connection with his bodily function of cognition at school to qualify for some award of the care component, particularly if these needs are aggregated with other attention needs.”
Secondly, Judge Lane holds that the FTT failed to recognise that the attention a claimant needed in connection with bodily functions when outdoors, and a need for supervision or guidance when walking outdoors for the purpose of the lower rate of the mobility component, are not mutually exclusive (citing R(DLA)4/01):
“In this case, the FTT wrongly decided that D’s absences when walking outdoors were only relevant to whether he qualified for the lower rate of the mobility component. Since D was too young to qualify for that, the FTT looked no further. That was not right. Attention in connection with bodily functions may arise indoors or outdoors, and whilst walking or involved with some other outdoor activity.
If that attention also amounts to supervision or guidance, it will also count for the lower rate of the mobility component. So, if D needed to be tapped on the nose during an absence whilst playing outdoors, that action could count as attention with a bodily function of cognition for the purposes of the care component, though it would not seem to amount to guidance or supervision for the purposes of the lower rate of the mobility component. On the other hand, tapping a child on the nose during an absence to stop him getting run over by a car on the road might be seen as both.”
Thirdly, the appellant’s evidence was that D (aged 4 at the material time) suffered from faecal incontinence at night even more frequently than during the day. This meant that he would have been having accidents at least 4 – 8 times every night. The appellant said D needed help changing himself and his bedding every time.
However, the FTT essentially asked itself ‘what four year old wouldn’t need that help?’. Highlighting its error, Judge Lane says that -
“By basing its decision on the view that all under-5s would need help with cleaning and changing themselves and their bedding during the night, the Tribunal missed the main point, which is that only a very small percentage of children of this age are faecally incontinent.
The real question to ask was whether the child’s requirements arising from his faecal incontinence at night were substantially in excess of those of ‘normal’ children his own age or were substantial requirements normally seen in younger children.
The Secretary of State agrees that the FTT did indeed miss the main point. ‘The cause of the pro9blem – the faecal incontinence – is what makes this substantially in excess’, not the actual changing of the clothes/bedding itself. “
Finally, Judge Lane issues a reminder to First-tier Tribunal of the power to make advance awards where the conditions of regulation 13A(1) of the Social Security (Claims and Payments) Regulations 1987 are satisfied. This regulation allows a Tribunal to make an award even though the claimant does not satisfy the conditions of entitlement on the date on which the claim is made, if he will satisfy those requirements beginning on a day…not more than 3 months after the date on which the claim is made.
While D was 4 years and 7 months old when the claim was made, so the FTT was correct in deciding that an award was not possible, tribunals should bear in mind the advance award provisions where it is clear that claimants shall meet the conditions of entitlement within the 3 month period.
Employment and support allowance
Alhashem v The Secretary of State for Work and Pensions [2016] EWCA Civ 395: ESA is a ‘social assistance’ and not a ‘labour market-related benefit’
Court of Appeal April, 2016
The claimant was a Dutch citizen and had been living in the UK since 2010. She was at first awarded job seeker's allowance (JSA), but this ended because she was unable to sign on for work because of ill health. She then applied for employment and support allowance (ESA).
However, her claim was refused on the basis that she did not have the right to reside in the UK. She appealed on the claimed that it was not permissible under EU law to deny access to benefits intended to facilitate access to the labour market to someone who had the right to reside as a job seeker, so that ESA had to be made available to jobseekers in the UK who met the financial conditions for eligibility.
But both the First Tier Tribunal and Upper Tribunal refused her appeal.
In considering the purpose of ESA, the Court of Appeal says that:
“It is clear from the history of ESA that it is primarily provided for those who cannot work or who are on the borderlines due to some disability or past episode in their lives. Some of these claimants will in future be able to work, and a further aim of the benefit is to provide facilities which will enable them to do so.
That is at least partly a question of social policy inspired by an aim of treating individuals affected by disability with dignity and helping them to realise their maximum potential. But facilitating an entry into work is not the predominant function of the benefit.
The statistics as to the percentage of claimants in the Support Group receiving ESA (64% of the 74% of claimants found to have valid claims) makes it impossible to conclude that the predominant function of ESA is to facilitate access to the labour market.
That means that roughly 87% of those eligible for ESA are put into the Support Group: they are treated as having limited capability to do both work and work-related activity. Neither claimants in the WCA group nor those in the Support Group are required to do any work-related activity for the reason that their assessed or potential capability for work-related activity is recognised to be limited. It makes no sense to treat the benefit paid to them as intended to facilitate access into the labour market. “
The rationale of the EU law requirement that nationals of other member states participate equally in benefits paid to facilitate access to the labour market is to support the internal market by putting job seekers from other member states on an equal footing with those resident within the member state where they seek to work.
It is not to put those with limited capability to work into the same position as regards training and preparation for work as those in different member states. The fact that an aim of ESA is to help some people back into work where possible at some future point in time cannot therefore convert ESA into a labour market-related benefit … “
In upholding the decision to refuse the claimant ESA, the Court of Appeal concludes as follows.
“EU law makes a distinction between "social assistance" and benefits paid to enable a job seeker's integration into the labour market ("labour market-related benefits"). EU law requires the latter only to be made available to job seekers who are EU citizens coming from other member states and meet the financial conditions for eligibility.
In Case C-67/14, Jobcenter Berlin Neukolln v Alimanovic, the CJEU stated the test for identifying the category into which a benefit falls: the test is whether the function of the benefit is "predominantly" for facilitating access to the job market.
If this is met, the benefit is a labour market-related benefit. This category does not include benefits paid to provide welfare for persons with a disability who cannot, or cannot yet, work to enable them to subsist. EU law thus recognises that, unless the liability of a state paying non-contributory benefits is restricted by an appropriate test, a state which pays generous benefits may be the subject of "benefits tourism", where persons move to that state to take advantage of non-contributory benefits.
Applying that test to the facts, ESA is social assistance and not a labour market-related benefit. ESA is for claimants who are unable to access the labour market. As a condition of receiving the benefit, claimants may have to undertake work-related activity in order to help them get fit for work. But that does not make ESA a benefit that is intended to facilitate access to the labour market in the sense of EU law.”
CE/1867/2015: Regulation 35 (severe risk to health): Consideration of mental health and risk
Upper Tribunal Judge: Williams
The appellant had requested to be moved from the work related activity to the support group on the grounds that his health had deteriorated.
A healthcare professional (HCP) identified that he had three main medical conditions: anxiety and depression; bladder incontinence; and tinnitus in both ears.
Also that he was unable to get to a specified place with which he was familiar without being accompanied by another person and that engagement in social contact with someone unfamiliar to the claimant was not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the appellant.
However, a decision was then made that he should remain in the work related activity group (scoring 9 points for getting about (15(b)) and 6 points for coping socially (16(c)).
A First Tier Tribunal dismissed the appellant’s appeal and he appealed to the Upper Tribunal.
In giving his decision, Upper Tribunal Judge Williams consider in detail the obligations imposed by the three judge panel in IM v. Secretary of State for Work and Pensions [2014] UKUT 412 (AAC) (“IM”).
He sets out as legislation relevant to the appeal as follows.
Regulation 35(2) of the Employment and Support Allowance Regulations 2008 provides that:
“(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if -
(a) the claimant suffers from some specific disease or bodily or mental disablement; and
(b) by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.
Work-related activity is defined in section 13(7) of the Welfare Reform Act 2007 (WRA) as: “activity which makes it more likely that the person will obtain or remain in work or be able to do so”.
Regulation 3 of the 2011 Employment and Support Allowance Regulations provides for a requirement to undertake work-related activity.
(3)(1) the Secretary of State may require a person who satisfies the requirements in paragraph (2) to undertake work-related activity as a condition of continuing to be entitled to the full amount of employment and support allowance payable to that person.
(4) a requirement imposed under paragraph (1) –
must be reasonable in the view of the Secretary of State, having regard to the person circumstances; and
may not require the person to –
apply for a job or undertake work, whether as an employee or otherwise; or undergo medical treatment.
Upper Tribunal Judge Williams first outlines that the Three Judge Panel in IM observed that:
“The purpose underlying regulation 35(2) requires that those applying it make predictions about the consequences to the particular claimant of him being found not to have limited capability for work-related activity...”
…what the Secretary of State can and should provide is evidence of the types of work related activity available in each area and by reference thereto what the particular claimant may be required to undertake and those which he considers would be reasonable for the provider to require the claimant to undertake. The First-tier Tribunal would then be in a position to assess the relevant risks.
…where there turns out to be a serious argument in relation to regulation 35, the provision of the basic information about the more demanding types of work related activity would enable the First-tier Tribunal to make the necessary predictions by reference to possible outcomes for the particular claimant.”
Judge Williams adds that it is consistent with the approach in IM to expect the Secretary of State to give some form of explanation for why he does not anticipate a substantial risk where a decision has been made in relation to regulation 35.
He then comments that since IM the Secretary of State has begun providing evidence of the type of work related activity available in each area, his has often been a somewhat guarded approach by the DWP to commenting upon what the particular claimant may be required to undertake and which activities the Secretary of State considers would be reasonable for the provider to require the claimant to undertake.
In the appellant’s case he says, the HCP advised that the appellant was unable to get to a specified place with which the claimant was familiar without being accompanied and that engagement in social contact with someone unfamiliar to the claimant was not possible for the majority of the time. There was evidence that the appellant had long term, chronic, anxiety and mental health issues. A decision had been made that the appellant had limited capability for work.
Therefore the disputed decision required consideration of what work related activity the appellant could safely do by reference to the work-related activities in his area.
It is for this reason he holds that this appeal must succeed:
“The more general, unparticularised assertions made by the Secretary of State to the First Tier Tribunal in this matter were inadequate in a case where the appellant could be considered a vulnerable adult by virtue of his mental health. There was a serious argument in relation to regulation 35, and so the obligation provided by paragraph 106 of IM arose. Although the First Tier Tribunal attempted valiantly to work around that deficiency, in my view its decision did not sufficiently circumvent the requirements of IM.”
Judge Williams does caution that this is not an obligation that will arise in every case and that It is the potential vulnerability of the appellant which is likely to be central to such considerations:
After considering in detail the evidence of the HCP and that of the appellant Judge Williams holds that he should be placed in the support group on the grounds that Regulation 35(2) is fulfilled.
In concluding remarks, Judge Williams makes this general observation:
“If the Secretary of State can provide a tribunal with the types of work-related activity available in each area after the DM’s decision is made, then it does not appear to me to be overly onerous on the DWP to provide HCP’s with similar information before the decision is made, assuming that is not happening already.
The HCP should then be able to provide a more reasoned statement in relation to regulation 35(2) in appropriate cases; and in turn the decision-maker could make a more informed decision in terms of predicative risk or otherwise, without that function being essentially passed onto the First Tier Tribunal. “
CE/2276/2015: Whether the "carton full of liquid" in descriptors 4(a) and 4(b) is open or closed
Upper Tribunal Judge Wright
The central issue of law with which this appeal is concerned is whether the ½ or one litre carton full of liquid to be picked up and moved under descriptors 4(a) and 4(b) in Schedule 2 the Employment and Support Allowance Regulations 2008 (the “ESA Regs”) is a closed or open carton.
This issue was important in this case because the appellant suffered from a medical condition termed ‘hyperkinetic syndrome’. As described by his GP:
“This involves [the appellant] in having involuntary movements that are obviously out of his control. The movements are unpredictable and he also suffers with anxiety associated with this. This means that clinically his upper limbs can often be out of control….”.
So In the context of the appellant picking up and moving an open carton of full of liquid it was likely that some of the contents of the carton will be spilled and so the exercise of moving such a ½ or one litre carton full of liquid would arguably not be able to be completed successfully (as once placed back down it will no longer be a ½ or one litre carton full of liquid).
Activity 4 in Schedule 2 to the ESA Regs provides as follows.
Activity 4. Picking up and moving or transferring by the use of the upper body and arms.
4(a) Cannot pick up and move a 0.5 litre carton full of liquid.
(Score 15)
4(b) Cannot pick up and move a one litre carton full of liquid. (Score 9)
4(c) Cannot transfer a light but bulky object such as an empty cardboard box. (Score 6)
4(d) None of the above apply. (Score 0)
In considering this appeal, Judge Wright first stresses that in construing the meaning of the words in descriptors 4(a) and 4(b) in regard must be had to the statutory context in which they appear:
“That context, relevantly, starts with section 8(2)(b) of the Welfare Reform Act 2007 and regulation 19(2) and (4) of the ESA Regs, all of which focus on assessing a claimant’s capability to perform the activities in Schedule 2.
What has to be assessed therefore is the appellant’s ability in “picking up and moving or transferring by the use of the upper body and arms”. It is thus the actions of the upper body and arms in picking up and moving or transferring that is the key consideration. The manner in which the activity is completed is not, therefore, directly in issue, as long as it involves something that may be described as “picking up” and then “moving” (or “transferring”). This focus in my judgment militates against consideration also being given to whether the task can be completed without shaking or with a lack of balance.”
In addition, in construing Schedule 2 to the ESA Regs as a whole, and in its different incarnations since 2008, he says that the concern with open objects holding liquid has at all times been located within the activity 5 - “manual dexterity” - an activity which is concerned with the ability to make coordinated hand and finger movements to grasp and manipulate objects.
A second supporting feature he finds is that where the statutory scheme required an object to be “open” then that is (or was) stated in the statutory language:
“By way of contrast with the use of the word “open” in what was descriptor 6(i) in the pre 28 March 2011 version of Schedule 2 to the ESA Regs - “Cannot pour from an open 0.5 litre carton full of liquid” – the descriptors covering picking up and moving a ½ or 1 litre carton full of liquid do not use, and have never used (even at the time when they appeared in Schedule 2 with descriptor 6(i)), the word “open”. From this it is to be inferred, in my judgment, as matter of statutory construction that the absence the word “open” in descriptors 4(a) and 4(b) is deliberate and shows that the carton is closed.”
Finally, Judge Wright considers the issue of ordinary language usage:
“Ordinarily I would suggest that a carton of liquid is a container for storing the liquid and therefore, as a general starting point, would not be open. If it was an open container of liquid then a word such as “jug” or “cup” would be more appropriate. It seems to me, therefore, that as a matter of the ordinary use of language (and there can be no sensible argument that the words “carton full of liquid” is being used in any technical, non-ordinary sense), a carton full of liquid would normally be understood as meaning an object which is closed. It is not, therefore, a word which in ordinary usage would need to be qualified by the use of the word ‘closed’.”
Judge Wright therefore holds that the tribunal did not err in law in discounting spilling when assessing the appellant’s ability to pick up and move the cartons full of liquid under activity 4.
CE/2611/2015: Whether the claimant failed to "submit" to a medical examination
Upper Tribunal Judge: Mitchell
Mr H, who had an ESA award was asked to attend a medical examination, on 10th March 2015. Beforehand, he made a request for the examination to be recorded.
Mr H attended an examination centre and said this then happened:
- he met the healthcare professional assigned to his case and was asked to sign an audio-recording agreement;
- he started to read the agreement but could not “take in” its contents so he signed the agreement but also wrote “unread” on the form. He has anxiety and depression and does not deal well with the unexpected. The agreement was, he felt, sprung on him and he became flustered and unable to process its contents;
- the healthcare professional sought a supervisor’s advice and then informed Mr H that his ‘agreement’ was not acceptable. The healthcare professional told Mr H that he could take the agreement away to read in his own time and, if he wished, take advice;
- the healthcare professional told Mr H that, if he took the agreement away to read, a fresh medical examination “would be arranged”;
- Mr H was unable to commit to a fresh examination date there and then because he did not have his diary with him. He was told he would receive a new appointment letter in the post.
In his appeal form, Mr H wrote that he had by then read the agreement and was “happy” to sign it but, in the circumstances described above, he felt he had good cause for acting as he did at the examination centre.
The healthcare professional’s written account of what happened bore many similarities to Mr H’s account although she tended to say that he was aggressive when he said he was distressed.
Regulation 23(2) of the ESA Regulations 2008 provides that “where a claimant fails without good cause to attend for or to submit to an examination…the claimant is to be treated as not having limited capability for work” (one of the basic conditions for ESA).
This effectively imposes two requirements, to attend for an examination, and to submit to an examination.
Regulation 24 of the ESA Regulations specifies certain matters that must be taken into account in determining whether a claimant has good cause for the purposes of regulation 23.
This does not prevent other matters from being taken into account as is shown by regulation 24 stating that the matters to be taken into account “include” the specified matters. The specified matters are:
“(a) whether the claimant was outside Great Britain at the relevant time;
(b) the claimant's state of health at the relevant time.
(c) the nature of any disability the claimant has.”
The Secretary of State decided that, in his words, Mr H had “failed to participate or take part with a medical examination” so that under regulation 23(2) he was treated as not having limited capability for work.
In dismissing his appeal, the First Tier Tribunal dismissed Mr. H’s appeal and directed itself that a key issue was when the examination ended. If it ended before, or upon, the offer to re-arrange another examination, Mr H could not be said to have failed to participate in the examination. However, the Tribunal concluded that the examination did not end at that point:
“The Tribunal decided that the examination was still ongoing, that his behaviour at the centre was unacceptable and that the interviewer was entitled to terminate the appointment, the effect being that Mr [H] fails to participate in the examination.
… Members of staff at medical examination centres are entitled to work without the fear of physical or verbal abuse. Mr [H’s] behaviour at the centre does not constitute good cause for his failure to participate in the examination.”
Upper Tribunal Judge Mitchell allows Mr H’s appeal and sets aside the First-tier Tribunal’s decision.
He holds that the Tribunal did not give adequate reasons for its finding that the examination was ongoing even though Mr H had left the examination room and re-entered the waiting area. No reasons were given for the Tribunal’s adoption of this strained interpretation of “examination”.
Judge Mitchell also finds that the tribunal did not in fact apply the correct law.
He says that the appeal was presented to the First-tier Tribunal on the basis that the issue to resolve was whether Mr H failed without good cause to “participate” in the medical examination.
However, he holds that is not the legal test:
“Regulation 23(2) of the ESA Regulations deems a person not to have limited capability for work if, without good cause, the person does either of the following:
(a) fails to “attend for” a medical examination;
(b) fails to “submit to” a medical examination.
To put it in more everyday turns, (a) refers to a person who fails to turn up for an examination of which s/he has been duly notified and (b) refers to a person who fails to co-operate with the examination process so as to thwart its purpose.
The concept of “participating” in an examination does not feature in regulation 23 of the ESA Regulations 2008 (it is though found in various regulations imposing conditions on Jobseeker’s Allowance claimants).
While the concepts of participating in a medical examination and submitting to an examination are related, they are not necessarily synonymous. The First-tier Tribunal should have asked itself whether Mr H had submitted to a medical examination (it is clear he did attend for an examination).”
Judge Mitchell finds that once a medical examination has been abandoned or cancelled, an individual’s conduct after that point cannot amount to him/her failing to submit to an examination:
“I do not think that conduct within the examination room, and only in that room, is all that can be taken into account in deciding whether a person has failed to submit to a medical examination. Once a decision has been taken not to proceed with or to abandon an examination, I do not see how a claimant’s subsequent actions can amount to him/her failing to submit to a medical examination. There is nothing left to submit to.
The remaining question in such cases is whether the decision not to proceed with or to abandon the examination can be attributed to the claimant such that s/he can properly be said to have failed to submit to the examination. This opens a door to questions of reasonableness, a concept that is closely allied to “good cause” which of course becomes relevant once it has been determined that a person failed to submit to an examination. I do not think that is objectionable, it is simply a consequence of the nature of a failure to “submit”.
On this case’s undisputed facts, Mr H’s medical examination did not begin. The evidence cannot support a contrary finding. The planned medical examination was abandoned or cancelled once it became clear to the healthcare professional that Mr H would not, on the day, complete the audio-recording form in the way the centre’s management thought he should.”
On this appeal’s undisputed facts, Judge Mitchell concludes that there is only decision that can properly be made. Mr H did not fail to submit to a medical examination.
CE/3255/2015: If a claimant undertakes a journey by taxi, is that claimant "accompanied" by the taxi driver?"
Upper Tribunal Judge: Hemingway
The appellant suffered from health problems which include back pain, asthma, anxiety, depression, and pain in his left leg and left foot.
In considering his appeal, the First Tier Tribunal concluded that in his case descriptor 15(c) in Schedule 2 was not satisfied simply because the appellant was able to get to an unfamiliar place by using a taxi.
The relevant activity and descriptor are as follows:
|
Activity 15. Getting about. |
Descriptors 15. (a) … (b) … (c) Is unable to get to a specified place with which the claimant is unfamiliar without being accompanied by another person.” |
In considering the claimant’s further appeal, Judge Hemingway holds that The basic question posed by descriptor 15(c) is whether a claimant is unable, in consequence of difficulties with mental, cognitive and intellectual function (because this is a mental health descriptor), to get to an unfamiliar place without being accompanied by another person.
He adds that in this context it is worth considering why a person might want to or might need to undertake a journey by taxi as opposed to by another means such as walking:
“Such a person might be prone, because of difficulties with cognitive or intellectual function, to getting lost. Such a person might be very nervous of crowds or even small groups of people such that he/she would not want to be in a position where such crowds or groups might be encountered. Such a person might have a fear of open spaces. At the opposite end of the spectrum a person might simply prefer to ride in a taxi due to indolence. “
Judge Hemingway finds that the answer lies in looking at the situation from the perspective of the relevant claimant taking into account the particular mental health problems which are said to create the difficulties in getting about.
He then provides the following guidance:
"If a claimant suffers from anxiety such that he would not be able to undertake the journey on foot but would be sufficiently reassured by the mere presence of someone else in a vehicle with him, then such a taxi journey would be “accompanied” because, even if the claimant and the taxi driver did not interact by way of discourse, the presence of the taxi driver would be a significant contributory factor to that claimant’s ability to make that journey.
If a claimant would otherwise get lost, the taxi journey is an accompanied one because the taxi driver is acting as the claimant’s navigator and, again, making a significant contribution to the ability of the claimant to make the journey.
If a claimant cannot face crowds in open spaces then the taxi driver is ensuring he is not put into a situation where he has to do so and, therefore, once again, is playing a significant role in the completion of the journey.
Put another way, if a claimant can only undertake a journey to an unfamiliar place by taxi because of a requirement of undertaking the journey in the presence of another person or because the assistance of that other person is required, then that journey is, for the purposes of the relevant descriptor, an accompanied one.”
As this was not the approach taken by the First Tier Tribunal Judge Hemingway sets aside its decision and remits the appeal for rehearing.
CE/62/2016: Failure to submit to a medical examination
Benefit: ESA
Upper Tribunal Judge: Hemingway
A Healthcare Professional maintained that on confirming to the claimant that she was a physiotherapist, he continued to ask questions in a manner which made her feel uncomfortable and, in consequence, she requested a chaperone.
However, after the chaperone arrived the claimant continued to ask questions as to whether she was on the UK register for physiotherapy and when it was that she had qualified. She stated that he was making notes and his manner continued to make her uncomfortable and the chaperone decided that the assessment would have to be abandoned.
The appellant however maintained that his requests for information were all reasonable and legitimate and were “temperately expressed”.
The claimant appealed against a subsequent decision that he had failed to submit to a medical examination for the purposes of regulation 23 of the ESA Regulations 2008 without good cause.
However, a First Tier Tribunal dismissed his appeal holding that it accepted the evidence of the Healthcare Professional.
In also dismissing the claimant’s appeal, Judge Hemingway holds that what the tribunal found had occurred was conduct which it was open to it to regard as constituting a failure to submit.
In doing so he discusses what behaviour might amount to failure to submit to a medical examination:
“As a matter of common-sense if a claimant attends the examination centre but then says, without reasonable excuse, that he does not consent to being examined he is failing to submit.
Here, though, the appellant did not say, outright, that he was refusing to be examined. Nevertheless, he was laying down conditions. That raises the question of whether such conditions are reasonable.
I would agree with the tribunal that a person who is being medically examined is, ordinarily, entitled to know the name of the person examining him (though security concerns may point to that not being so in a particular case), and that person’s professional qualification (that is to say whether the person is, for example, a physiotherapist, an occupational therapist, a registered nurse or a doctor). I note here that such information will usually be contained within the subsequently produced report in any event.
I also note that according to regulation 2 of the Employment and Support Allowance Regulations 2008 the term “healthcare professional” is defined as being one of those types of medical professional.
… I would also take the view that a claimant is entitled to know that a person examining him is authorised to do so for the purposes of the assessment of his entitlement to benefit, in other words, that the person has been properly appointed though it might be thought there would be little doubt about that anyway."
However, according to his own evidence the appellant was demanding to know more than that. He was not prepared to consent to the examination until he did know more than that.
"… It seems to me that, given my acceptance that, as a matter of law, a person can fail to submit by imposing unreasonable conditions and given the tribunal’s findings it was clearly open to it to conclude that the additional information he was seeking, as a condition of allowing the examination to proceed, was being unreasonably required and did amount to a failure to submit.
He already knew he was to be examined by a person whose name he was aware of and he knew that she was qualified as a registered general nurse. He also knew that she was authorised to carry out the examination for the purpose for which it was required. That ought to have been sufficient to reassure him as to any genuine concerns he might have had.
It was open to the tribunal to conclude his insistence on more than that, even absent the intimidating behaviour it found him guilty of, amounted to a failure to submit.”
CE/3139/2015: Activity 7 (Understanding Communication): claimant needs to be impaired in understanding either spoken or written communication but not both
Benefit: ESA
Upper Tribunal Judge: Ward
The claimant was partially sighted but had no hearing difficulty.
A First-tier Tribunal concluded that she met descriptor 8(a) in schedule 2 - “Unable to navigate around familiar surroundings, without being accompanied by another person, due to sensory impairment.”
However, it found that she did not also meet descriptor 7(a) of schedule 2 and, importantly for present purposes, descriptor 7 of schedule 3, which stipulates “cannot understand a simple message, such as the location of a fire escape due to sensory impairment.”
The relevant activity is:
“Understanding communication by:
(i) verbal means (such as hearing or lip reading) alone,
(ii) non-verbal means (such as reading 16 point print or Braille) alone, or
(iii) a combination of (i) and (ii),
using any aid that is normally, or could reasonably be, used, unaided by another person.”
The tribunal said:
“It was the Tribunal’s view when considering the terms of the descriptor that although this could be satisfied by a mixture of hearing and visual problems, this is not required by the descriptor which refers to verbal means alone, non-verbal means alone, or a combination. It was accordingly the Tribunal’s view that [the claimant] did not satisfy this descriptor in Schedule 2 or Schedule 3.”
However, in setting aside the tribunal’s decision and placing the claimant in the support group, Judge Ward accepts the conclusions of Judge Markus in reported decision [2016] AACR 8.
In that decision Judge Markus considers the wording of the statutory provisions and looks at evidence concerning the legislative intention behind them provided by the DWP's Deputy Chief Medical Officer before concluding -
“It is clear from all the materials that the legislative intention since ESA was introduced has been that in order to qualify under a relevant descriptor a claimant need be impaired in either hearing or vision (but not both) or, as amended, in understanding either spoken or written communication (but not both).”
While Judge Markus’ findings on the current version of both WCA activities were ‘obiter’, Judge Ward holds that they also apply to the current versions.
CH/454/2015: Bedroom tax: housing legislation relating to overcrowding cannot be considered
Upper Tribunal Judge: Lloyd-Davies
The local authority decided that the claimant was under‑occupying his social sector rented accommodation by one bedroom and that the HB payable should be reduced by 14% under regulation B13 of the HB Regulations 2006 (the bedroom tax).
A tribunal allowed his appeal finding that the room could not be classified as a bedroom. It found that the room in had a square footage of about 63 sq. ft. with a sloping ceiling that reduced its usable space considerably;
The local authority appealed to the Upper Tribunal.
The claimant submitted that the decision in Nelson (CSH 41 2014) did not take into account the provisions of the (English) Housing Act 2004, the Housing Health and Safety Rating System established under that Act or the guidance given by LACORS (Local Authorities Coordinators of Regulatory Services) insofar as they dealt with space and overcrowding, and therefore that Nelson should not be followed .
However, Upper Tribunal Judge dismissed this argument as Nelson heldthat legislation relating to space and overcrowding is not to be read across into HB legislation relating to under‑occupation.
In addition, nowhere in the Housing Act 2004 or in the operating guidance and enforcement guidance given under section 9 of the 2004 Act in relation to space and overcrowding is there any mention of specific room sizes.
Judge Lloyd-Davies upholds the local authority’s appeal and sets the tribunal’s decision aside as not prescribed by Nelson it -
- the tribunal clearly took into account the use of the room as a store room at the date of the decision;
- it solely considered whether the room in question could be used by an adult; and
- it took into account legislation relating to overcrowding.
The new tribunal, he says, must adhere to Nelson and should consider if the room should be capable of accommodating a single adult bed, a bedside table and somewhere to store clothes as well as providing space for dressing and undressing.
Reilly and Hewstone v Secretary of State for Work and Pensions: Retrospective use of Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 and rights to challenge
This is one of series of court decisions concerning the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations (2011/917) and their aftermath which were quashed as unlawful. The 2013 regulations replaced them and are applied retrospectively. This Court of Appeal decision considered whether the regulations were unlawful and whether claimants could still reclaim any benefit lost as a result of an earlier sanction. Read our full summary and view the decision
CSJSA/15/2016: The meaning of “compelling evidence" in regulation 6(7) of the Immigration (EEA) Regulations 2006 is no more than the civil standard of proof (on the balance of probabilities)
Benefit: JSA
Upper Tribunal Judge Agnew
Upper Tribunal Judge Agnew considers the validity of the requirement that a worker or jobseeker after the “relevant period” has to provide “compelling evidence” to satisfy the GPOW test.
Regulation 6(7) of The Immigration (European Economic Area) Regulations 2006 (the “EEA Regulations”) provides:
“6(7) A person may not retain the status of a worker pursuant to paragraph (2)(b), or jobseeker pursuant to paragraph (1)(a), for longer than the relevant period unless he can provide compelling evidence that he is continuing to seek employment and has a genuine chance of being engaged.”
He decides
“… I interpret “compelling evidence” to be no more than the requirement for evidence to establish on a balance of probabilities that the claimant is continuing to seek employment and that he has genuine chances of being engaged.
I read “compelling” to mean no more than in the context of the circumstances that have arisen i.e. that the claimant has not been able to obtain employment during the relevant period that the onus is on the claimant and having regard to the circumstances of the case the judge considering the matter is entitled to decide the weight and quality of evidence required to establish that the claimant is continuing to seek employment and has genuine chances of being engaged.”
CPIP/1671/2015: A risk that gives rise to a need for supervision need not be a risk that is unique to particular activity - a general risk is sufficient (provided that the requirement of a particular descriptor are satisfied)
Upper Tribunal Judge: Jacobs
The main issues on the appeal concern the First-tier Tribunal’s application and interpretation of Activity 3 in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (SI No 377):
Managing therapy or monitoring a health condition Activity 3
a Either
(i) does not receive medication or therapy or need to monitor a health condition; or
(ii) can manage medication or therapy or monitor a health condition unaided. Score 0
b Needs either
(i) to use an aid or appliance to be able to manage medication; or
(ii) supervision, prompting or assistance to be able to manage medication or monitor a health condition. Score 1
c Needs supervision, prompting or assistance to be able to manage therapy that takes no more than 3.5 hours a week. Score 2
d Needs supervision, prompting or assistance to be able to manage therapy that takes more than 3.5 but no more than 7 hours a week.
Score 4
e Needs supervision, prompting or assistance to be able to manage therapy that takes more than 7 but no more than 14 hours a week.
Score 6
f Needs supervision, prompting or assistance to be able to manage therapy that takes more than 14 hours a week. Score 8
The tribunal had found that Activity 3 descriptor f applied, and stated that:
“The Health Care Professional has completely failed to understand the condition, angioedema, from which the [the claimant] suffers, the life-threatening risk to which that condition gives rise and the level of supervision reasonably required to keep [him] alive.”
Based on the claimant’s evidence, supported by hospital evidence, the tribunal found that the claimant had been admitted to hospital about 150 times in 2012 and about 100 times in 2013. By the hearing on 22 May 2014, he had been admitted 47 that year.
The tribunal explained the claimant’s condition and its effects:
“Angioedema is a swelling of the deeper layers of the skin. In [the claimant’s] case it is associated with laryngeal spasm. What happens is that the tissues of [his] throat swell up and cut off the air supply to his lungs causing him to pass out. When he gets a warning that this is going to happen, he can use his epipen to administer adrenaline which helps but he also needs medical assistance. Often he gets no warning and simply passes out, in which case it is obviously not possible for him to administer his own medicine.”
In support of its conclusion on Activity 3, the tribunal wrote:
“There being no doubt that it has been recommended by a registered doctor, we consider that the administration of adrenaline on an emergency basis by another person amounts to ‘therapy’ as so defined. It follows from our approach that [the claimant] needs supervision … to manage that therapy. As such supervision takes more than 14 hours a week (because it is reasonably required the whole time), [he] scores 8 points for Descriptor 3f.”
The Secretary of State submitted that the tribunal had made an error of law in it had taken account of time devoted to supervision in order to deal with the risk of the claimant’s condition. That was wrong, because descriptors c to f only applied to managing therapy. The claimant needed assistance to manage his therapy, but not supervision to do so ‘the whole time’.
The Secretary of State also submitted that only therapy undertaken at home could be counted, not therapy administered by medical professionals during hospital admissions.
In addressing these submissions, Upper Tribunal Judge Jacobs highlights that he dealt with dealt with the first issue in CPIP/1882/2015 and held that the time periods in descriptors c to f qualify ‘supervision, prompting or assistance’, not ‘therapy’:
“The whole structure of the activities and their individual descriptors is based on the nature and extent of the help that the claimant needs. In that context, it is more rational if the number of points is determined by reference to the help needed rather than the therapy for which the help is given.”
In addition, following his approach in CPIP/1882/2015, Judge Jacobs holds that supervision monitoring the claimant’s condition in case of an attack and before any therapy is administered is not within descriptors c to f at all. It can only score points under descriptor b:
Judge Jacobs then goes on to consider of whether the risk that can be taken into account for preparing food or planning and following a journey must be a risk specifically related to that activity.
He is clear that the answer is no:
“A risk that gives rise to a need for supervision need not be a risk that is unique to a particular activity or to the activities in Schedule 1 generally. It is sufficient if it is a general risk, even one that applies when the claimant is doing nothing, provided that the requirements of a particular descriptor are satisfied."
In using the example of preparing food, Judge Jacobs outlines that:
“The issue for the tribunal was whether the claimant had a need for supervision when cooking. If he did, it did not matter whether that need was specifically related to that activity or was a general one that would affect other activities and even exist when the claimant was doing nothing at all. The descriptor was satisfied. This is so whether the other activities affected are within the scope of personal independence payment or not. Many conditions have an effect beyond the particular activities in Schedule 1 and, perhaps, generally. It would be anomalous to exclude them from the scope of personal independence payment”
Judge Jacobs finds that the same applies for all activities, including planning and following journeys.
CPIP/2094/2015: Whether a claimant who cannot do one of the activities of (i) getting in or out of a bath or (ii) getting in or out of a shower can satisfy PIP descriptor 4e.
Upper Tribunal Judge: Rowley
The main issue in this appeal was the interpretation of daily living descriptor 4e: “Needs assistance to be able to get in or out of a bath or shower.”
My conclusion is that the word “or” in the phrase “bath or shower” is used in the disjunctive sense. In other words, if a claimant cannot do one of the activities of (i) getting in or out of a bath or (ii) getting in or out of a shower, they will satisfy the descriptor. I also decide it is a claimant’s ability to get in or out of an unadapted bath or shower that is being assessed.
PIP Activity 4 (Washing and bathing) provides:
|
Activity |
Descriptors |
Points |
|
4.Washing and bathing |
a. Can wash and bathe unaided. |
0 |
|
|
b. Needs to use an aid or appliance to be able to wash or bathe. |
2 |
|
|
c. Needs supervision or prompting to be able to wash or bathe. |
2 |
|
|
d. Needs assistance to be able to wash either their hair or body below the waist. |
2 |
|
|
e. Needs assistance to be able to get in or out of a bath or shower. |
3 |
|
|
f. Needs assistance to be able to wash their body between the shoulders and waist. |
4 |
|
|
g. Cannot wash and bathe at all and needs another person to wash their entire body. |
8 |
So, Descriptor 4e reads: “Needs assistance to be able to get in or out of a bath or shower”.
Upper Tribunal Judge Rowley outlines that if the word “or” above is used in the disjunctive sense, then if a claimant needs assistance to get in or out of just one of a bath or shower, descriptor 4e will be satisfied.
On the other hand, if the word “or” is used in the conjunctive sense, “or” would effectively mean “and.” In those circumstances a claimant would come within the terms of descriptor 4e only if they needed assistance to be able to get in or out of a bath, and needed assistance to be able to get in or out of a shower.
In giving his decision, he says that the starting point is to look at the actual words used:
As a matter of plain English the word “or” is disjunctive. Without more, it is a word ordinarily used to join alternatives. The position may be different if, say, words appearing on either side of “or” render the word capable of also meaning “and.”
… I accordingly conclude that the word “or” is used in descriptor 4e in the disjunctive sense. Accordingly, if a claimant cannot do one of the activities of (i) getting in or out of a bath or (ii) getting in or out of a shower, they will satisfy descriptor 4e.
Judge Rowley then goes on to highlight that there is no express indication in descriptor 4e as to whether the assessment should be of a claimant’s ability to get in or out of an unadapted bath or shower.
While “bathe” is defined in Schedule 1 as: “includes get into or out of an unadapted bath or shower,” but there no reference in descriptor 4e as to whether the bath or shower is an unadapted one. The descriptor simply asserts that claimant must need assistance to be able to get in or out of “a” bath or shower.
In line with the spirit of the activity, Judge Rowley concludes the bath or shower referred to in descriptor 4e must be an unadapted one. It is clear from the description of the activity and definition of “bathe” that the activity in general is assessing the actions involved in a standard bathroom.
He therefore holds that a claimant’s functional abilities should be considered in relation to whether they need assistance to be able to get in or out of an unadapted bath or shower.
Similarly, if a claimant has an adapted bath or shower, the issue to be determined is whether they would need assistance to be able to get in or out of an unadapted bath or shower. I have concluded that this is the appropriate question for two main reasons.
CPIP/2225/2015: Whether the Secretary of State is obligated to supply DLA evidence on a PIP appeal
Upper Tribunal Judge: Mitchell
Mr C had been entitled to DLA comprising of the higher rate of the mobility component and the lowest rate of the care component for an indefinite period.
On 18March 2014, Mr C contacted the DWP. There is a factual dispute as to whether this contact involved Mr C notifying a DLA-related change of circumstances. In response, the DWP invited Mr C to claim PIP which he did.
On 21 August 2014. The Secretary of State decided that Mr C was not entitled to PIP.
Mr C appealed to the First-tier Tribunal. The Tribunal dismissed Mr C’s appeal and determined that he scored 2 daily living points and 4 mobility points but, in both cases, those points were below the 8 point threshold for an award.
Mr C appealed to the Upper Tribunal on grounds that included that the First-tier tribunal should have directed the DWP to supply the evidence on which they previously relied to award him DLA.
However, Upper Tribunal Judge Mitchell holds that the tribunal did not act unfairly by deciding the appeal without DLA evidence:
“The First-tier Tribunal was supplied with a detailed written submission by Mr C’s representative. While this noted Mr C’s DLA award, it did not argue that the DWP ought to have supplied the Tribunal with the evidence on which it relied in awarding Mr C DLA.
In its reasons, the Tribunal noted that it had no evidence connected to Mr C’s DLA award but also stated it had sufficient evidence on which to decide Mr C’s PIP appeal a benefit whose entitlement criteria, noted the Tribunal, differed to those for DLA.
… The Tribunal had before it a detailed claim form, an extensive written submission from Mr C’s representative, the report of the healthcare professional who carried out a face-to-face PIP consultation with Mr C as well as evidence from his G.P.
The Tribunal was concerned with Mr C’s condition in 2014 for the purposes of a benefit with different entitlement conditions than those for DLA. Given the quantity of evidence of direct relevance to Mr C’s more recent difficulties, being evidence that was also directed to the PIP criteria, the Tribunal was not required to direct the DWP to disclose its DLA-related evidence, especially as it was not asked to do so by Mr C’s representative.
Fairness did not require this, nor was the Tribunal required to find that the DWP had failed to comply with its obligation under the First-tier Tribunal’s procedure rules to supply it with all relevant documentary evidence.”
Comment: This is a very disappointing decision. It is quite possible that DLA evidence would be useful in determining an appeal – for example in arguing that someone’s difficulties have increased since they were awarded DLA. If someone has a degenerative condition previous evidence that indicated the level of their mobility or care needs is relevant even if it is several years old.
In this case, Judge Mitchell highlights that the client had been awarded DLA some eight years before. Where someone has had a more recent DLA award it could be argued that DLA evidence has more relevance.
Hopefully this issue will be considered by other Upper Tribunal Judges of a differing opinion. In the meantime, claimants and advisers will need to consider whether to request a copy of DLA evidence if it likely contains evidence supportive of the PIP appeal.
CPIP/2651/2015: Expert evidence not inherently of more value than a claimant’s own / tribunal must explain why an appellant’s evidence is rejected.
Benefit: PIP
Upper Tribunal Judge Paula Gray
While a First Tier Tribunal (FTT) upheld an award of the standard rate of the moving around component of PIP to the claimant, it awarded no rate of the daily living component.
In doing so it accepted the conclusions of the Healthcare Professional’s report over the claimant’s evidence of the extent of her daily living difficulties.
In considering the claimant’s appeal to her, Judge Gray says that the Secretary of State's submission suggested that the chief reason for the FTT adopting the HP report was that it was the only medical evidence available, and that, all else being equal, in a choice between expert evidence and lay evidence, it is not unreasonable to favour the expert evidence.
However, Judge Gray disagrees that as a rule, that expert evidence should generally be preferred to the evidence of an appellant:
“To prefer expert evidence is not inherently unreasonable if that conclusion is formed following a balancing exercise of all the evidence in that particular case.
Citing in her support CE/428/2011, Judge Gray holds that what is impermissible is a blanket assumption that expert evidence will always, or will generally, be of more value than the layperson’s account.
She holds that:
“So often the essence is not so much one of the value of expertise, but the credibility of the appellant’s account.
Whilst there is a need for a link between functional disability and ill-health, the extent to which a particular condition affects somebody is inevitably personal, dependent upon the severity of the condition itself and the ability of the individual to deal with pain or otherwise adapt to their limitations.
Sometimes the adaptation comes with time. Some people never adapt, and will always have limitations. Some people may exaggerate those limitations, consciously or unconsciously.
Whilst evidence of expert opinion may be of value, a tribunal is entitled accept the uncorroborated evidence of an appellant as to their functional impairment and the extent of it rather than the evidence of a healthcare professional which may come to a very different view as to the probable extent of functional difficulty.
Were that not to be so, an appellant in a case such as this where the Secretary of State routinely obtains evidence from a healthcare professional, could never win.”
However, she adds:
“It is, however, open to the tribunal to prefer the healthcare professional’s opinion because of its expertise; such a finding is in general tantamount to saying that the appellant's account of the extent of their disability is not wholly accepted, resulting in the more objective expert evidence being preferred, but a formulaic acceptance of the report of an examining medical practitioner, without consideration of the evidence as a whole, will be an error of law (CIB/3074/2003).
It is insufficient simply to say that the Secretary of State's evidence was against the appellant. In a contested appeal the Secretary of State's evidence will always be against him. The appellant must understand why his contentions about the extent of his functional disability were not accepted.”
Judge Gray also finds that the FTT erred by placing significant weight on the Healthcare Professional’s report without dealing with the criticisms the claimant made of it:
“Had such references been there the appellant would have had an understanding of why the tribunal came to the view that it did; however they were absent, and the very general point which was made as to the "thoroughness" of the report as the reason for its acceptance (regarding matters of both fact and opinion) does not inform the appellant's understanding as to why his contentions were rejected.
It is partly for this reason that is good practice for the FTT not simply to record a general acceptance of the HP report, but rather set out its own findings both generally and where necessary in the context of the descriptors considered (CIB/4232/2007).”
Judge Gray concludes by observing:
“It would not, I think, be unfair to say that this statement of reasons could have been written as a generic statement about any case in which the tribunal agreed with the Secretary of State’s decision where that decision was based upon a healthcare professional’s report. Having described the report as "thorough" the reasoning needs to deal with what it was about the report that made the tribunal form that view of it.”
As a result of the FTT’s errors of law, Judge Gray sets aside its decision and remits the appeal for rehearing by a new tribunal.
CPIP/2819/2015: The interpretation and application of Activity 3 in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (SI No 377): “Managing therapy or monitoring a health condition”.
Judge E. Jacobs
In giving permission to appeal to the Upper Tribunal, Judge Bano said:
“I am giving permission to appeal so that consideration can be given to how PIP Activity 3 should be applied to someone in the claimant’s position - what descriptor should be applied to a person who needs continual supervision to monitor their health condition but who does not normally need any significant help in connection with therapy or medication?”
In his claim for PIP, the claimant set out the difficulties he experienced as a result of his paranoid schizophrenia and on Activity 3 and wrote:
“I am in a 24-hour staffed care home so that my mental state is be continuously assessed.
Prolonged failure to take medication renders me prone to paranoia and hallucinations.”
A health professional interviewed and examined the claimant. In her opinion, descriptor 3(b) applied:
“Needs either-
(i) to use an aid or appliance to be able to manage medication;
or
(ii) supervision, prompting or assistance to be able to manage medication or monitor a health condition.”
She reasoned that:
“Due to his medical condition and level of input it is reasonable to expect that supervision would be required to manage his health condition and this is supported by him currently living in a 24 hour care home soon to be moving to supported living.”
The decision-maker accept the health professional’s opinion. As Activity 3b was the only descriptor that applied, the decision-maker refused the claim in October 2014.
The claimant exercised his right of appeal to the First-tier Tribunal. The tribunal confirmed the 1 point for Activity 3b, and added a further two points for Activity 10b, making a total of 3. As that did not reach the minimum threshold of 8 points for the daily living component at the standard rate, the tribunal dismissed the appeal.
On Activity 3, the tribunal accepted that the main function of the care home was to monitor his condition and make sure there were no signs of deterioration. Someone knocked on his door twice a day to check on him. He managed his own medication and had a review of his care plan every 6 months. He was not receiving therapy that required supervision for more than 3½ hours a week.
In considering the claimant’s further appeal, Judge Jacobs holds that there is no doubt that the claimant satisfied descriptor b on the basis that he needed some form of help (whether supervision, prompting or assistance) to monitor his health condition, adding:
“It is impossible to read monitoring a health condition into any other descriptor. It is not mentioned. The language of the descriptors and the terms of the definitions distinguish between this and managing medication or therapy. If the claimant is to score more points for Activity 3, this can only be done on the basis that he needs help to manage therapy.”
The claimant’s representative argued that the assistance the claimant required could properly be classified as therapy as:
- he was placed in supported and supervised accommodation;
- he was well and living in the community because of the support he received;
- Staff gave him his medication; and
- they helped with his daily life to keep his stress levels to a minimum.
She also relied on DWP guidance, which refers to safety and to the risk of deterioration that can arise from a failure to carry out therapy.
While Judge Jacobs says that this 2is an ingenious argument” he does not accept it:
“It is necessary to start with the facts. What is it that the staff do for the claimant? I accept what the representative says, but the question is whether that is therapy. There is no definition of what ‘therapy’ involves. No doubt that reflects the many and varied forms that it may take. But I do not accept that keeping an eye on the claimant to spot deterioration and the support provided with his general living to help keep him free from stress amounts to therapy. It is support, certainly, and important support that has proved effective, but it is not therapy.
Therapy may be difficult to define with precision, but it is a concept that has limits. There are many things that are beneficial for a claimant that are not therapy. A job, for example, may help a claimant socialise and develop self-esteem. It might even be described as therapeutic. But it would not generally be properly described as therapy.
Something more than a beneficial effect is necessary. I do not propose to lay down what would or might be sufficient to amount to therapy. It is sufficient to say that the evidence in this case does not contain it.”
He concludes by accepting that Judge Bano’s concern is understandable against the background of the change from disability living allowance to personal independence payment for those of working age.
One condition of entitlement to disability living allowance was that the claimant reasonably required “continual supervision throughout the day in order to avoid substantial danger to himself or others” (section 72((1)(b)(ii) of the Social Security Contributions and Benefits Act 1992).
However, he finds that there are a number of differences between that provision and Activity 3.
“First, continual, the word used for disability living allowance, is not the same as continuous, the word used for personal independence payment: see R(A) 1/72. The tribunal’s findings show that the supervision in the care home was not continuous. Staff were present throughout the day and night, they could be called on if required, they checked on the claimant at regular intervals, and they provided general support with daily living. That is based on the oral evidence at the hearing. But even taken together, it is not continuous.
Second, even if the availability of the staff could amount to supervision in a general sense, supervision as defined for the purposes of personal independence payment requires presence. That is a demanding requirement, which was not satisfied on the evidence. The claimant was largely left to his own devices. I do not need to decide what degree of proximity is required for presence, but the mere availability of staff in the care home is not sufficient in the circumstances of this case to amount to presence.
Third, unlike disability living allowance, personal independence payment contains precise time requirements for descriptors c to f. And those time requirements only apply to managing therapy. Even if the medication is therapy, the evidence does not support a finding that help is required for a minimum of 3.5 hours a week.”
In brief he therefore finds that the answer to the question posed by Judge Bano in his grant of permission is that only descriptor b applies to someone in the claimant’s position.
CPIP/2559/2015: Overlap between descriptor 7 (communicating verbally) and descriptor (engaging with other people)?
Upper Tribunal Judge: Rowley
The claimant had permanent and severe bilateral hearing loss. She lip-read and wore bilateral hearing aids. Her application for PIP was refused as the decision maker having awarded only 6 points (4 points under descriptor 7c (“needs communication support to be able to express or understand complex verbal information”), and 2 points under descriptor 9b (“needs prompting to be able to engage with other people”)).
The claimant appealed arguing that she satisfied descriptor 9c (“needs social support to be able to engage with other people”).
However, the tribunal refused the appeal and confirmed the point awarded by the decision maker and she appealed to the Upper Tribunal.
Activities 7 and 9 are as follows:
|
Column 1 Activity |
Column 2 Descriptors |
Column 3 Points |
|
7. Communicating verbally |
a. Can express and understand verbal information unaided. |
0 |
|
|
b. Needs to use an aid or appliance to be able to speak or hear. |
2 |
|
|
c. Needs communication support to be able to express or understand complex verbal information. |
4 |
|
|
d. Needs communication support to be able to express or understand basic verbal information. |
8 |
|
|
e. Cannot express or understand verbal information at all even with communication support. |
12 |
“Communication support” means “support from a person trained or experienced in communicating with people with specific communication needs, including interpreting verbal information into a non-verbal form and vice versa” (paragraph 1 of Part 1 of Schedule 1 to the Regulations).
|
Column 1 Activity |
Column 2 Descriptors |
Column 3 Points |
|
9. Engaging with other people face to face |
a. Can engage with other people unaided |
0 |
|
|
b. Needs prompting to be able to engage with other people. |
2 |
|
|
c. Needs social support to be able to engage with other people |
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.
|
8 |
Paragraph 1 of Part 1 of Schedule 1 to the Regulations contains some relevant definitions:
“Engage socially” means: “(a) interact with others in a contextually and socially appropriate manner; (b) understand body language; and (c) establish relationships.”
“Prompting” means: “reminding, encouraging or explaining by another person.”
“Social support” means: “support from a person trained or experienced in assisting people to engage in social situations.”
In considering this Judge Rowley holds that there is no limit to the type of impairment which limits a person’s ability to engage with other people face to face:
“Thus, for example, activity 9 may fall to be considered in respect of a claimant whose physical impairment (hearing loss) causes communication difficulties, and who is, as a result, anxious about meeting other people and being in social situations. In general terms, those were the circumstances in this case.”
He then considers the issue of what, if any, is the overlap between descriptors 7 and 9?
Judge Rowley holds that:
“There is nothing in the legislation to suggest that an individual who is having difficulty when in conversation with others, and who is simultaneously “communicating verbally” and “engaging with others face to face”, is unable to score under both activity 7 and activity 9. In each case the decision maker or tribunal will have to investigate the nature and occurrences of the difficulties in order to establish the difference.”
He also confirms that there is no limit to the type of impairment which limits a person’s ability to engage with other people face to face.
However he adds that there is no ‘automatic’ link between scoring under descriptor 7c and descriptor 9c:
“A claimant will not necessarily always score under 9c as a result of scoring under 7c. Nonetheless, scoring under activity 7c is capable of being relevant to scoring under 9c. An individual who needs “communication support” may well need “social support” to engage face to face. But not always.
By way of example, a claimant may be a deaf person who needs a sign language interpreter with them in order to communicate. They accordingly need “communication support” under activity 7. However, they are completely comfortable in a social environment, and are able to make friends and lead an active social life. They do not satisfy 9c, for they are able to engage with others more than adequately. Indeed, they would not score any points under activity 9. The fact that they need someone to provide “communication support” does not mean that the other person is necessarily providing support with “engagement.” Rather, that person is purely helping with the ability to “communicate verbally.”
But in allowing the claimant’s appeal he finds that on any view the she did not fall into that category:
“Her case was that she found social situations very difficult, as there was usually more than one person and there was a lot of background noise. Indeed the Health Professional, having recorded that social situations could be difficult due to background noise, and this could be very stressful, stated that “this is supported with the informal observations of the face to face consultation.”
So while the tribunal’s finding that she satisfied descriptor 7c did not ‘automatically’ lead to the conclusion that she also satisfied descriptor 9c, Judge Rowley finds that it was incumbent on the tribunal to consider whether descriptor 9c applied, and to give adequate reasons for its decision.
He concludes that it did not give adequate reasons as the tribunal failed properly to tackle the issue of whether the claimant in than one person or if there was background noise (common social particular those people whom she did not know well, especially in groups of more occurrences). The tribunal should have investigated the nature of the support that was needed by the claimant from her friends or family such situations, and determined whether or not that amounted to “social support.”
CPIP/3017/2015: Difficulty moving around due to somatic symptoms may come within PIP mobility activity 2
Upper Tribunal Judge: Rowley
In this decision, Upper Tribunal Judge Rowley considers whether an inability to move around due to somatic symptoms comes within mobility activity 2.
He outlines that under section 79 of the Welfare Reform Act 2012 a person is entitled to the mobility component (under either activity at either rate) if their person’ ability to carry out the mobility activities is limited by his or her “physical or mental condition.”
In addition, he says that there is nothing in the wording of the enabling legislation, regulations, mobility activity 2 or its descriptors to suggest that a claimant whose psychosomatic condition manifests an inability to move around will not qualify.
Therefore, he holds that “the simple question is whether the claimant genuinely suffers pain to such an extent that his or her ability to move around is limited”.
He adds:
“In other words, if it is accepted that a claimant’s symptoms are being genuinely experienced (and that is a matter of fact for the tribunal), then mobility activity 2 falls to be considered in respect of them, irrespective of whether the symptoms are physical or somatic in origin.”
CPIP/3369/2015: Whether a chair or a bed constitute an ‘aid’ for the purposes of dressing and undressing
Benefit: PIP
Upper Tribunal Judge: Jacobs
The most important issue in this case is the interpretation and application of the definition of ‘aid or appliance’ in the Social Security (Personal Independence Payment) Regulations 2013 and, in particular whether the decision in CPIP/2168/2015 was correct.
The claimant identified her problems as arising from osteoarthritis in her lower back, knee replacement surgery, mental health issues, bowel incontinence, and high blood pressure. This led her to have difficulties with: managing treatments, washing and bathing, managing toilet needs, mixing with other people, going out, and moving around.
However, while a First Tier Tribunal awarded her the PIP mobility component at the standard rate it upheld the decision not to award her any rate of the daily living component.
In the course of its reasoning on dressing and undressing, the tribunal said held that while the claimant appellant used a bed as an aid to assist her to getting dressed it could not be recognised as an aid.
The claimant was given permission to appeal to the Upper Tribunal to consider if it is appropriate to consider whether a bed is an aid in relation to the activity of dressing.
In considering the appeal, Judge Jacobs sets out the relevant legislation including as follows.
Personal independence payments are governed by the Welfare Reform Act 2012. Section 80 provides:
80 Ability to carry out daily living activities or mobility activities
(1) For the purposes of this Part, the following questions are to be determined in accordance with regulations-
(a) whether a person’s ability to carry out daily living activities is limited by the person’s physical or mental condition;
(b) whether a person’s ability to carry out daily living activities is severely limited by the person’s physical or mental condition;
The relevant Regulations are the 2013 Regulations. Regulation 2 contains definitions:
2 Interpretation
In these Regulations-
… ‘aid or appliance’-
(i) means any device which improves, provides or replaces C’s impaired physical or mental function; and
(ii) includes a prosthesis;
…
‘C’ means a person who has made a claim for or, as the case may be, is entitled to personal independence payment; …
Regulation 4 of the 2013 Regulations is made under the authority of section 80:
4 Assessment of ability to carry out activities
(1) For the purposes of … section 78 … of the Act, 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.
Schedule 1 deals with the daily living activities and their descriptors. Paragraph 5 of Schedule 1 deals with dressing and undressing:
|
Activity |
Descriptors |
Points |
|
|
b. Needs to use an aid or appliance to be able to dress or undress. |
2 |
Paragraph 1 of the Schedule defines ‘dress and undress’:
“dress and undress’ includes put on and take off socks and shoes;”
Judge Jacobs also considers Judge Marks’ decision in CPIP/2168/2015 which he concluded:
“… with dressing and undressing, 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.
I therefore conclude that the claimant did score 2 points under descriptor 6(b) ‘Needs to use an aid or appliance to be able to dress or undress’ and therefore scored a total of 8 points in respect of daily living activities and was entitled to an award at the standard rate of the daily living component of PIP.”
The Secretary of State’s representative submitted to Judge Jacobs that while Judge Marks was correct that a bed/chair (or anything else) can be an aid in circumstances where it wasn’t built for that purpose the judge should have taken his analysis a stage further:
“There must not just be a functional loss, but a functional loss in relation to the specific activity, or individual descriptor. A condition which leads to a functional loss in one activity may not do so in another.
To assess whether there really is a functional loss at all one must consider the nature of what the descriptor is asking them to complete and the manner in which that activity can be completed. If the functional loss does not put them at a disadvantage in the particular context … then it is not really a functional loss at all.”
Judge Jacobs accepts the Secretary of State’s submission, while supporting Judge Mark’s reasoning: an aid does not have to be specifically designed, made or sold for the purpose:
“This accords with practical experience that people do make use of items that are available in their homes rather than obtain or use specialist aids. Whatever the purpose for which the item was designed or sold, it is being used as an aid.
The judge’s interpretation is also supported by the contrasting wording of the definition of orientation aid in paragraph 1 of Schedule 1: this ‘means a specialist aid designed to assist disabled people to follow a route safely’.
This provided a clear model that could have been followed to achieve the same result for aid or appliance, but it was not.
Finally, the judge’s approach avoids the difficulty of classifying an item that may have been designed both for everyday use and to assist in overcoming a disability, such as a shoe horn.”
However, Judge Jacobs also accept the Secretary of State’s argument that, in order to be relevant, an aid or appliance must relate in some way to the particular activity. He calls this the “connection argument”:
“The 2012 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.
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.”
Judge Jacobs therefore reasons that many people with no functional limitation choose to sit on a bed while dressing and undressing even though they could do so standing. So while the claimant may have been unable to dress and undress standing up, she could do so while sitting on her bed, which was an equally common way of carrying out the activity. Therefore the bed was not an ‘aid’ which enabled her to overcome a functional inability to dress or undress.
Judge Jacobs concludes that:
“… 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.”
CPIP/3544/2015: First Tier Tribunal does have the power in a PIP appeal to direct a medical examination takes place
Benefit: PIP
Upper Tribunal Judge: Gray
The appellant had been awarded DLA which comprised the lower rate of the mobility component and the highest rate of the care component.
However, following a "a paper-based consultation" and reconsideration she was awarded PIP at the standard rate for daily living and a standard rate award of the mobility component.
While a First Tier Tribunal (FTT) confirmed the decision under appeal as revised, it expressed regret that it did not, have the power to direct that a medical examination should take place:
" …the tribunal is an inquisitorial tribunal and the tribunal can seek to obtain evidence itself. The tribunal used to be able to commission its own medical reports, but that facility is no longer available to the tribunal as the tribunal understands that the present contract between the DWP and the contractor providing medical report does not contain provision for it."
In setting aside the FTT’s decision and directing a rehearing of the appeal, Judge Gray holds that “the misunderstanding of their authority in this regard was a material error because it is clear that had they realised that they had that power they would have exercised it in this case”.
He then details the power of the FTT to direct a medical assessment:
This appears in an amendment to schedule 2 to the Tribunal Procedure Rules (First-Tier Tribunal) (SEC) Rules 2008 (the procedural rules).
Schedule 2 is headed "Issues in relation to which the tribunal may refer a person for medical examination under section 20 (2) of the Social Security Act 1998."
Section 20 applies to any appeal brought under section 12 of the Social Security Act ( the SSA) against a decision on a claim for a relevant benefit or as to a person's entitlement to such a benefit. These are appeals against any decisions of the Secretary of State in relation to benefit entitlement which are not specifically designated as unappealable decisions under schedule 2 of that Act. A relevant benefit, under section 8 (3) of that Act includes a personal independence payment.
Section 20 (2) SSA provides that:
“20(2) The First-Tier Tribunal may, if conditions prescribed by Tribunal Procedure Rules are satisfied, refer the person –
(a) in respect of whom the claim is made; or
(b) he was entitlement is at issue,
to a healthcare professional approved by the Secretary of State for such examination and reporters appears to be First-Tier Tribunal to be necessary for the purpose of providing it with information to use in determining the appeal.”
Section 39 (1) of the same Act defines a "health care professional" widely, to include registered doctors and nurses, as well as registered occupational therapists or physiotherapists, and empowers the Secretary of State to add other registered health care professionals.
To return to schedule 2 of the procedural rules, the list of issues which fall within that schedule includes whether a claimant satisfies the conditions for entitlement to either the daily living component or the mobility component of PIP (schedule 2 (a) (vi) and (vii)) and (schedule 2 (j)) and the rate at which the allowance is payable.
Accordingly in an appeal against a PIP decision relating to issues of entitlement the FTT has the power to direct that what is described as a medical examination and performed by a health care professional, take place.
CPIP/3573/2015: Need for supervision when preparing food (Descriptor 1e)
Benefit: PIP
Upper Tribunal Judge: Bano
The claimant experienced non-epileptic seizures. She made a claim for PIP, asserting problems including with preparing food, taking nutrition, washing and bathing, dressing and undressing.
At a face to face consultation a Health Care Professional assessed her as being able to cook a simple meal using a microwave, needing supervision to wash or bathe, needing prompting or assistance to make budgeting decisions and needing prompting to undertake a journey to avoid overwhelming psychological distress, resulting in a score of 4 points for daily living activities and 4 points for mobility activities.
On the basis of that assessment, the claim for PIP was refused. With a tribunal upholding that decision the client appealed to the Upper Tribunal.
Regulation 4 of the Social Security (Personal Independence Payment) Regulations 2013 provides:
“ … (2A) Where [the claimant’s] ability to carry out an activity is assessed, [the claimant] is to be assessed as satisfying a descriptor only if [the claimant] can do so-
(a) safely;
(b) to an acceptable standard;
(c) repeatedly; and
(d) within a reasonable time period; and
(4) In this regulation-
(a) “safely” means in a manner unlikely to cause harm to [the claimant] 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; and
(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.”
Regulations 7(1) and (2) provide:
“(1) The descriptor which applies to [the claimant] 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.
(2) For the purposes of paragraph (1), a descriptor is satisfied on a day in the required period if it is likely that, if [the claimant] had been assessed on that day, [the claimant] would have satisfied that descriptor.”
Activity 1 in Part 2 of Schedule 1 to the 2013 PIP Regulations is as follows:
|
1. Preparing food. |
a. Can prepare and cook a simple meal unaided. |
0 |
|
b. Needs to use an aid or appliance to be able to either prepare or cook a simple meal. |
2 |
|
|
c. Cannot cook a simple meal using a conventional cooker but is able to do so using a microwave. |
2 |
|
|
d. Needs prompting to be able to either prepare or cook a simple meal. |
2 |
|
|
e. Needs supervision or assistance to either prepare or cook a simple meal. |
4 |
|
|
f. Cannot prepare and cook food. |
8 |
The Secretary of State submitted that it follows from that construction of regulation 4 that a finding that a claimant can prepare food ‘safely’ for the purposes of that regulation necessarily means that the claimant does not need supervision for the purposes of descriptor 1e:
“Having regard to the fact that the claimant was at the time of the claim and entitlement decision only experiencing a couple of seizures a week, I submit the evidence indicates regulation 7 of the PIP regulations fails to be satisfied, as seizures were not occurring on over 50% of the days of the required period. It therefore cannot be said that, on over 50% of the days, the claimant is unable to safely undertake the activities that are required to prepare and cook a simple meal. There is no evidence to show that the claimant would need supervision or assistance to prepare and cook a meal, as she can undertake the necessary tasks. Thus descriptor 1e cannot be satisfied and neither can descriptor 1c or any of the other descriptors within descriptor 1.”
However, Judge Bano rejects this submission:
“I regard it as inconceivable that the legislation intended that claimants who might be at risk of serious harm if left to prepare and cook a meal unsupervised, such as those with epilepsy and similar conditions, could only qualify for points under Activity 1 if they could establish that they were likely to come to some form of harm, serious or otherwise, on more than half the days in the required period.
Regulation 4 applies to all activities, but only some activities include descriptors relating to a need for supervision. In my judgment, where there is such a descriptor the question of whether a claimant needs supervision to carry out the activity concerned must be considered separately from whether the claimant can carry out the activity ‘safely’ under regulation 4 of the 2013 PIP regulations, since otherwise the inclusion of a ‘supervision’ descriptor in the activities where they occur would serve no useful purpose. Regulation 4 and ‘supervision’ descriptors may in many cases raise common or overlapping issues of fact, but they are in my view analytically and conceptually distinct.
The terms ‘needs’ and ‘requires’ (with the implication of the word ‘reasonably’) in relation to supervision used in the 2013 PIP Regulations and in section 72(1)(b) of the Social Security Contributions and Benefits Act 1992 respectively seem to me to connote more or less the same degree of necessity.
Although there is of course no requirement in the 2013 PIP Regulations for supervision to be continual, in deciding whether a claimant needs supervision in order to carry out a task safely, I therefore see no reason to depart from the well-established approach taken in disability living allowance cases for deciding whether supervision is reasonably required, including the making of an assessment where necessary of the possible seriousness of the consequences if supervision is not provided - see R(A) 2/89.”
Judge Bano also holds that the tribunal erred in law in failing to take into account the full range of tasks required to prepare and cook a meal.
“The tribunal applied descriptor 1c (cannot cook a simple meal using a conventional cooker but is able to do so using a microwave), although they did not specifically refer to regulation 4 of the 2013 PIP Regulations. However. that descriptor would not be applicable if a higher scoring descriptor applied-see regulation 7(1)(b) of the 2013 PIP Regulations. In considering descriptor 1(e), the definition in Schedule 1 to the 2013 PIP Regulations was relevant, providing that “”prepare”, in the context of food, means make food ready for cooking or eating.
In the light of the medical evidence that the claimant was experiencing seizures twice a week, the tribunal therefore had to consider the risks to the claimant of all the tasks needed to prepare food and to make it ready for eating, including any risks associated with taking hot food out of a microwave and getting it ready to eat. The risk that the claimant might suffer burns or scalds if she lost consciousness when carrying hot food while unsupervised was particularly relevant.”
Judge Bano concludes by setting aside the tribunal’s decision and remit the case for hearing before a differently constituted tribunal.
CPIP/3603/2015: Activity 9 (engaging with other people face to face): Whether “social upport" can be provided by friends or relatives?
Upper Tribunal Judge: Hemingway
The primary issue considered in this decision is whether or not “social support” for the purposes of PIP descriptor 9(c) relates only to assistance provided by a person who has relevant training or specific expertise or whether the requirements of the descriptor may be met, if the social support received is from friends or family.
Descriptor (c) of Activity 9 (Engaging with other people face to face) provides:
c. Needs social support to be able to engage with other people (4 points)
In considering his decision, Upper Tribunal Judge Hemingway highlights that “social support” is defined in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 in this form:
“‘social support’ means support from a person trained or experienced in assisting people to engage in social situations.”
He then reasons as follows:
“The definition within Schedule 1 refers to “a person trained or experienced in assisting people to engage in social situations”. The use of the word “or” makes it entirely clear that such a person does not have to be trained and that experience without training will do.
There is nothing in that definition to suggest that the experience necessary has to be derived from any sort of professional work and there is nothing in the wording to point to lay persons, such as family or friends, being excluded so long as they do, as a matter of fact, have the requisite experience.
I did wonder whether the words “assisting people” (my underlining) might point to the provider of the social support having to have experience of providing support for more than one person, which might be thought to support the proposition that the provider has to be engaged in providing support in some professional capacity as opposed to a person whose experience is simply derived from supporting one person close to him or her (perhaps a partner).
However, I think the word “people” is probably simply there to indicate that the person providing the support does not have to be providing it only to one person.
So a reading of the relevant definition when taken alongside the wording in the descriptor itself points to it being perfectly permissible for the support to come from a lay person who has derived experience simply from assisting an individual close to him or her.”
Judge Hemingway concludes that he is:
“..satisfied that on appropriate findings a friend, a family member or some other type of lay person can provide the requisite “social support” thus, enabling a claimant, on the right facts, to satisfy descriptor 9(c) without any form of professional or specialist input.
…It is worth pointing out though that the requirement for such a person to be “experienced” should not be ignored and evidence about the length of time a friend, family member or other lay person has been providing support and the frequency with which it is provided might well have to be evidenced before decision makers and first instance tribunals.”
CPIP/139/2016: PIP moving around test must take in ability to negotiate kerbs
Upper Tribunal Judge: Rowley
The claimant had a lower back problem, with a long history of back pain, which referred into her left hip and leg.
While she had an award of the standard rate of the daily living component of PIP she appealed against a decision not to award her any rate of the moving around component.
A First-tier Tribunal dismissed her appeal finding that she was able to “stand and then move more than 50 metres but no more than 200 metres, either aided or unaided.”
On giving her permission to appeal Upper Tribunal Judge Rowley asked the Secretary of State to make a submission as to the type of surface upon which the “moving around” activity is to be assessed.
The Secretary of State conceded that the “moving around” activity should be judged in relation to the type of surface normally expected for pedestrian use out of doors.
In accepting the Secretary of State’s concession, Judge Rowley holds that:
“To move around outdoors one must generally walk along pavements and roads. It is a rare pavement which is as level as a bowling green. To my mind, the decision maker or tribunal must contemplate a reasonably flat pavement or road surface, taking into account the usual rise and fall one would normally encounter.”
He adds that that when assessing a claimant’s ability to move around, regard must be had to his or her ability to cope with kerbs:
“After all, a person would normally expect to have to step up and down from the pavement during the course of moving around out of doors. “
However, Judge Rowley determines that an inability to climb steps or slopes (other than the usual inclines found on pavements and roads) is not to be regarded:
“Activity 2 concerns the ability to move around, and relates to the physical aspect of walking. It does not make any reference to climbing, which uses a different set of muscles and is, in general, a more difficult function than walking.”
In this case the claimant had expressly put in issue the question of her ability to step off kerbs, but the tribunal did not specifically refer to it in its Statement of Reasons.
Given that the claimant had raised it as an issue, Judge Rowley finds that in my judgment the tribunal should have done so and that Its failure to do so, and to make findings on it, amounted to an error of law.
He therefore sets aside the tribunal’s decision and remits the claimant’s appeal for rehearing.
CPIP/181/2016: Assessing the need for prompting / need for a cooked meal to be made from fresh ingredients
Benefit: PIP
Upper Tribunal Judge: Hemingway
The claimant had been dependent upon alcohol for many years and suffered from anxiety and depression. One of the ways in which his health problems impacted upon him was to significantly lower his motivation and he also had difficulty with concentration, memory functions and nervousness in certain social situations.
After being refused PIP, his appeal was successful in part, a tribunal concluding that there was no entitlement to the daily living component but that, on the basis that he satisfied descriptor 1(d) concerned with mobility activities, he was entitled to 10 points and, hence, the standard rate of the mobility component.
The claimant then appealed to the Upper Tribunal.
Judge Hemingway explains that the claimant had, relied upon the claimed lack of motivation in relation to the descriptors linked to the activities of preparing food, washing and bathing and dressing and undressing. The tribunal did not, though, award any points in relation to any of these.
"As to preparing food, it observed that he might simply “put food in the microwave” but said that was a choice he was making. As to motivation more generally and particularly in relation to his hygiene needs, it observed that although drinking heavily at the date of the decision under appeal he was able to respond to priorities and obligations such as appointments, visits to his father and trips to the shop and that he would self‑motivate, with respect to personal hygiene, “on the occasions when he felt it was necessary”.
Regulation 7(1)(a) of the Social Security (Personal Independence Payment) Regulations 2013 provides that a particular descriptor is satisfied in circumstances where a claimant is unable to perform the relevant function on over 50% of the days of the period under consideration.
Judge Hemingway says that the tribunal appeared to accept that around the time of the decision, the claimant did not normally attend to his hygiene needs adequately and, perhaps by implication, did not always dress himself either. However, took the view that prompting was not needed for the majority of the time because when there was an imperative he was capable of acting.
But he holds that this is too simplistic an approach:
“The mere fact that a claimant might be sufficiently motivated to perform a task when there is specific or unusual impetus to do so does not, of itself, inform as to the overall position and the generality of the situation. So it is not appropriate to limit the scope of the enquiry to such days. True an ability to perform a task without prompting when there is particular pressure to do so might be indicative of a claimant simply exercising a choice not to perform such a task on impetus absent days but that will not necessarily follow.
What has to be undertaken is a more general and all-encompassing consideration. So, there needs to be an assessment, in such cases, of why it is that, on days when a claimant does not perform certain tasks, he/she does not do so. If it is because, without any specific impetus, he/she is not motivated to do so as a result of health difficulties and that such days exist for more than 50% of the time in the relevant assessment period, then absent other pertinent considerations, the relevant descriptor or descriptors will apply.
That was not this tribunal’s approach and I conclude that, in consequence, it did err in law. Of course, though, and obviously, mere indolence will not lead to a genuine need for prompting being established.”
Judge Hemingway also adds something further with respect to the motivation issue in the specific context of the descriptors linked to preparing food.
The tribunal noted that, around the decision date, the claimant would normally simply “put a ready meal in a microwave”. It thought he would eat “when he was hungry enough”, presumably after heating such a ready meal by the means indicated.
However, as was indicated by the Upper Tribunal in LC v The Secretary of State for Work and Pensions (PIP) [2016] UKUT 0150 (AAC) in order to “prepare and cook a simple meal” it is:
“necessary for the claimant to be able to prepare and cook the food from fresh ingredients, the definition in the Schedule of a ‘simple meal’ being ‘a cooked one course meal for one using fresh ingredients’.”
Judge Hemingway holds that:
“It is clear that the prompting envisaged by the descriptor is such as will enable a claimant to prepare and cook the food from fresh ingredients. It is also clear that if the prompting is needed in relation to either the preparing or the cooking element that will suffice to enable the appropriate number of points to be scored.
I cannot read the descriptor any other way because the two aspects are concerned with the one overall process of producing a meal which is ready to eat. An ability, therefore, to simply put a ready meal in a microwave without prompting will not, of itself, mean that descriptor 1(d) is not met. Again, that was not the approach followed by this tribunal.”
CPIP/193/2016: Effect of claimant stopping when walking in considering how far they can "stand and then move”
Benefit: PIP
Upper Tribunal Judge: Hemingway
In this decision, Upper Tribunal Judge Hemingway considers the issue of how pauses or stops by a claimant should be considered in assessing how far they can "stand and then move”
In assessing a claimant’s ability to perform a relevant function decision makers, including tribunals, must apply regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013. This reads as follows:
“(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; …”
5. Regulation 4(4) defines three of the above as follows:
(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; and
& (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.”
but there is no definition of “to an acceptable standard”.
As to the question of ‘pausing’ when moving around, Judge Hemingway cites with approval the decision of Judge Parker in CPIP/2377/2015.
He says that having reminded herself of the content of regulations 4(2A) and 4(4) she said this:
“Matters such as pain, and its severity, and the frequency and nature, including extent, of any rests required by a claimant, are relevant to the question of whether a claimant can complete a mobility activity descriptor ‘to an acceptable standard’.
I do not agree with the comment at page 771 of Volume I of the 2015/16 annotated Social Security Legislation that arguably ‘… the test should envisage a single unbroken progress to the requisite distance’. Such might provide a simpler scheme but, in my view, does not accord with reality.
A stop may amount to a mere one second or, alternatively, extend to one hour; such rests may be required once in an appropriate distance or several times.
Given the potential vast disparity in circumstances, it is then a matter of judgment, and thus for the good sense of a tribunal, whether a claimant falls within a particular descriptor, having regard to the approach mandated under regulation 4; provided a tribunal’s analysis is rational, even if it takes account of the claimant’s necessity to stop on occasion to rest and includes those in the required distance, this is not prohibited as a matter of law.”
Judge Hemingway agrees with this approach -
“It does seem to me that there might well be situations where a claimant who has some difficulty with respect to aspects of walking might pause, albeit momentarily, prior to continuing to walk.
An example might be a claimant who has some difficulty with respect to balance and will wish to pause before avoiding a small obstacle or stepping up onto a kerb. Another might be a claimant who suffers from some shortness of breath and who might pause to take a gulp of air prior to embarking upon a slight incline. It does seem to me that it would be losing touch with reality to suggest that such limited punctuations in a claimant’s walking would mean that his or her bout of moving, for the purposes of the activity and descriptors, had come to an end at that point.
He continues:
“So, the approach should be to ask which of the prescribed distances, if any, can be achieved in light of the regulation 4 (2A) factors and the relevance of any pauses or halts (or whichever word one chooses to use), will be in relation to what they say about those factors.
That is not to say, though, that the cause of any halt will not have relevance. It seems to me that if, for example, it was found that a claimant had to pause because of fatigue, such that there was a need to recover before recommencing walking, or was to halt for a period to enable pain which had built up whilst walking to recede, then that might well, depending on the circumstances, suggest that such halts were likely to be for a period of some length thus bringing into play the four (2A) factors and perhaps, in particular, the “reasonable time period” requirement.
I would also add, in looking at the words I have quoted from Judge Parker’s decision, that there will be times when a halt has persisted for such length that it cannot realistically be said any resumption is part of the same period of walking but is a new period so that the distance achieved in the second period is not to be added to that of the first period.
The example of a stop for one hour given at paragraph 6 of Judge Parker’s decision, for instance, would seem to be comfortably sufficient to end an initial period of walking.
Whether such a period has been brought to an end will be a matter for a tribunal to decide applying good judgment and common-sense but it may well be the case that such lengthy stops would, in any event, mean that a prescribed distance has not been accomplished within a reasonable time period or is unlikely to be achieved repeatedly so the point may be largely academic.”
CSPIP/666/2014: Biscuit tin is not an aid or appliance for managing medication /Activities 5 (Managing Toilet Needs) and Activity 6 (Dressing and Undressing) are separate and distinct
Benefit: PIP
Upper Tribunal Judge: May
The appellant submitted that the tribunal had erred in law by failing to consider that she required her husband to organise her medication and that she uses a biscuit tin as an aid/appliance to store her medication.
In opposing this, the Secretary of State cited that an “aid or appliance”. are defined in regulation 2 of the PIP Regulations as:
(a) means any device which improves, provides or replaces C’s impaired physical or mental function; and
(b) includes a prosthesis;
The Secretary of State maintained that “aids or appliances” are used where claimants are unable to manage their medication due to their health condition or impairment and include items such as dosette boxes and alarms.
Accepting this, Judge May holds that keeping medication in one place does not fall within the definition of “aid or appliance” as set out in the regulations.
The appellant also submitted that the tribunal’s findings under activity 5 were inconsistent with their findings under activity 6. The tribunal stated under activity 5 that the appellant manages her own toilet needs without assistance from another person. Under activity 6 the Tribunal stated that she required assistance by reason of her shoulder injury to dress her lower body.
She submitted that these findings were inconsistent and contradicted each other. She required assistance with her toilet needs as she needs to adjust clothing on her lower body and by reason of her shoulder injury she is unable to do this on her own. The tribunal had failed to give an adequate explanation for failing to recognise her needs under activity 5 but thereafter accepting the same needs under activity 6.”
Again the Secretary of State did not support this contention and said that Activity 6 concerns dressing and undressing and in this case the claimant’s ability to dress her lower body. Activity 5 concerns the activities such as getting on and off an unadapted toilet, evacuating the bowel and/or bladder and cleaning oneself afterwards. It does not concern the ability to undress/dress before or after any of these activities.
Therefore activities 5 and 6 are separate and distinct so that the tribunal’s findings regarding activity 6 did not any impact on activity 5.
Again Judge May agrees with the Secretary of State that Activities 5 and 6 are separate and distinct and thus the inconsistency referred to in the grounds of appeal does not arise.
UK/313/2015: Following the route of a journey only concerns the ability to navigate and not problems caused by anxiety
Upper Tribunal Judge Ward
This appeal is something of a ‘test case’ that examines mobility activity 1 “Planning and following journeys” following a number of cases being stayed behind it.
Mobility activity 1 is set out in Part 3 of the Schedule to the Social Security (Personal Independence Payment) Regulations 2013/377 as follows:
|
Column 1 Activity |
Column 2 Descriptors |
Column 3 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 |
In this case the tribunal had found that the claimant suffered from anxiety and depression. She relied on friends and family to get about as she became nervous and anxious. However, she was not hampered by any inability to navigate: it was being out on her own which caused her anxiety.
The tribunal rejected that the claimant was unable to follow the route of an unfamiliar journey on her own and so should be awarded 10 points under descriptor 1d saying she:
“… was clearly capable of navigation. Her real concern was being out and about on her own. This was not a limitation falling within the limits covered by [the relevant] descriptor, because it is the inability to orientate oneself without support which is at issue in that particular descriptor.”
On granting permission, the judge observed:
“There may be claimants who are so severely impaired due to depression and/or psychological distress that they cannot follow a route. The distress is such that they are not cognitively able to follow the route. Can depression and/or psychological distress amount to cognitive impairment if in fact any such impairment is required for this descriptor to be met?”
In considering this appeal, Upper Tribunal Judge Ward considers conflicting decisions that have been made in relation to this descriptor.
In DA v SSWP [2015] UKUT 0344 (AAC) Judge Jacobs accepted the Secretary of State’s submission that descriptor 1d ”deals with navigation and excludes dealing with other difficulties that may be encountered along the way”. On the natural meaning of the words, the relevant descriptors dealt with “following” the route, a route which had been planned. Difficulties such as getting lost and asking for directions or encountering crowds which arose on the way were not difficulties with “following” the route:
“This reading is consistent with and reinforced by the contrasts within the descriptors for Activity 1. The descriptors contrast the route of a journey (descriptors 1a, 1c, 1d and 1f) with the journey itself (descriptors 1b and 1e). And following the route of the journey (descriptors 1a, 1d and 1f) with undertaking the journey (descriptors 1b and 1e). The latter is used when the claimant could not embark on or complete a journey either without prompting or at all. The impediment in either case must be overwhelming psychological distress. That could be distress from going on a journey (such as might occur if a claimant has agoraphobia) or from contemplating or coping with difficulties that might arise on the route (such as might occur if a claimant has a fear of crowds).
In contrast, the other descriptors are limited to one aspect of the journey, following its route. It would be inappropriate to interpret this more widely than its natural meaning. Doing so, would disrupt the structure of the Activity by incorporating issues that are properly covered, if at all, by other descriptors.”
However, in RC v SSWP [2015] UKUT 0386 (AAC) Upper Tribunal Judge Sir Crispin Agnew of Lochnaw QC outlined that there was no evidence of cognitive impairment which would render the appellant in that case unable to navigate a route although there was evidence that RC never went out alone due to anxiety.
Judge Agnew holds that “cannot follow” does not have the restricted navigation meaning put forward to him by the Secretary of State:
“It is the “cannot” that is the significant word and “cannot” is not qualified by any reason. I consider that is covers the situation where a claimant “cannot follow” the route because they cannot navigate the route or because they cannot follow it because of some psychological factor, such as anxiety, even if they have the intellectual capacity to follow the route in theory. Even if a claimant can in theory navigate a route, if the claimant cannot in fact go out and follow it without the assistance of another person, dog or other aid, whatever that reason, I consider it brings the claimant within the Activity.
There is, with the exception of Mobility Activity 1.e (as noted above) a logical progression in the Activities. If a claimant can “plan and follow” a route there are no points; if the claimant can plan and follow the route, but needs prompting to go out and follow it, then it is 4 points. The next stage requires someone else to plan the route for the claimant, who must then be able to follow that plan alone and hence gets 8 points. The next stage is the person who cannot follow an unfamiliar route without another person etc, so the activity gets to the stage where outside assistance is needed in order to be able to follow the route and thus qualifies for 10 points.”
Judge Agnew therefore concludes that there was no limitation on the reason why the “person” was required and thus, if the argument was indeed the same, that the mention of the “person, assistance dog or orientation aid” did not limit the scope of the descriptor.
In supporting Judge Jacob’s view and so rejecting Judge Agnew’s findings, Upper Tribunal Judge Ward observes that:
“The purpose of the descriptors is to set out a number of limitations by a person’s physical or mental condition on, in this case, the ability to carry out the “mobility activity” of “planning and following journeys”. Different descriptors which are met may then attract differing numbers of points."
He then states that:
“Against that background, I consider that the situation of a person who is limited in the activity of “planning and following journeys” by the fact that they cannot do it without overwhelming psychological distress either by undertaking any journey at all (descriptor 1e) or without prompting (descriptor 1b) is addressed by those descriptors. Those descriptors deal with that sort of limitation on the mobility activity. Other descriptors deal with other sorts of limitation on that activity. It respectfully seems to me that Judge Jacobs’ analysis of the linguistic structure of the various descriptors of activity 1 at para 14 of his decision is entirely accurate."
Judge Ward then continues:
“Once it is appreciated that the descriptors address a number of different types of limitation on the activity of “planning and following journeys”, it can, I would respectfully suggest, be seen that the emphasis placed in RC on the word “cannot” (and relied upon by the claimant in the present case) is misplaced. Even if as a matter of general language, it may perhaps be argued to be possible – at a stretch - to say that a person who cannot get out of the door because of anxiety “cannot” “follow the route”, that would be to approach the descriptor in a vacuum. The case does not in my view turn on the word “cannot” (or on whether or not it is defined) but on the distinctions contained within the wording of the descriptors, as identified by Judge Jacobs, which then bear on the type of limitation on the activity of planning and following journeys that a person has.
… I agree with the Secretary of State that the words “follow the route” must be taken to have been adopted advisedly; that “route” refers to (in the broad sense) the pathway to somewhere and that to follow has connotations of keeping to such a pathway. I accept the submission that “the deliberate use of the words “follow” and “route” focuses us upon the claimant’s ability to navigate along pathways and is not concerned with other possible problems that a claimant may have when being in the natural environment.”
Given the view I take of the structure of the descriptors and the meaning to be attributed to “follow a route” it follows that I also respectfully agree with Judge Jacobs’ views … as to the “person, assistance dog or orientation aid” point.”
Judge Ward adds that
“In DA Judge Jacobs was concerned with the ability to ask others for help. For my part and without disagreeing with the examples he gave of asking for directions or encountering crowds, which he considered were not difficulties of following a route.
I can conceive, particularly when reg 4(2A) is borne in mind, of types of difficulty occurring on the way – such as the need to navigate round road works or the effects of an accident – which might properly fall within the scope of the descriptor.”
Comment: This is an extremely disappointing decision. Its effect will mean that those disabled people who need are accompanied out of doors due to mental health issues such as anxiety or panic attacks will be denied any rate of PIP to compensate them for the extra costs this may bring.
CTC/1260/2015: Tax credits penalties: the proper approach
Benefit: Tax Credits
Upper Tribunal Judge: Levenson
In this decision, Judge Levenson sets out the proper approach that a tribunal should take in considering an appeal against a HMRC decision to impose a penalty.
Section 31 of the Tax Credits Act 2002 provides:
“31(1) Where a person fraudulently or negligently –
(a) makes an incorrect statement or declaration in or in connection with a claim for tax credit or a notification of a change of circumstances given in accordance with regulations … or in response to [certain] notice[s], or
(b) gives incorrect information or evidence in response to [certain] requirement[s] …
a penalty not exceeding £3000 may be imposed on him.”
Other provisions deal with the power of HMRC to impose the penalty and create a right of appeal to the First-tier Tribunal in certain cases.
Schedule 2 to the 2002 Act empowers the First-tier Tribunal to set aside or confirm the penalty or reduce or increase the amount. On appeal to it, the Upper Tribunal may also change the amount, even in the absence of an error of law.
There is no statutory guidance as to how or on what basis HMRC should calculate the amount of a tax credit penalty.
However, HMRC has made available online its penalty guidance and a penalty factsheet it sends to claimants.
In considering the claimant’s appeal, Judge Levenson sets out what he holds is the correct approach to tax credit penalties.
While he acknowledges that it is not an exhaustive list and that much will depend on the circumstances of the particular case, he says that by following this kind of approach tribunals are less likely to fall into error of law.
“(a) The imposition of any penalty involves the exercise of a discretion whether or not to impose any penalty at all or a penalty of a particular amount.
(b) It is proper for HMRC to adopt guidance even though there is no statutory requirement to do so.
(c) It is proper for the First-tier Tribunal to take that guidance as a starting point for the calculation of any penalty.
(d) In applying the guidance the First-tier Tribunal must be satisfied as to the underlying facts on which the calculation of the penalty is based, including the amount of any overpayment said to have been made.
It must also be satisfied that any incorrect statement can in fact be attributed to the period in respect of which the penalty is being considered. A distinction will usually need to be made between past reports and future predictions - the design of HMRC forms is not always very helpful on this matter.
(e) In most cases it will be relevant for the First-tier Tribunal to find whether the claimant acted innocently and/or reasonably, or negligently (that is, with a lack of due care), or fraudulently.
(f) Having identified the amount of penalty that the guidance would produce, the First-tier Tribunal must consider whether there are any aggravating or mitigating factors and must take into account the principle that the maximum penalty is reserved for the worst offences.
(g) At each stage the First-tier Tribunal must give reasons for its conclusions.”
In this case, Judge Levenson sets aside the tribunal’s decision and remits the appeal for rehearing.
This is on the grounds that the tribunal was in error in not explaining the basis of its assessment of the appropriate penalty, in not seeking direct evidence of the figures eventually taken by HMRC for the appropriate income, and not establishing a factual basis for its finding of negligence, which was arguably inadequately reasoned.
He also rejects HMRC’s submission to him as follows:
“On the issue of the assessment of the appropriate penalty, HMRC argued before me that the appeal to the First-tier Tribunal was not about that but about whether the claimant had indeed been negligent.
This is wrong. The appeal to the First-tier Tribunal was against the outcome decision to impose a penalty. In its very nature the appeal encompassed both an appeal against there being any penalty and an appeal against the calculation of the penalty. This is consistent with the powers specifically.”
Ken Butler - 13 September 2016
Benefits