New legal judgment will help some D/deaf people to qualify for PIP

A new Upper Tribunal judgment will enable some D/deaf people to score more daily living activity points so as to help gain entitlement to PIP.

The two PIP claimants in the case each need to remove their hearing aids to take a shower and to take a bath.

Each cannot without the aids hear a typical fire alarm or smoke alarm while taking a bath or shower with the door closed.

The issue before the Upper Tribunal was whether the claimants required supervision in order to have a bath or shower due to having to remove their hearing aids and being unable to hear an alarm.

Regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013, provides that a claimant is not to be assessed as able to carry out an activity unless she or he can do so “safely”.

Regulation 4(4) provides that “‘safely’ means in a manner unlikely to cause harm to [the claimant] or to another person, either during or after completion of the activity”.

The DWP submitted to the Upper Tribunal that the risk of a fire occurring while washing was so remote that it could reasonably be ignored by decision-makers.

In rejecting its submission, Upper Tribunal Judge Perez considers two earlier judgments.

First, RJ, GMcL and CS v Secretary of State for Work and Pensions (PIP) [2017] UKUT 105 (AAC), that held the broad principle should be that a relevant risk is one that a person can reasonably be expected to guard against (even if remote), and that is a real possibility that cannot sensibly be ignored.

Second, KT and SH v Secretary of State for Work and Pensions [2020] UKUT 252 (AAC), that held that in the case of a person who has to remove their hearing aids or cochlear implants while washing, and consequently cannot hear a typical alarm, the risk of a fire occurring (applying RJ) is a “real possibility that cannot be ignored … having regard to the nature and gravity of the feared harm”.

In doing so, he holds that regardless of the low risk of a fire materialising, the potential consequences were sufficiently grave to justify it being a risk which could not be ignored.

He also finds that:

both claimants had to remove their hearing aids in order to bath or shower, and without the aids they cannot hear an alarm sufficiently to realise that it is an alarm; and
whenever either claimant takes a bath or shower a member of their family stays in the house - although the door is locked, it can be unlocked from the other side in an emergency.

As a result, Judge Perez therefore awards both claimants two points under PIP daily living activity descriptor 4(b):

“Needs supervision or prompting to be able to wash or bathe.”

As the DWP had already awarded the claimants 6 daily living points, this meant both now achieved the 8 points needed to qualify for the standard rate of the daily living component.

This judgment is expected to also enable a higher number of other deaf people to successfully obtain PIP.

Both claimants in this case were assisted by the National Deaf Children’s Society (NDCS).

A summary of the decision by Judge Perez is available from landmarkchambers.co.uk

The full decision by Judge Perez - KT and SH v Secretary of State for Work and Pensions (PIP) [2020] UKUT 252 (AAC) – is available from gov.uk.