LC v SSWP (PIP)

For Personal Independence Payment assessments, a claimant satisfies a descriptor only where the activity can be performed safely, to an acceptable standard, repeatedly and within a reasonable time. Assessment must address the functional task, rather than treating disability-driven choices of easier clothing as removing the underlying difficulty.

A simple meal requires preparation and cooking from fresh ingredients. Ready-prepared microwave meals do not meet that definition. Taking nutrition includes cutting cooked food, as well as conveying it to the mouth and chewing and swallowing it. The applicable descriptor is determined by the claimant’s functional limitations over the required period under the Social Security (Personal Independence Payment) Regulations 2013.

The claimant appealed against a decision of the First-tier Tribunal at Manchester, made on 26 February 2015, which upheld the Secretary of State’s refusal of Personal Independence Payment. The tribunal had awarded points for some daily-living and mobility difficulties, but not enough to establish entitlement.

The claimant had lasting physical impairment to his left arm and hand, and psychological difficulties, following a road traffic accident. The appeal principally concerned food preparation, taking nutrition, dressing and undressing, and the assessment criteria in regulation 4 of the Social Security (Personal Independence Payment) Regulations 2013.

The central issue was whether the First-tier Tribunal had applied the statutory functional criteria and descriptors lawfully to its findings of fact.

1. Appeal allowed. The Upper Tribunal set aside the First-tier Tribunal’s decision for errors of law concerning dressing and undressing and, as conceded by the Secretary of State, food preparation and taking nutrition. The existing findings, supplemented by accepted evidence, permitted the Upper Tribunal to re-make the decision fairly.

2. Under regulation 4(2A), ability must be assessed by reference to safety, acceptable standard, repetition and reasonable time. Cooking a simple meal does not require use of an oven or the carrying of hot pans. However, a microwave meal means more than heating a ready-prepared meal: the claimant must be able to prepare and cook a one-course meal from fresh ingredients. The claimant’s inability to cut cooked food established an inability to prepare fresh ingredients. He therefore needed assistance or supervision under descriptor 1e and scored four points.

3. Taking nutrition includes cutting cooked food, conveying it to the mouth, chewing and swallowing. Ability to eat food already cut up was insufficient. The claimant needed assistance to cut cooked food and satisfied descriptor 2b(iii), scoring two points.

4. The tribunal could not assess dressing only by reference to pull-on clothing and shoes with laces removed where that choice was dictated by disability. Applying the guidance in PE-v- SSWP [2015] UKUT 309 (AAC), the relevant assessment had to address the bilateral dexterity needed for buttons, zips, laces, socks and outer clothing. The claimant could not complete buttoning and fastening tasks within the reasonable-time requirement and needed assistance on more than 50% of days. Descriptor 6e, attracting four points, applied.

5. The tribunal’s two-point award for prompting with face-to-face engagement was retained. It was unnecessary to decide the distinction between prompting and social support because the claimant’s total daily-living score was 13. He was entitled to the enhanced daily-living component for five years, from 9 September 2013 to 8 September 2018. No mobility-component award was made.

• Upper Tribunal (Administrative Appeals Chamber): The appeal succeeded. The tribunal set aside the First-tier Tribunal’s decision and re-made it to award the enhanced daily-living component of Personal Independence Payment.

• First-tier Tribunal (Manchester): On 26 February 2015, it upheld the Secretary of State’s decision that the claimant was not entitled to Personal Independence Payment.

• Permission: A District Tribunal Judge refused permission to appeal. Upper Tribunal Judge Paula Gray granted permission on 12 June 2015 under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and rule 40(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008.