SP v SSWP (PIP)

For PIP daily living descriptor 4e, “bath or shower” is disjunctive. A claimant satisfies the descriptor if they need assistance to get into or out of either an unadapted bath or an unadapted shower; they need not require assistance with both.

The assessment concerns functional ability in relation to a standard, unadapted facility. An adapted bath or shower may evidence functional limitation, but a tribunal must investigate why it is used and must not lower the assessment standard by testing only the adapted facility. The reliability requirements in regulation 4 also apply, including safety and the ability to perform an activity within a reasonable time.

The claimant appealed against a First-tier Tribunal decision of 29 April 2015 which had awarded points for some daily-living and mobility activities but had refused PIP because neither component reached the statutory threshold.

He used a walk-in bath with a shower above it. He had said that he could not get into or out of a normal bath because of back problems, but the tribunal considered his ability to use the adapted bath and awarded no points under descriptor 4e. It also made no adequate findings on whether chronic fatigue syndrome prevented dressing and undressing within a reasonable time.

The central issues were the meaning of “bath or shower” in descriptor 4e and whether the assessment concerned an unadapted facility.

1. Appeal allowed. The First-tier Tribunal had erred in law. Its decision was set aside and the appeal was remitted for a complete rehearing before a differently constituted tribunal.

2. Descriptor 4e in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 is to be read in its ordinary, context-sensitive sense. The word “or” joins alternatives. A claimant meets the descriptor where they need assistance to get into or out of a bath, or need such assistance in relation to a shower. The claimant need not establish both forms of difficulty. This construction was consistent with the reasonable everyday approach to benefit descriptors in R(IB) 3/02 and with the contextual approach noted in [2015] UKUT 0304 (AAC).

3. The relevant functional assessment is of entry into and exit from an unadapted bath or shower. Although descriptor 4e does not expressly say so, the definition of bathing in Schedule 1 and the purpose of a uniform functional assessment supported that construction. An adapted facility does not itself establish entitlement. The tribunal must examine why it is present and whether the claimant needs it because of functional limitation. Equally, it must not assess a claimant who reasonably needs an adaptation solely by reference to their ability to use it. That would make satisfaction of the descriptor harder for a more disabled claimant.

4. The tribunal failed to investigate the claimant’s asserted inability to use an unadapted bath. That failure breached its inquisitorial function and was material: if he required assistance with an unadapted bath, he could obtain the additional point needed to reach the daily-living threshold, irrespective of his ability to use a shower.

5. The tribunal also gave inadequate reasons on dressing and undressing. Its findings about chronic fatigue required it to address whether the claimant could dress and undress, including his upper and lower body, safely and within a reasonable time as required by regulation 4.

6. The new tribunal must reconsider all issues afresh, assess circumstances at the date of the decision under appeal, and make its own findings. The Upper Tribunal made no finding on ultimate entitlement to either PIP component.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the claimant’s appeal, set aside the First-tier Tribunal decision for errors of law, and remitted the case for a fresh hearing.
• First-tier Tribunal: On 29 April 2015, varied the Secretary of State’s decision by awarding additional points, but refused the appeal because the claimant did not reach either statutory threshold.
• Secretary of State: By decision dated 21 May 2014, awarded six daily-living points and no mobility points, so made no award of PIP.