SB v Secretary of State

For Personal Independence Payment, whether an activity can be performed safely under regulation 4 of the Social Security (Personal Independence Payment) Regulations 2013 depends on the likelihood of harm, not its potential seriousness. That inquiry is nevertheless distinct from whether a claimant needs supervision under a descriptor which expressly provides for supervision.

Where supervision is in issue, the tribunal must assess whether it is reasonably needed to enable safe performance. It may consider the seriousness of the consequences if supervision is absent. For preparing food, the assessment must cover every task involved in making food ready for cooking or eating, including handling hot food after microwave cooking.

The claimant, who experienced non-epileptic seizures, appealed against a First-tier Tribunal decision upholding the refusal of personal independence payment. The tribunal had awarded points for washing and bathing but none for dressing and undressing. It found that she could prepare and cook a simple meal using a microwave.

Permission to appeal was granted on the basis that the tribunal may have concentrated on cooking rather than preparation and may have made inconsistent findings about seizure-related needs. The Upper Tribunal considered whether the tribunal had properly assessed the need for supervision when preparing food and whether its findings on washing, bathing, dressing and undressing were inconsistent.

1. Appeal allowed. The First-tier Tribunal erred in law in its approach to Activity 1, preparing food. Its decision was set aside and the case was remitted for a rehearing before a differently constituted tribunal.

2. Judge Bano agreed with the construction of regulation 4 adopted in CE v Secretary of State for Work and Pensions (PIP) [2015] UKUT 0643 (AAC). For the regulation 4 safety criterion, the decisive issue is the likelihood of harm, rather than the seriousness of harm if it occurs.

3. That conclusion did not determine whether descriptor 1e applied. A need for supervision under a descriptor is analytically and conceptually distinct from the ability to perform an activity safely under regulation 4. For activities which expressly include supervision descriptors, the tribunal must separately decide whether supervision is reasonably needed to enable safe performance. In doing so, it may assess the possible seriousness of the consequences if supervision is absent.

4. The tribunal had to consider the full range of tasks involved in preparing food: making it ready for cooking or eating, cooking it, removing hot food from the microwave, and making it ready to eat. It failed to consider the material risk of burns or scalds if the claimant lost consciousness while carrying hot food unsupervised.

5. The findings that assistance with washing and bathing was needed more often than assistance with dressing and undressing were open to the tribunal on the evidence. That ground of appeal failed. The new tribunal must determine all activities afresh and approach Activity 1 in accordance with this decision.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the claimant’s appeal on an error of law, set aside the First-tier Tribunal’s decision, and remitted the case for rehearing.

• First-tier Tribunal: Upheld the refusal of personal independence payment.