BS v The Secretary of State for Work and Pensions

An incontinence pad is an aid for the purposes of the daily-living descriptors in Social Security (Personal Independence Payment) Regulations 2013. It is a device which improves the impaired physical function of bladder or bowel control.

A claimant who needs incontinence pads to manage involuntary evacuation of either the bladder or bowel cannot manage incontinence unaided. If the pads are needed to manage that incontinence, descriptor 5b applies and scores two points. The reference to bowel or bladder is disjunctive.

The claimant, who had bladder incontinence among other conditions, was refused personal independence payment. On appeal, the First-tier Tribunal awarded points under other daily-living and mobility activities but none for managing toilet needs or incontinence. It held in part that incontinence pads were not aids within the relevant Regulations.

The claimant appealed to the Upper Tribunal. The Secretary of State supported the appeal. The central issue was whether a claimant who needs incontinence pads to manage incontinence falls within descriptor 5b.

1. Appeal allowed. The First-tier Tribunal erred in law by treating incontinence pads as outside the definition of an aid.

2. Under regulation 2 of the Social Security (Personal Independence Payment) Regulations 2013, an aid is a device which improves, provides or replaces impaired physical or mental function. An incontinence pad falls squarely within that definition because it improves impaired bladder or bowel control.

3. The consultation response incorporated by the explanatory memorandum, the assessment guide, and the Secretary of State’s concession reinforced that construction. The guide was persuasive only, but was consistent with the statutory language.

4. Following JM v Secretary of State for Work and Pensions (PIP) [2016] UKUT 0296 (AAC), a claimant using incontinence pads does not satisfy descriptor 5a, which requires management unaided. A claimant who needs pads to manage involuntary evacuation of the bowel or bladder satisfies descriptor 5b.

5. The word “or” in the definition of managing incontinence is disjunctive. Bladder incontinence alone, or bowel incontinence alone, may therefore found entitlement under descriptor 5b.

6. The decision was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007. Further findings were needed, including the level and frequency of incontinence. The case was remitted for a complete rehearing before a differently constituted tribunal.

• Upper Tribunal (Administrative Appeals Chamber): allowed the claimant’s appeal, set aside the First-tier Tribunal’s decision for error of law, and remitted the case for rehearing.
• First-tier Tribunal: Newcastle tribunal, reference SC225/15/00396, decided on 3 August 2015. It awarded six daily-living points and four mobility points, but awarded no points for activity 5 in respect of incontinence.