MM & Anor v SSWP

For Personal Independence Payment purposes, “taking nutrition” is confined to the physical and mental acts specified in Schedule 1: cutting food, conveying food or drink to the mouth, and chewing and swallowing it. It does not assess whether the food or drink is nutritious, healthy, sufficient, or suitable for a particular diet.

The requirement in regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 that an activity be performed to an acceptable standard applies to the performance of those acts. It does not introduce a qualitative test of the diet consumed. Prompting to eat properly or healthily does not therefore, without prompting needed to perform the acts of eating or drinking, satisfy the descriptor for taking nutrition.

Two claimants appealed against First-tier Tribunal decisions which had upheld refusals of the daily living component of PIP. Each had six daily-living points and would have qualified for the standard rate if points had been awarded under activity 2, “taking nutrition”.

MM’s evidence concerned digestive symptoms and restrictions on what she could eat. BJ relied on depression, alcoholism and diabetes, and on a need for prompting to eat properly and prepare healthier meals. The common issue was whether activity 2 extends to dietary choices, adequate nutrition, or eating nutritiously.

The Upper Tribunal considered the definition of “take nutrition” in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013, the acceptable-standard requirement in regulation 4(2A), and the earlier decision in SA v SSWP [2015] UKUT 512 (AAC).

1. Both appeals were dismissed. Neither First-tier Tribunal had erred on a material point of law by awarding no points for activity 2.

2. Under Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013, “take nutrition” has a defined and limited meaning. Apart from therapeutic feeding, it comprises cutting food into pieces, conveying food and drink to the mouth, and chewing and swallowing. The activity concerns the mechanics and ability of eating and drinking, not the nutritious quality, healthiness, sufficiency or range of the food consumed.

3. Regulation 4(2A) requires a claimant to perform the activity safely, to an acceptable standard, repeatedly and within a reasonable time. For activity 2, the acceptable-standard criterion concerns the performance of the specified acts. It does not require the diet itself to meet a nutritional or healthy-eating standard. Accordingly, descriptor 2d requires prompting to perform those acts, not prompting to eat sensibly or nutritiously.

4. The tribunal declined to follow SA v SSWP [2015] UKUT 512 (AAC) insofar as it treated the nutritious quality of food as falling within activity 2. The earlier decision might instead have turned on a need for prompting actually to eat, or to cut up and consume food; on either basis it did not assist the appellants.

5. MM’s difficulty concerned the content of her diet, not assistance or prompting with eating or drinking. BJ’s evidence concerned prompting to prepare meals and eat properly, rather than prompting to eat food presented to him. The findings that neither satisfied an activity 2 descriptor were therefore open to the First-tier Tribunals. MM’s remaining grounds also disclosed no material error of law.

• Upper Tribunal (Administrative Appeals Chamber): dismissed both appeals and left the First-tier Tribunal decisions undisturbed.
• First-tier Tribunal, Manchester: on 1 June 2015, dismissed MM’s appeal under reference SC946/15/00512.
• First-tier Tribunal, Sheffield: on 8 April 2015, dismissed BJ’s appeal under reference SC147/14/01636.