AP v SSWP

For personal independence payment, the ability to carry out a scheduled activity is assessed as a whole. A claimant is not limited merely because they can perform it only in one of several normal, reasonable and practical ways. An ordinary object is an aid only where it assists with an impaired function required for that activity. Sitting on a bed to dress will not ordinarily qualify.

For moving around, distance is the principal determinant. Descriptor 2(c) in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 does not apply where the claimant can move more than 50 metres with an aid. Walking must also be assessed for safety, acceptable standard, repeatability and reasonable time, including the effect of halts.

The claimant appealed against a First-tier Tribunal decision of 13 August 2015 which had awarded five daily-living points and four mobility points, leaving her without an award of personal independence payment.

She contended that a bed used while dressing and a bath seat were aids; that mobility descriptor 2(c) applied because of the distance she could walk unaided; and that the tribunal had failed to assess her walking speed and stops. The appeal also required the Upper Tribunal to choose between the approaches in JP v SSWP [2015] UKUT 529 (AAC) and L v SSWP [2015] UKUT 612 (AAC) on descriptor 2(c).

1. The appeal was allowed only on the mobility ground. The First-tier Tribunal’s decision was set aside for error of law. The Upper Tribunal remade the decision and dismissed the claimant’s appeal against the Secretary of State’s decision, because no entitlement to either component arose.

2. On dressing and undressing, the tribunal had made no error. Following CW v SSWP [2016] UKUT 0197 (AAC), an aid must overcome an impaired function involved in the particular activity. The relevant question is whether the claimant can carry out the activity in a normal manner, not whether they can use every possible manner. Sitting on a bed to put on lower garments was a normal, reasonable and practical means of dressing. On the evidence, the claimant could dress unaided.

3. The tribunal erred concerning the bath seat. It had overlooked relevant local-authority evidence and used wording which indicated that the claimant got into and out of the bath using a bath seat, while awarding no points. That error was immaterial because two additional daily-living points would not establish entitlement.

4. On mobility descriptor 2(c), the Tribunal followed JP v SSWP [2015] UKUT 529 (AAC) and rejected the contrary obiter view in L v SSWP [2015] UKUT 612 (AAC). A claimant who can move more than 50 metres, aided or unaided, has crossed the relevant distance threshold. Descriptor 2(c) does not isolate the distance which can be achieved unaided while disregarding greater aided mobility.

5. The tribunal had also erred by failing to address walking speed, halts and the distance achievable without stopping under regulation 4. Remittal was disproportionate. On the claimant’s own evidence, she could walk nearly 100 metres before each halt and could do so repeatedly within a reasonable time. Descriptor 2(b), rather than a higher-scoring descriptor, applied.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal for error of law on mobility assessment, set aside the First-tier Tribunal decision under Tribunals, Courts and Enforcement Act 2007, and remade it by dismissing the appeal against the Secretary of State’s decision.
• First-tier Tribunal: on 13 August 2015, awarded five points for daily living and four points for mobility, resulting in no award of personal independence payment.
• Secretary of State: decision of 31 December 2014, challenged by the claimant.