DO v SSWP (PIP)

The PIP required period condition is a separate entitlement condition. It is not automatically met because the claimant obtains eight or more points under the 50% descriptor-scoring rule in regulation 7.

Under Part 3 of the Social Security (Personal Independence Payment) Regulations 2014, the claimant must fairly be regarded as having, or as likely to have, limited or severely limited ability throughout the three-month historical and nine-month prospective periods. The assessment uses the Part 2 rules but excludes regulation 7's 50% rule.

This approach must accommodate fluctuating conditions. A claimant whose symptoms most of the time produce the necessary limitation may qualify. A claimant expected to recover during the prospective period so that the threshold limitation ceases does not meet the condition.

The claimant sought Personal Independence Payment following bowel-cancer surgery and the fitting of a stoma. The First-tier Tribunal found that he had substantial short-term post-operative needs and scored six points throughout the prospective period for managing toilet needs. It found, however, that he recovered from surgery within about six months and did not require assistance worth at least eight points throughout the nine months after his claim date.

The First-tier Tribunal dismissed the appeal. Permission to appeal was granted to determine the relationship between regulation 7's rule for descriptors satisfied on more than 50% of days and the required period condition in regulation 12 of the Social Security (Personal Independence Payment) Regulations 2014. The Secretary of State initially supported the appeal, but later withdrew that support.

The central issue was whether a claimant who scores at least eight points on more than 50% of days in the required period necessarily satisfies the required period condition.

1. Appeal dismissed. The First-tier Tribunal made no material error of law and its decision refusing PIP stood.

2. The required period condition is distinct from the assessment which determines whether a claimant has limited or severely limited ability. Section 81 of the Welfare Reform Act 2012 creates two broad entitlement conditions. It cannot have been intended that satisfying the Part 2 assessment by use of regulation 7's 50% scoring rule would automatically satisfy the separate condition.

3. Regulation 12 must therefore be applied by a notional Part 2 assessment at every time in the statutory 12-month window, but without the 50% rule in regulation 7. The claimant must fairly be said to have had, or to be likely to have had, limited or severely limited ability throughout that window. This does not require a literal assessment at every instant or day-by-day findings.

4. The approach must be applied sensibly to fluctuating conditions. Where symptoms would most of the time produce the necessary limitation, the claimant is not excluded merely because symptoms fluctuate. But where health is likely to improve during the nine-month prospective period so that the condition no longer produces the necessary limitation, the required period condition is not met.

5. On the Tribunal's findings, the claimant's recovery meant that, apart from toileting difficulties worth six points, he would not have points-scoring difficulties throughout the prospective period. He therefore lacked limited ability at every time in that period. Any alleged failure to make more precise findings about bad days or ability on the claim date was immaterial.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal decision was not set aside.
• First-tier Tribunal: on 14 January 2015, sitting at North Shields, dismissed the claimant's appeal against the refusal of PIP.