CB v Secretary of State for Work and Pensions

An error of law occurs where a tribunal fails properly to assess evidence that a claimant needs an aid to rise from a toilet seat, including evidence that the claimant uses a stick for that purpose. Where the error is material, the Upper Tribunal may set aside and re-make the decision under section 12 of the Tribunals, Courts and Enforcement Act 2007. For personal independence payment, the statutory definition of taking nutrition comprises several necessary components. An aid or appliance need assist with only one such component. The latter conclusion was expressly stated to be non-binding opinion because it was unnecessary to the disposal of the appeal.

The claimant appealed against a First-tier Tribunal decision dated 7 October 2020. The First-tier Tribunal had awarded only the standard rate of the mobility component of personal independence payment. It rejected arguments that the claimant needed an aid to manage toilet needs and that dentures could constitute an aid or appliance for taking nutrition.

The Upper Tribunal granted permission on both issues. The Secretary of State accepted that the First-tier Tribunal had erred on the toileting issue and invited the Upper Tribunal to award two further daily living points. The central issue was whether the appeal could be disposed of on that basis without deciding the dentures issue.

1. Appeal allowed. The First-tier Tribunal’s decision was erroneous in law and was set aside under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
2. The First-tier Tribunal had failed properly to address the claimant’s consistent evidence that she needed an aid to rise from the toilet seat. Its reliance on an observation that she could rise using a stick did not resolve whether the stick itself was an aid. The error was material because an additional two points under daily living descriptor 5b would produce entitlement to the standard rate of the daily living component.
3. The Upper Tribunal re-made the decision. The claimant was entitled to the standard rate of both the daily living and mobility components from 26 November 2018 to 27 October 2021.
4. The Tribunal declined to determine definitively whether dentures are an aid or appliance, whether loss of teeth must result from an identifiable health condition, or whether dentures can qualify in principle. Those issues were unnecessary to the disposal of the appeal and any discussion would have been non-binding obiter opinion.
5. As non-binding opinion only, the Tribunal indicated that the First-tier Tribunal’s interpretation of the definition of taking nutrition was wrong. The definition in Part 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 identifies cutting food, conveying food and drink to the mouth, chewing, and swallowing as components of taking nutrition. An aid or appliance need assist with only one necessary component; it need not assist with more than one.

• Upper Tribunal (Administrative Appeals Chamber): The First-tier Tribunal decision dated 7 October 2020 was set aside for error of law and the decision was re-made.
• First-tier Tribunal (Social Entitlement Chamber): The appeal against the Secretary of State’s decision was allowed, but only the standard rate of the mobility component was awarded.