CW v Secretary of State for Work and Pensions

For the personal independence payment activity of taking nutrition, the definition in Part 1 of Schedule 1 is not cumulative. A claimant who needs an aid or appliance to perform any essential component of taking nutrition, including cutting food into pieces, satisfies descriptor 2(b)(i), even if able to convey food and drink to the mouth, chew and swallow unaided.

A tribunal which contemplates reducing points previously awarded must ordinarily give the claimant notice and a fair opportunity to address its concerns. Failure adequately to consider material evidence or explain conclusions on disputed descriptors is also an error of law.

The claimant appealed against a First-tier Tribunal decision of 1 March 2021 which had dismissed his appeal against refusal of personal independence payment. The First-tier Tribunal reduced the daily-living points awarded by the Secretary of State from five to two, and awarded no points for washing and bathing or dressing and undressing.

Both parties agreed that the decision contained material errors of law and should be set aside. The Upper Tribunal also determined a wider issue concerning the meaning of “take nutrition” in Part 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013: whether a claimant must be unable to perform every listed component before scoring under descriptor 2(b)(i).

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for material errors of law and the appeal was remitted for a complete rehearing before a differently constituted tribunal.

2. The First-tier Tribunal acted unfairly when it reduced points previously awarded by the Secretary of State without giving the claimant or his representative any indication that a reduction was under consideration, or an opportunity to answer the concerns leading to it. Such an error became material because, absent the other errors, sufficient points might have been awarded to establish entitlement.

3. The First-tier Tribunal also failed properly to consider the evidence and to give adequate reasons for refusing points under the washing-and-bathing and dressing-and-undressing activities.

4. Its construction of “take nutrition” in Part 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 was wrong. The components—cutting food, conveying food and drink to the mouth, chewing and swallowing—are each essential components of the overall task. They do not form a cumulative threshold requiring inability to perform every component.

5. Accordingly, a claimant who needs an aid or appliance, such as adapted cutlery, to cut food into pieces meets descriptor 2(b)(i) and scores two points, irrespective of an ability to perform the other components unaided. The contrary interpretation would be inconsistent with the wording, produce illogical results, and require an unusually extensive disability for only two points.

The fresh First-tier Tribunal must reconsider the appeal afresh, considering only circumstances obtaining at the date of the Secretary of State’s decision, although later evidence may be admitted if it relates to that time.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal decision for material errors of law, and remitted the case for a fresh oral hearing: [2022] UKUT 281 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): on 1 March 2021 dismissed the claimant’s appeal against refusal of personal independence payment and reduced the daily-living points awarded by the Secretary of State.