SO v The Secretary of State for Work and Pensions

For Activity 2 of the Social Security (Personal Independence Payments) Regulations 2013, a claimant may be unable to take nutrition reliably where a physical or mental condition prevents them from regulating the quantity eaten. The inquiry remains directed to the activity of eating and drinking, rather than the quality of the diet.

The tribunal must determine the condition’s causal effect and assess whether the activity can be performed safely, to an acceptable standard, repeatedly and within a reasonable time. Compulsive overeating may engage the requirement to perform the activity repeatedly where the claimant cannot stop once further eating is no longer reasonably required. The outcome depends on detailed findings of fact.

The appellant, a former soldier with anxiety, depression and PTSD, appealed against the refusal of Personal Independence Payment. The First-tier Tribunal dismissed his appeal, awarding no points for Activity 2, taking nutrition, and two points under Activity 9, engaging with other people face to face.

He said that PTSD caused him to overeat and that his wife controlled his food intake. The First-tier Tribunal treated the issue as limited to his physical ability to convey food to his mouth. Both parties agreed before the Upper Tribunal that its approach to Activity 2, and its reasons on Activity 9, were legally deficient.

The central issue was whether a condition causing compulsive overeating could bring a claimant within Activity 2 and, if so, how the reliability conditions in regulation 4(2A) applied.

1. Appeal allowed. The First-tier Tribunal made errors of law in its treatment of both Activity 2 and Activity 9. Its decision was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

2. The statutory definition of taking nutrition ordinarily concerns the actions of cutting food, conveying it to the mouth, chewing and swallowing. The nutritional quality of the food is not itself the subject of the activity. Nevertheless, the definition must be read with regulation 4(2A) of the Social Security (Personal Independence Payments) Regulations 2013.

3. A claimant whose physical or mental condition prevents them from regulating the quantity eaten may qualify under Activity 2 if they cannot perform that activity safely, to an acceptable standard, repeatedly or within a reasonable time. The tribunal must make findings on the nature of the condition, its causal effect on eating, and whether prompting or other assistance is required and effective.

4. Compulsive overeating may engage the requirement to perform the activity repeatedly. That may occur where the claimant cannot stop eating when further repetition is no longer reasonably required. Safety may arise where eating creates risks such as choking or serious vomiting. Whether another reliability condition applies will depend on the evidence and factual context.

5. The First-tier Tribunal had wrongly confined its enquiry to the appellant’s physical capacity to eat. It did not determine whether PTSD caused excessive eating or assess the reliability conditions and any consequent need for prompting. It also failed adequately to investigate whether the appellant needed social support, rather than prompting alone, under Activity 9, or to explain why the higher descriptors did not apply.

6. The case was remitted to a differently constituted First-tier Tribunal for a fresh oral hearing and redetermination of all issues.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision for errors of law, and remitted the case for a fresh hearing.
• First-tier Tribunal (Social Entitlement Chamber): on 6 November 2020 dismissed the appellant’s appeal against the refusal of Personal Independence Payment.
• Secretary of State for Work and Pensions: on 29 November 2018 decided that the appellant was not entitled to Personal Independence Payment.