JT v SSWP

When assessing whether a claimant can perform a prescribed activity safely, the tribunal must consider whether there is a real possibility of harm that cannot be ignored, having regard to both the likelihood and the gravity of the consequences. The harmful event need not occur on a majority of days. The majority-of-days requirement in regulation 7 must not be used to replace or distort the separate safety assessment under regulation 4(2A). Adequate findings of fact are required, including whether the claimant has sufficient warning to use an aid and the consequences if the feared event occurs.

The appellant claimed personal independence payment after a decision-maker awarded four points for daily living activities and none for mobility. Following mandatory reconsideration, the First-tier Tribunal increased the scores to six and four respectively, but upheld the refusal of an award.

On appeal, the appellant argued that the First-tier Tribunal had insufficiently considered prompting for engaging with people face to face and had inadequately considered safety and risk when assessing managing toilet needs or incontinence. Permission to appeal was granted. The Upper Tribunal considered whether the First-tier Tribunal had applied the correct approach to regulation 4(2A)(a) and regulation 7 of the Social Security (PIP) Regulations 2013.

1. Appeal allowed. The First-tier Tribunal’s decision involved errors of law and was set aside under section 12(2) of the Tribunals, Courts and Enforcement Act 2007.
2. In assessing whether an activity can be performed safely under regulation 4(2A)(a) of the Social Security (PIP) Regulations 2013, the tribunal must consider whether there is a real possibility of harm occurring which cannot be ignored. It must have regard to both the likelihood of harm and the severity of its consequences. Harm need not be more likely than not.
3. The regulation 7 majority-of-days rule does not govern the construction of regulation 4(2A). A descriptor may apply where, for the majority of days, the claimant cannot perform the activity safely, even though the harmful event or trigger occurs on fewer than 50 per cent of days.
4. The First-tier Tribunal accepted that the appellant’s leg could give way and that muscle spasms were uncontrolled, but did not make sufficient findings about the safety of managing toilet needs. In particular, it did not address whether the appellant would have sufficient warning to use a grab rail or the consequences of a fall. Its focus on the occasional nature of the spasms risked conflating regulations 4 and 7 and applying the wrong test.
5. The guidance in RJ, GMcL and CS v Secretary of State for Work and Pensions (PIP) [2017] UKUT 105 (AAC), reported as [2017] AACR 32, was applied. The remaining ground concerning prompting was not determined.
6. The appeal was remitted to the First-tier Tribunal for rehearing. The new tribunal must make its own findings, must not include any member of the tribunal whose decision was set aside, and must not treat the earlier findings as binding. No view was expressed on entitlement to PIP.

• Upper Tribunal (Administrative Appeals Chamber): The First-tier Tribunal decision of 19 May 2023 was set aside for error of law and the appeal was remitted for rehearing.
• First-tier Tribunal (Social Security and Child Support): The tribunal increased the assessed points but upheld the refusal of a PIP award.
• Secretary of State’s decision: On 20 January 2023, the decision-maker awarded four daily-living points and no mobility points. Mandatory reconsideration did not alter the decision.