CF v Secretary of State for Work and Pensions (PIP)

Prescribed compression stockings constitute “therapy” under the Social Security (Personal Independence Payment) Regulations 2013. Difficulties putting them on or removing them must therefore be considered under daily living activity 3, rather than also under activity 6. Activity 6 may nevertheless require separate consideration of difficulties with ordinary clothing.

For activity 9, tribunals must assess face-to-face engagement in a social context, including interaction, body language and establishing relationships. Telephone or workplace abilities may provide relevant evidence but are not determinative. Where fairness may require an in-person hearing, the tribunal must consider that issue of its own motion and give reasons if it proceeds by telephone.

The appellant challenged a First-tier Tribunal decision dated 5 June 2023 dismissing her appeal against the Secretary of State’s refusal of personal independence payment. She relied on difficulties caused by lymphoedema, prescribed compression stockings, and anxiety and depression.

The appeal concerned the correct treatment of compression stockings under activities 3 and 6, the approach to activity 9, and whether it was fair to proceed with a telephone hearing when the appellant had requested a face-to-face hearing.

1. Appeal and remission. The appeal was allowed. The First-tier Tribunal’s decision involved errors of law and was set aside under section 12 of the Tribunals, Courts and Enforcement Act 2007. The case was remitted for rehearing by a fresh tribunal.
2. Compression stockings. Prescribed compression stockings are “therapy” within Part 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013. The ordinary meaning of therapy includes treatment by systems of activity intended to alleviate symptoms. The use of stockings to aid lymphatic drainage and reduce swelling fell within that meaning. The tribunal therefore had to consider whether the appellant needed supervision, prompting or assistance to manage therapy taking no more than 3.5 hours weekly, and whether failure to manage it was likely to cause deterioration in health. This approach was consistent with PM v SSWP (PIP) [2018] UKUT 138 (AAC) and AS v SSWP [2017] AACR 31.
3. If stockings are prescribed therapy, difficulties putting them on or removing them fall to activity 3 and not also activity 6. Prescription stockings are not ordinary clothing, and the specific therapy provision takes precedence over the more general dressing provision. This followed the approach in PE v SSWP (PIP) [2015] UKUT 309 (AAC). Activity 6 nevertheless required findings about the appellant’s ability to dress using ordinary socks and clothing, and about any other dressing difficulties.
4. Activity 9. The tribunal misdirected itself by treating the appellant’s ability to use the telephone and engage at work as answering the question whether she could engage face to face. Those matters may provide relevant evidence from which inferences can be drawn, but the tribunal must explain those inferences. It had to assess face-to-face engagement with adults not known well, including contextually appropriate interaction, understanding body language and establishing relationships. It then had to determine whether the required support was prompting or social support, applying SSWP v MM [2019] UKSC 34.
5. Fairness of the hearing. A telephone hearing is an oral hearing, but the tribunal retains a continuing duty to conduct proceedings fairly and in accordance with the overriding objective. Given the appellant’s request for a face-to-face hearing and the relevance of her presentation to disputed evidence from a face-to-face assessment, the tribunal had to consider of its own motion whether an adjournment was required and give reasons if it proceeded by telephone. Its failure to do so was material. The case was remitted for an oral hearing before a new tribunal, which must assess circumstances at 6 May 2022.

• First-tier Tribunal (Social Entitlement Chamber): On 5 June 2023, dismissed the appellant’s appeal against the Secretary of State’s decision that she was not entitled to PIP.
• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for error of law, and remitted the case for rehearing by a fresh tribunal.