QWH v The Secretary of State for Work and Pensions

When assessing a personal independence payment descriptor, the question is whether it is satisfied on over 50% of the days in the required period. This differs from asking whether it is satisfied for more than half of the time on each day. The tribunal must also assess whether the activity can be performed safely, to an acceptable standard, repeatedly and within a reasonable time period. Evidence that a claimant can perform an activity does not resolve whether prompting or another aid is needed. A tribunal must address material evidence of mental or physical limitations and make adequate findings on the relevant descriptor. In particular, a diagnosis of dyslexia requires consideration of whether an aid or appliance is needed for reading and understanding. Failure to make those findings may amount to an error of law requiring remittal.

The claimant appealed against a decision of the First-tier Tribunal concerning her entitlement to the daily living component of personal independence payment. The First-tier Tribunal awarded the enhanced mobility component but confirmed only four daily living points.

Permission to appeal was granted on issues concerning preparation of food, taking nutrition, dressing and undressing, and reading and understanding. The Upper Tribunal also considered whether evidence supplied after the First-tier Tribunal’s decision should have been taken into account, and whether toilet needs and budgeting had been properly raised. The central issues were whether the First-tier Tribunal had made adequate findings under the personal independence payment assessment regulations and had applied the correct percentage-days test.

1. Appeal allowed in part. The First-tier Tribunal’s decision was set aside so far as it concerned the daily living component. That component was remitted to a freshly constituted First-tier Tribunal for redetermination entirely afresh.
2. The First-tier Tribunal materially erred in relation to preparing food. It failed to consider whether the claimant needed prompting, adopted an inadequate health-care-professional finding, failed to explain its conclusion on mental ability, and failed to make findings on whether the activity could be performed unaided repeatedly, to an acceptable standard and within a reasonable time period. Evidence that a claimant can prepare meals does not determine whether prompting is needed.
3. The same deficiencies affected taking nutrition. The First-tier Tribunal misstated the evidence about eating and drinking, failed adequately to consider prompting, and failed to apply the relevant functional criteria.
4. Under regulation 7 of the Social Security (Personal Independence Payment) Regulations 2013, the correct test is whether a descriptor is satisfied on over 50% of the days of the required period. References to performing an activity for more than 50% of the time or for a majority of the time stated the wrong test. In this case the error could have imposed too high a threshold.
5. The First-tier Tribunal also erred in relation to reading and understanding signs, symbols and words by failing to determine whether the claimant needed an aid or appliance because of dyslexia. It was insufficient that she had not specifically identified an aid.
6. The challenge based on evidence supplied after the First-tier Tribunal’s decision was not arguable. Section 12(8)(b) of the Social Security Act 1998 concerns evidence relating to the date of the Secretary of State’s decision. Later evidence supplied after the First-tier Tribunal’s decision would need to satisfy the test in Ladd v Marshall [1954] EWCA Civ 1.
7. It was open to the First-tier Tribunal not to treat toilet needs or budgeting as issues raised by the appeal on the evidence before it. Those matters could nevertheless be raised afresh on remittal. The Upper Tribunal did not need to decide the challenges concerning an oral hearing or physical assistance with dressing and undressing.

• First-tier Tribunal (Social Entitlement Chamber): On 19 October 2023, allowed the appeal concerning mobility, awarding the enhanced mobility component, but confirmed four daily living points and no daily living award.
• Upper Tribunal (Administrative Appeals Chamber): Set aside the decision concerning the daily living component and remitted that component for an entirely fresh rehearing before a differently constituted panel.