AB v Secretary of State for Work and Pensions

A detachable device may qualify as an “aid or appliance” for personal independence payment where it improves, provides or replaces an impaired physical or mental function. The relevant distinction is between permanently implanted devices, which do not ordinarily qualify, and detachable devices that perform the relevant function. A bone anchored hearing aid qualifies where its external processor is integral to restoring hearing, even though the system also includes an implanted component.

The appellant, who had severe bilateral hearing loss and used a bone anchored hearing aid, appealed against a decision of the First-tier Tribunal which awarded points for washing and bathing and engaging with other people but none for communicating verbally. The First-tier Tribunal incorrectly treated the device as a cochlear implant and concluded that it was not an aid. The issue before the Upper Tribunal was whether the bone anchored hearing aid qualified as an “aid or appliance” for descriptor 7(b) in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013.

1. The appeal was allowed. The First-tier Tribunal’s decision involved an error of law because it had misstated the nature of the appellant’s device and failed to make adequate findings about descriptor 7(b).
2. Regulation 2 of the Social Security (Personal Independence Payment) Regulations 2013 defines an “aid or appliance” as any device which improves, provides or replaces an impaired physical or mental function, including a prosthesis.
3. The case law distinguishes permanently implanted devices, such as artificial joints, stents and retinal implants, from detachable devices which may qualify. The relevant question is how the device functions in practice.
4. A bone anchored hearing aid has an implanted component and a detachable external processor. Both components are integral to its operation, and the processor improves the appellant’s impaired hearing. The BAHA therefore qualifies as an aid or appliance for descriptor 7(b).
5. The judge noted that cochlear implants had previously been left outside the observations in MR v Secretary of State for Work and Pensions (PIP) [2017] UKUT 86 (AAC) because of uncertainty about their operation. If, as understood, a cochlear implant likewise requires an implanted component and a detachable external element, it should be treated in the same way as a BAHA.
6. The decision was set aside and remade. The appellant scored 8 points for daily living activities under descriptors 4(b), 7(b) and 9(c), and 0 points for mobility. Entitlement to the standard rate of the daily living component took effect from 30 May 2023.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal and set aside the First-tier Tribunal’s decision under section 12 of the Tribunals, Courts and Enforcement Act 2007. The decision under appeal was remade.
• First-tier Tribunal (Social Entitlement Chamber): on 31 May 2024, awarded points under descriptors 4(b) and 9(c) but none under descriptor 7(b), leaving the appellant below the threshold for the standard rate of the daily living component.