MK (by his appointee, FM) v Secretary of State for Work and Pensions

For Personal Independence Payment, managing prescribed or recommended therapy may include cleaning and sterilising essential therapeutic equipment where failing to do so is likely to worsen the claimant’s health. The relevant time is the time required for supervision, prompting or assistance, rather than the duration of the therapy itself.

A First-tier Tribunal must address the applicable statutory definitions and descriptors, make findings on material evidence, and give adequate reasons. It must assess the claimant’s functioning at the date of the Secretary of State’s decision. Speculation about abilities that might have developed in different circumstances, including during the Covid-19 pandemic, cannot replace that assessment.

The appellant, a young person with primary ciliary dyskinesia, hearing loss and low mood, appealed against a First-tier Tribunal decision dismissing his appeal against the refusal of Personal Independence Payment. He had previously received the care component of Disability Living Allowance.

The First-tier Tribunal awarded six points for managing therapy but no points for communicating verbally, making budgeting decisions or planning and following journeys. The appeal concerned whether the Tribunal had adequately applied the statutory definitions and descriptors, evaluated the evidence, and explained its conclusions.

1. Outcome. The appeal was allowed. The First-tier Tribunal’s decision involved errors of law, was set aside under section 12 of the Tribunals, Courts and Enforcement Act 2007, and the case was remitted to a fresh First-tier Tribunal for an oral rehearing.
2. Managing therapy. Cleaning and sterilising the acapella device could fall within managing therapy under Part of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013. It was part of the activity required to manage the therapy because failure to perform it was likely to result in deterioration in health. The relevant calculation concerns the time for which supervision, prompting or assistance is required, not the time taken to deliver the therapy: MF v SSWO CPIP 1679/2015, as quoted in HH v SSWP (PIP) [2015] UKUT 558 (AAC). Although the First-tier Tribunal erred in treating the cleaning time as outside the therapy, its overall estimate was open to it and the error was immaterial. Ground A therefore failed.
3. Communication. The Tribunal failed to engage with evidence concerning fluctuating hearing loss, speech difficulties and difficulty with complex verbal information. It also failed to address descriptors 7c and 7d. Those omissions meant that adequate reasons had not been given and the error was material.
4. Budgeting. The Tribunal failed to apply the statutory definition of complex budgeting decisions and failed to make sufficient findings about the appellant’s ability to calculate budgets, manage bills and plan purchases. It also inadequately explained why Covid-related delay in developing independence skills was a normal childhood issue rather than connected with the appellant’s needs.
5. Journeys. The Tribunal wrongly focused on navigation and a familiar journey without deciding whether the appellant could plan and follow an unfamiliar route unaided. “Follow the route” includes making one’s way along a route safely and is not confined to navigation: MH v SSWP [2016] UKUT 0531 (AAC). The Covid-related loss of opportunities to develop independence did not answer the statutory question, which concerned functioning at the date of the Secretary of State’s decision.

The fresh tribunal was directed to consider the appellant’s circumstances as at 7 March 2022 and was not bound by the earlier decision.

• First-tier Tribunal (Social Entitlement Chamber): On 17 October 2023, dismissed the appellant’s appeal against the Secretary of State’s decision of 7 March 2022.
• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision and remitted the case for reconsideration by a fresh tribunal.