AE v Secretary of State for Work and Pensions

For the personal independence payment activity of preparing food, a tribunal must assess whether a claimant can prepare and cook a whole simple meal from fresh ingredients, not merely undertake an isolated task such as preparing one vegetable.

Under the reliability criteria and the majority-of-days rule, ability must be assessed at a time when preparing a meal is reasonably required and after reasonable daily activities. Where work is reasonable, a claimant’s ability to cook in the evening must be assessed in light of the resulting fatigue. A tribunal errs if it infers evening cooking ability merely from the claimant’s ability to travel to and undertake work, without rationally addressing evidence that work leaves the claimant too fatigued to cook.

The appellant, who had chronic fatigue syndrome and depression, appealed against a First-tier Tribunal decision which had awarded six daily-living points and four mobility points but had dismissed her appeal because she did not qualify for personal independence payment.

The dispute before the Upper Tribunal concerned activity 1, preparing food. The First-tier Tribunal awarded two points on the basis that a perching stool would enable the appellant to prepare or cook a simple meal. The appellant contended that fatigue after working as an NHS secretary meant that she required assistance to prepare or cook a fresh meal on most days.

The Secretary of State supported the appeal. The central issue was whether the First-tier Tribunal had lawfully assessed the appellant’s ability to prepare and cook a simple meal under the reliability and majority-of-days requirements in the Social Security (Personal Independence Payment) Regulations 2013.

1. Appeal allowed. The First-tier Tribunal made a material error of law in its assessment of preparing food. Its decision was set aside and the case was remitted for a fresh oral hearing before a differently constituted tribunal.

2. A simple meal means a cooked one-course meal for one using fresh ingredients. Applying LC v SSWP [2016] UKUT 0150 (AAC), the tribunal had to consider the appellant’s ability to prepare and cook the whole meal. Her acceptance that she might prepare a carrot while seated did not rationally establish that she could prepare and cook a whole meal.

3. Regulations 4(2A) and 4 of the Social Security (Personal Independence Payment) Regulations 2013 required an assessment of whether the activity could be performed safely, to an acceptable standard, repeatedly and within a reasonable time. Regulation 7 required the relevant descriptor to be satisfied on more than half the days of the required period.

4. Applying the guidance in TR v SSWP [2016] AAC 23, the assessment had to address whether, on most days, the appellant could cook at a reasonable time after undertaking reasonable daily activities. It was reasonable for her to work and to expect a fresh evening meal. Her evening ability therefore had to be assessed by reference to fatigue following work.

5. The First-tier Tribunal perversely inferred cooking ability from the appellant’s ability to travel to and work at her job. That did not address her evidence that work exhausted her and prevented normal evening functioning. There was also no evidential basis for finding that a perching stool would leave her with sufficient energy to cook on most evenings.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal decision for error of law, and remitted the case for a fresh oral hearing.

• First-tier Tribunal (Social Entitlement Chamber): on 16 January 2024, awarded points for certain daily-living and mobility descriptors but dismissed the appeal because the total was insufficient for personal independence payment.

• Secretary of State: decided on 6 September 2022 that the appellant was not entitled to personal independence payment from 13 June 2022.