BC v Secretary of State for the Department of Work and Pensions

Whether a device is an aid under the Social Security (Personal Independence Payment) Regulations 2013 depends on what it does for the claimant’s impaired function, not on the device’s ordinary character or popularity. The word “any” gives the definition a broad scope.

An everyday object, including fixed bath handles, may be an aid where the claimant has established a functional impairment and could not perform the descriptor task without it. The fact that non-disabled people also use the object does not determine the issue. Any adaptation resulting from using the aid is immaterial when applying the washing and bathing descriptors. Tribunals must assess the regulation 4(2A) criteria where the evidence raises them, even if the claimant has not expressly relied on the provision.

The claimant appealed against a decision of the First-tier Tribunal concerning entitlement to Personal Independence Payment. The First-tier Tribunal awarded points for washing and bathing and dressing and undressing, and the standard mobility component, but did not award the daily living component.

Permission to appeal was granted on several possible errors of law. The supported issues included whether fixed bath handles could be an aid, whether an aid adapted the bath for activity 4, and whether the First-tier Tribunal had adequately applied regulation 4(2A) to the evidence of breathlessness, pain and fatigue. The central questions concerned the meaning of “aid” and the proper assessment of the washing and bathing descriptors.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for material errors of law under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007. The case was remitted to a differently constituted First-tier Tribunal for an oral hearing.
2. Under the Social Security (Personal Independence Payment) Regulations 2013, an aid or appliance means any device which improves, provides or replaces the claimant’s impaired physical or mental function. The relevant limitation concerns the device’s functional role in enabling the claimant to perform the descriptor task.
3. CW v Secretary of State for Work and Pensions (PIP) [2016] UKUT 197 (AAC) and AP v SSWP [2016] UKUT 0501 (AAC) did not establish that normality of behaviour determines whether a device is an aid. Nor did they exclude everyday objects merely because non-disabled people use them. Whether use of such an object demonstrates impaired function remains a factual question.
4. Where a claimant proves a physical condition and establishes that, without bath handles, they could not get into or out of the bath, the handles may satisfy the definition of an aid. The fact that the handles form part of the bath and are used by people without impairments is immaterial to that assessment.
5. For activity 4, the starting point is an unadapted bath or shower. The tribunal must then ask whether the claimant needs an aid to perform the relevant task. If using the aid in fact adapts the bath, that consequence does not exclude consideration of the aid under the descriptors. The descriptors are assessed in ascending order of need.
6. Regulation 4(2A) requires assessment of whether the claimant can perform the activity safely, to an acceptable standard, repeatedly and within a reasonable time. The First-tier Tribunal materially erred by failing to apply that analysis to the evidence concerning washing and bathing, preparing food, dressing and undressing, and mobility. The appeal’s success did not determine the factual merits, which were remitted for fresh consideration.

• Upper Tribunal (Administrative Appeals Chamber): The appeal was allowed. The First-tier Tribunal decision dated 3 July 2023 was set aside for error of law and the case was remitted to a fresh tribunal.
• First-tier Tribunal (Social Entitlement Chamber): The claimant received points for specified daily living activities and the standard mobility component, but not the daily living component.