KL v Secretary of State for Work and Pensions (PIP)

Personal Independence Payment Activity 4 assesses the claimant’s functional ability to wash and bathe. It covers the mechanical acts of getting into and out of a bath or shower and washing the relevant body parts. The requirement to perform an activity to an acceptable standard concerns the accomplishment of those acts, not the quality or outcome of the washing. An item used to manage the consequences of an underlying condition is not an aid for Activity 4 unless it improves, provides or replaces an impaired function required to perform the activity. Tribunals must assess the evidence holistically and explain material findings, including where evidence relevant to one activity informs another.

The appellant had trimethylaminuria, which caused body odour, anxiety and social isolation. The First-tier Tribunal awarded her the standard-rate mobility component but refused the daily living component. It found that she could wash and bathe physically and did not require prompting or assistance.

Permission to appeal was granted on issues concerning Activity 4, the meaning of an acceptable standard, the possible status of medicated soap as an aid, and the assessment of mobility and social engagement. Before the Upper Tribunal, the respondent accepted errors in the assessment of Activity 9 and Mobility Activity 1. The central issue was the proper interpretation and application of Activity 4.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside and remade. The appellant was entitled to the standard-rate daily living component from 11 April 2022 and the enhanced-rate mobility component until 10 April 2026.
2. Activity 4 is concerned with functional ability. The definition of “bathe”, including getting into or out of an unadapted bath or shower, and the references to assistance with washing particular body parts, show that the activity concerns the mechanical performance of washing and bathing. It is not a test of the quality of the result: [2016] UKUT 190 (AAC) was applied.
3. The requirement in regulation 4(2A)(b) of the Social Security (Personal Independence Payment) Regulations 2013 that an activity be performed to an acceptable standard relates to the functional acts comprising the activity. For Activity 4, the question is whether the claimant can get into and out of a bath or shower and wash themselves, subject to the applicable descriptors. It does not require the claimant to achieve a particular result, such as eliminating odour.
4. An aid must be connected with an impaired function affecting the claimant’s ability to perform the particular activity. Medicated soap reduced the consequences of the appellant’s metabolic condition but did not compensate for an inability to perform the mechanical acts of washing or bathing. It therefore was not an aid for Activity 4: [2016] UKUT 197 (AAC), [2016] UKUT 0501 (AAC) and [2019] UKUT 320 (AAC) were applied.
5. The First-tier Tribunal had erred in law by failing to give adequate reasons for its findings on social engagement and mobility. It had not sufficiently considered the evidence as a whole or explained the apparent mismatch between evidence relevant to those activities. Adequate reasons were required because further points could have changed the outcome: [2005] EWCA Civ 982.
6. The appellant did not qualify for additional points under Activity 2. The established meaning of taking nutrition concerns the acts of cutting, conveying, chewing and swallowing food or drink, not the nutritional quality of what is consumed. Vitamin supplements could not found an additional award on the evidence.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed; the First-tier Tribunal’s decision was set aside and remade.
• First-tier Tribunal (Social Entitlement Chamber): appeal allowed in part. The appellant received the standard-rate mobility component but no daily living component.