MP v Secretary of State for Work and Pensions

Under PIP daily living activity 1, “preparing food” and “cooking a simple meal” are separate statutory activities. The descriptors are disjunctive: a claimant may satisfy a descriptor by needing an aid, prompting, supervision or assistance for either activity. The activity does not therefore assess the ability to produce a meal as one connected process, and does not include moving around a kitchen or carrying prepared food to the place where it will be cooked. Dentures may in principle be an aid for taking nutrition where they improve, provide or replace an impaired physical function. Whether they are an aid is fact-sensitive and must be determined by the First-tier Tribunal on the evidence. An evidential error concerning dentures is immaterial where correcting it could not change the benefit entitlement.

The Secretary of State awarded MP the standard rates of both components of PIP. On 8 June 2023, the First-tier Tribunal upheld that decision. It awarded two points under daily living activity 1 because MP needed an aid or appliance to prepare or cook a simple meal, but awarded no points under activity 2, taking nutrition.

Permission to appeal was granted on whether movement or carrying in a kitchen fell within activity 1 and whether dentures could constitute an aid under activity 2. The Upper Tribunal also considered three further grounds alleging evidential errors.

1. Appeal dismissed. The First-tier Tribunal had not made a material error of law.
2. Daily living activity 1 uses separate statutory concepts of preparing food and cooking a simple meal. “Prepare” means making food ready for cooking or eating, while “cook” means heating food at or above waist height. The descriptors requiring an aid, prompting, supervision or assistance refer to being able either to prepare or to cook. They are disjunctive, not conjunctive. The legislation does not impose a test of producing a simple meal as a connected end-to-end process.
3. Making food ready for cooking does not include carrying the prepared food to the cooker. Food is ready for cooking once it has been washed, peeled, chopped or unpackaged. Carrying it to the place where it will be heated is a separate act and is not included in the statutory language. The same reasoning applies to making food ready for eating.
4. JMcG v Department for Communities (PIP) [2019] NICom 77 did not establish that carrying formed part of activity 1. Its discussion concerned whether a litter picker used to retrieve items from a cupboard was an aid to preparing food. The observations in KJ v SSWP (PIP) [2017] UKUT 358 (AAC) about lifting and carrying were not part of the ratio and did not determine the present issue. RM v SSWP (UA-2024-000709-PIP) proceeded only on an assumption that mobilisation might be relevant.
5. In principle, dentures may be an aid to taking nutrition. Where tooth loss impairs chewing and dentures improve, provide or replace that function, regulation 2 of the PIP Regulations is capable of being satisfied. The First-tier Tribunal should determine the issue on the evidence; expert dental evidence is not invariably required. The Tribunal’s failure to investigate the issue was nevertheless immaterial because even two additional points would have produced only 11 daily living points, below the 12-point threshold for the enhanced rate.
6. The remaining grounds were evidential rearguments. The First-tier Tribunal had considered the relevant evidence concerning therapy, hearing aids and mobility, and had given adequate reasons for its findings.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed. The First-tier Tribunal decision of 8 June 2023 under case number SC314/23/00269 did not involve a material error of law.
• First-tier Tribunal (Social Entitlement Chamber): upheld the Secretary of State’s PIP award and dismissed the appeal.