RH v Secretary of State for Work and Pensions

For Social Security (Personal Independence Payment) Regulations 2013 purposes, rest needed before an activity is started is not included in the time taken to complete that activity under regulation 4(2A)(d). The assessment begins when the activity or descriptor begins and ends when it is completed. However, the same rest may be relevant to whether the claimant can perform the activity repeatedly under regulation 4(2A)(c), where it results from a physical or mental condition and affects the claimant when the activity is reasonably required again. A tribunal must give adequate reasons for rejecting evidence that fatigue and the need for rest prevent repeated performance.

The appellant challenged a decision of the First-tier Tribunal concerning entitlement to the daily living and mobility components of Personal Independence Payment. The First-tier Tribunal awarded two points for managing toilet needs but no further points. It found that the appellant could perform the activities, although he needed to rest afterwards and before repeating them.

The appeal concerned whether rest before an activity had to be included when deciding whether the activity could be completed within a reasonable time under regulation 4(2A)(d), and whether adequate reasons had been given for the finding that the appellant could perform the relevant descriptors repeatedly under regulation 4(2A)(c).

The appeal was allowed. The First-tier Tribunal’s decision was set aside for error of law and the appeal was remitted to an entirely differently constituted First-tier Tribunal for rehearing after an oral hearing.

1. Repeated performance. Rest between activities, and rest before an activity is repeated, may be relevant to whether a claimant can perform the descriptors repeatedly. The question is whether, because of the claimant’s physical or mental condition, the claimant can perform the activity as often as it is reasonably required. This may require consideration of the claimant’s condition after a previous performance and before the activity is reasonably required again.
2. The principles in CE v SSWP (PIP) [2015] UKUT 643 (AAC) and TR v SSWP (PIP) [2015] UKUT 626 (AAC); [2016] AACR 23 apply beyond the particular facts of those cases. A significant inability to perform an activity for part of a day, caused directly by a physical or mental condition and having a tangible effect on activity and functioning, may prevent the descriptor being satisfied repeatedly. The First-tier Tribunal had not explained why its apparent finding that the appellant needed rest after activities and before repeating them did not affect the repeated-performance test.
3. Reasonable time. Rest before starting an activity is not part of the time taken to perform it under regulation 4(2A)(d). The statutory language focuses on the claimant’s ability to carry out the activity or descriptor. The relevant period starts when the activity or descriptor is begun and ends when it is completed. The approach in cases concerning “repeatedly”, or rest during an activity, could not be extended by analogy to regulation 4(2A)(d).
4. The First-tier Tribunal therefore erred by ruling out rest before an activity for all purposes, although it was correct to exclude that time when assessing completion within a reasonable time. It also failed to provide adequate reasons concerning repeated performance.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal against the First-tier Tribunal’s decision and remitted the matter for rehearing by an entirely differently constituted tribunal.
• First-tier Tribunal (Social Entitlement Chamber): on 13 June 2023, dismissed the appeal and awarded two points for managing toilet needs.