LAG (by her appointee LB) v Secretary of State for Work and Pensions

For Personal Independence Payment, activity descriptors must be assessed on the basis that the claimant carries out the activity as often as is reasonably required. Where disability causes the claimant to avoid the activity, the tribunal must consider whether the descriptor would apply if the activity were carried out with that reasonable frequency. The majority-days requirement does not permit a tribunal simply to count the days on which the claimant actually undertook the activity. It must examine why the activity was not undertaken. A failure to engage with relevant evidence, or to explain findings about the frequency and consequences of risky behaviour, may amount to an error of law.

The appellant challenged a First-tier Tribunal decision concerning her entitlement to Personal Independence Payment under Part 4 of the Welfare Reform Act 2012 and the Social Security (Personal Independence Payment) Regulations 2013. The First-tier Tribunal awarded points for daily living activity 9c but rejected descriptor 9d, concerning inability to engage with others because of overwhelming psychological distress or behaviour creating a substantial risk of harm.

The Upper Tribunal considered whether the First-tier Tribunal had adequately addressed evidence of confrontational and harmful behaviour, evidence from a mental health practitioner, the relevant date, and the appellant’s avoidance of social engagement. The central issue was the proper application of regulations 4(2A) and 7 where a claimant may avoid an activity because of disability.

1. Appeal allowed. The First-tier Tribunal’s decision involved material errors of law. It was set aside under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007.
2. The First-tier Tribunal gave inadequate reasons for rejecting descriptor 9d. It did not sufficiently explain its conclusions that harmful behaviour was only occasional and had improved, despite evidence of a recent physical altercation, suicidal threats, and regular conflict involving aggression and violence.
3. The Tribunal also failed to focus clearly on the circumstances at the date of the Secretary of State’s decision, as required by section 12(8)(b) of the Social Security Act 1998.
4. Under regulations 4(2A), 4(4) and 7 of the Social Security (Personal Independence Payment) Regulations 2013, the claimant’s ability must be assessed by reference to whether the activity can be performed safely, to an acceptable standard, repeatedly and within a reasonable time, and whether the relevant descriptor applies on more than 50% of days. “Repeatedly” requires consideration of how often the activity is reasonably required.
5. Where a claimant does not undertake an activity as often as is reasonably required because of disability, the tribunal must consider whether the descriptor would apply on the majority of days if the claimant did undertake the activity with that reasonable frequency. It cannot decide that descriptor 9d is unsatisfied merely because harmful behaviour was not actually exhibited on a majority of days.
6. The approach in TR v SSWP and GG v SSWP (PIP) was applied. The case was remitted for reconsideration at an oral hearing before a fresh First-tier Tribunal panel.

• Upper Tribunal (Administrative Appeals Chamber): The appeal from the First-tier Tribunal was allowed. The decision was set aside and the case remitted for reconsideration by a fresh tribunal.
• First-tier Tribunal (Social Entitlement Chamber): On 1 October 2024, the tribunal awarded 7 daily-living points and 10 mobility points, rejecting descriptor 9d.
• Secretary of State: The decision under appeal, dated 4 July 2023, ended the appellant’s entitlement to Personal Independence Payment.