SH v Secretary of State for Work and Pensions

This is a supported appeal in a case about Personal Independence Payment (PIP).

By a decision dated 25 March 2023 the claimant’s claim for PIP was refused. She was awarded 2 points for Preparing Food but this was insufficient to attract an award of the daily living component of PIP as this requires a minimum of 8 points. She was awarded 0 points for mobility. A mandatory reconsideration left the decision unchanged. The claimant therefore appealed the decision to the First-tier Tribunal (“FtT”) and by a decision dated 15 July 2024 the FtT refused the appeal as it agreed with the Secretary of State’s decision only to award 2 points as above. The claimant sought permission to appeal but that was refused by Judge McDonald on 5 February 2025. She now appeals to this tribunal, and her representatives have advanced a number of Grounds relating to daily living activities. For the purposes of this appeal, I propose to focus only on the Grounds relating to Preparing Food, Taking Nutrition and Dressing and Undressing and the impact of the claimant’s injury on her ability to carry out these daily living activities, to an acceptable standard, repeatedly and within a reasonable time period: see reg. 4(2A) of the PIP Regulations (2013/377) (“the PIP Regs”).

By a decision dated 27 March 2025 UTJ Fitzpatrick granted permission to appeal on the basis that it was “arguable the FTT failed to make sufficient findings of fact in relation to the role (if any) performed by the Appellant’s sister in the context of Preparing Food … [and]… . failed to adequately consider and make findings of fact in relation to the Appellant’s need for aids in relation to the Appellant’s ability to dress herself, particularly in view of the Appellant’s injury and the comments of the HCP that aids had been advised”. Whilst the permission grant did not specifically mention Activity 2, Taking Nutrition, the permission grant made it clear that the Grounds were not being limited in any way. It can immediately be seen that any errors in relation to these point-scoring descriptors are potentially material because if the claimant is in fact entitled to 2 points for each of Activities 2 and 6, and 4 points for Activity 1 on the basis that she needs assistance to prepare a meal, she would then qualify for the daily living component at the standard rate.

The Secretary of State’s representative responded to the permission grant indicating that the appeal was supported and consent was forthcoming to a decision without reasons. The claimant’s representative has also consented to a decision without reasons and in those circumstances I will deal with the case succinctly.

The claimant is a 60 year female. Unfortunately, she sustained a serious injury to the median nerve in her right (dominant) hand. According to the medical evidence, this required “repair of a 100% division of the branch of the median nerve to her index finger, middle finger and ring finger and the branch to her thumb” but she was left with residual problems including pain, numbness in her fingers, stiffness, lack of sensation, tingling and weakness in her grip. Her ongoing problems and limitations are clearly vouched for by the medical evidence and the claimant’s own account of her ongoing functional limitations.

Notwithstanding the severity of her injury and the consequential impact on the grip, dexterity and strength of her dominant hand, the First-tier Tribunal concluded that she was not entitled to any points for daily living activities save for 2 points for Preparing Food on the basis that she needed an aid to either prepare or cook a simple meal. Its reasoning is set out in a Statement of Reasons (“SOR”) dated 20 November 2024.

Dealing first with preparing food, the claimant’s physiotherapist reported that the claimant “avoids cutting/preparing vegetables as she feels unsafe with a knife…”. The FtT was satisfied that the claimant could not chop to an acceptable standard but concluded that the risk of harm “could be avoided with the use of prepared vegetables" [SOR, paragraph 24]. The FtT noted that the claimant’s sister provided assistance with the activity of preparing food but stated at paragraph 25 of the SOR that any assistance provided by the claimant's sister to carry out the activity was not reasonably required due to the use of prepared vegetables. But as the Secretary of State’s representative submitted, this conclusion is at odds with the FtT's findings noted at paragraph 21 of the SOR that the appellant's difficulties arose "because she was unable to grip a knife safely in her right hand as a result of the surgery to that hand". It is entirely unclear why the use of prepared vegetables was an answer to the claimant’s difficulties in performing the other functions that may be involved with the preparation of even a simple meal. In fact, the lack of grip in her dominant hand would be highly likely to impinge on the claimant’s ability to prepare and/or cook a simple meal without assistance.

I have concluded that that the FtT took an unduly limited and restrictive view of the claimant's ability to carry out this activity safely in accordance with Regulation 4(2A) of the Social Security (Personal (Independence Payment) Regulations 2013, and that, in the circumstances, more explanation was required before it could fairly conclude that the assistance which her sister was providing was not reasonably required. Had the tribunal concluded that the claimant needed assistance to prepare or cook a simple meal, she would have been entitled to 4 points for this activity.

With regards to daily living activity 2 (Taking Nutrition) the FtT concluded that the appellant could carry out the activity unaided, stating at paragraph 29 of the SOR:

“The process of taking nutrition involves four components being cutting food, conveying it to the mouth, chewing it and swallowing it all of which are necessary (according to the definition) to achieve the taking of nutrition such that if only one of the components (such as chewing) cannot be done the overall task cannot be done.”

The FtT under paragraph 30 of the SOR stated that it would be acceptable for the claimant to swap hands when cutting food and referred to a medical letter from the claimant’s physiotherapist which reported an “ability to … use a knife and fork”. However, that evidence went on to say that the claimant “can only hold light small objects” and “has a weak pinch grip” and explains that the claimant “frequently drops objects”. The claimant’s own account, as reported by the Health Care Professional, was to the same effect where she said that she “struggles holding a cup”, “has no sensation to the right hand”, “cannot feel the temp of the food”, and “has restricted grip to her right hand”. I have already referred above to the passage in the physiotherapist report that said the claimant “avoids cutting/preparing vegetables as she feels unsafe with a knife” but it is also noteworthy that the physiotherapist’s “overall” conclusion was that “… this patient has lost her confidence and is struggling to function and care for herself”.

The clear picture that emerges from the totality of the evidence is of a woman struggling to cut up food without assistance, yet the FtT does not seem to have considered the evidence in a holistic manner, in particular the issues arising from the claimant’s difficulty using a knife, her loss or lack of grip and the lack of sensitivity in her dominant hand. In summary I agree with the submissions of the Secretary of State which said this:

“It is established that the appellant has difficulties using a knife, so … the FTT should have considered how she would be able to cut food … using a knife. Furthermore, … the First-tier Tribunal’s suggestion that the claimant can swap between hands when cutting food … does not address how the appellant may be able to do this in accordance with regulation 4(2A) especially if she cuts foot with her non-dominant hand. Therefore, it is my submission that the FtT’s fact finding is limited and overlooks key considerations in determining whether the appellant can take nutrition reliably”.

Turning finally to daily living activity 6 (Dressing and Undressing) the FtT concluded that that the claimant could complete this activity unaided. However, there was a consistent body of evidence in the bundle which suggested that the claimant struggled with buttons and zips due to problems with her grip and a lack of sensation in her dominant hand. The First-tier Tribunal dealt with this issue at paragraph 43 and following of the SOR and ultimately concluded that the claimant could dress and dress unaided using only her left hand. At first blush this is a surprising conclusion, a fortiori given that the claimant is right handed, but all the more so when one considers that the HCP’s report concluded that “she would not be able to dress and undress reliably on the majority of days without suitable aids”.

It is ultimately a short point but I am not persuaded that the tribunal adequately explored the claimant’s difficulties dressing and undressing or explained why they came to the conclusion that they did, notwithstanding the recommendation of the HCP.

In my judgment the FtT did not grapple sufficiently with the potential importance of regulation 4(2A) of the 2013 PIP Regulations on the facts of this case and, in the light of the claimant’s evidence, did not properly explain the conclusions it came to in relation to the descriptors of preparing food, taking nutrition and dressing and undressing. It therefore erred in law and did so materially in the sense that, but for those errors, the claimant might have scored a total of 8 points, which would have been sufficient to attract an award of the daily living component of PIP at the standard rate.

For those reasons and the additional reasons set out in the Secretary of State’s submissions, with which I agree, I am satisfied that the tribunal materially erred in law and I therefore allow this appeal and set aside their decision. I am not in a position to re-make the decision and therefore remit the matter for reconsideration by a fresh panel of the First-tier Tribunal in accordance with the directions set out above.

I say nothing about the other alleged errors referred to in the Grounds. Any further errors will be subsumed within the rehearing. The claimant should understand that her success in this appeal is not determinative of the outcome of the case when it is reheard.