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

Activity 2: taking nutrition

The claimant's submission was that descriptor 2d applied on the basis that she needed prompting to be able to take nutrition reliably i.e. safely, to an acceptable standard, repeatedly, within a reasonably time period. The tribunal decided that this was not the case on the basis that the GP recorded in October 2023 that the claimant was "gaining weight"; that she was sometimes prompted to eat by her mother; that all HCPs recorded that "she was eating on most of the days and will eat breakfast and dinner unprompted"; that "Considering the evidence the round (sic.) and having found that she was cooking for herself on most days we found that the Appellant was able to carry out this activity to the required standard without prompting or assistance."

It is submitted that the tribunal did take the correct legal approach in respect of making its decision on this activity. In TR v SSWP (PIP) [2016] UKUT 626 (AAC) it was held that, if a scoring descriptor applies to the claimant at some point in a day s/he should be accepted as satisfying it on that day. Thus, it a claimant needs prompting to take nutrition, for example, in the middle of the day but not at the start or the end of the day, s/he would nevertheless be accepted as satisfying descriptor d. To be able to assess, therefore, whether the claimant satisfied the descriptor, the tribunal would need to come to a conclusion about how often, on a typical day, the claimant might require nutrition, and then whether, on most days, in practice, she required prompting to take nutrition at least once. Findings that the claimant was "gaining weight"; that she was sometimes prompted to eat; that she was eating on most of the days; that she ate breakfast and dinner unprompted, does not provide evidence that prompting to take nutrition at least once on most days was not needed. (For example, if she was gaining weight, perhaps this was because she needed to be, and was being, prompted to eat). It is submitted that the tribunal's decision is erroneous in law on the basis that the tribunal did not make sufficient findings of fact and could not, therefore, provide adequate reasons for deciding that descriptor 2d was not satisfied.

The claimant’s representative asserts that the FtT should have awarded the claimant 4 points for daily living descriptor 2(d) - Needs prompting to be able to take nutrition on the basis that “…she needed prompting to take nutrition reliably i.e. safely, to an acceptable standard, repeatedly, within a reasonable time period” and the FtT’s failure to make such an award “…is erroneous in law on the basis that the tribunal did not make sufficient findings of fact and could not, therefore provide adequate reasons for deciding that descriptor 2d was not satisfied.”

It is my submission that the FtT has erred in law in both their fact finding and duty to provide adequate reasons for their decision. The conclusions from the FtT on how they assessed the claimant’s functional abilities appears limited in their reasoning. It seems that what the FtT has provided with regards the claimant’s difficulties with regards to daily activity 2 at Addition C p.5, appears to be no more than a rehearsal of part of the evidence and a conclusion without an adequate explanation.

The claimant has been diagnosed with anxiety and depression and is prescribed antidepressant medication sertraline 50mg daily and diazepam 2mg daily as required, an emotionally unstable personality disorder [EUPD] and complex post-traumatic stress disorder [CPTSD]. The claimant was also diagnosed with an eating disorder whilst under the care of the child and adolescent mental health service (CAHMS) as a teenager. This has resulted in the claimant having disordered and restrictive eating, with rules and rituals around not only preparing and cooking food but also with her eating. I would note that shortly after the date of the decision under appeal the claimant saw a dietician at the GP surgery due to concerns about her weight [pp.18-19, 22-23, 61, 146, 180 and 183].

The FtT reached the following conclusions with regards to daily living activity 2 at Addition C p.5 of the statement of reasons (SOR), which states the following:

“As noted above the Appellant has in the past suffered from an eating disorder and remained concerned about her calorific intake. We found that the impact of her issues with food had varied over time. However the GP consultation report dated 26 October 2023, which is almost contemporaneous with the Respondent’s decision records that she was gaining weight.

Her oral evidence was that she was eating something on most of the days. She said that “sometimes” she was prompted by her mother by telephone before going on to correct herself and stating this was on most of the days.

Again, all of the HCPs with whom she has interacted record that she was eating on most of the days and will eat breakfast and dinner unprompted. Whilst it is recorded that she has always been obsessed with her weight and will not eat bulking carbs she will eat sweets and pasta and beans. She is a snacky person and will eat sweets and pumpkin seeds and vegetable crisps. The nutritional content of the food being consumed is not part of test.

Considering the evidence the round and having found that she was cooking for herself on most of the days we found that the Appellant was able to carry out this activity to the required standard without prompting or assistance. No points were awarded.”

The FtT in reaching their conclusions (repeated above) appear to have been narrow in their findings with regards to the claimant’s difficulties with taking nutrition. The FtT observe that the claimant suffered from an eating disorder in the past and as a result she still remains concerned about her calorie intake, finding that her issues with food varied and that “…the GP consultation report dated 26 October 2023, which is almost contemporaneous with the Respondent’s decision records that she was gaining weight.” It is unclear when reading the SOR as to what the claimant’s starting weight was. It is also unclear whether this may have been in and around that period.

Of particular significance is the fact that the evidence contained in the mandatory reconsideration of the decision under appeal the claimant reports that her “…weight loss has now become dangerous, and I have been referred to a Dietician (first appointment 26/10/2023)…” The claimant also reports finding “…the thought of eating distressing. I have complex rules and rituals about eating and I need prompting to be able to eat and drink.” [p.174 and 180]. This evidence and referral to a dietician appears to suggest that the claimant was experiencing difficulties with taking nutrition to the point that concerns were being raised around the impact of those difficulties.

The dietitian seen by the claimant on 26/10/2023, which I note was around a month after the date of the decision under appeal states the claimant has a:

“…longstanding pattern of restricted dietary intake …has very strict food rules avoiding fat and carbs but eating sugar. Is constantly battling/arguing with herself with regards food intake – some days she sees herself as a skeleton and wants to eat more, other days she sees herself as huge and so restricts.

Happy to be weighed today but not happy she has gained weight. Stated that it has made her want to restrict her intake now…I feel that she needs specialist psychological support before she will be able to make any behavioural changes.”

The evidence within the GP consultation notes from the dietician appears to suggest the claimant is having considerable difficulties with eating, managing her relationship with food and how she views her body to the extent that the dietitian feels that she requires specialist psychological support in order to address those issues. The FtT when considering this evidence do not comment upon the dietician observations and opinions (repeated above), appearing to simply concentrate on the fact that the claimant has gained weight. In light of this evidence, it is my submission that the FtT should have used their inquisitorial duty to ascertain further details from the claimant regarding her difficulties with taking nutrition and her rituals, to establish what impact these have on her ability to take nutrition. As such I submit that further findings of fact are required on these matters.

Moreover, the FtT have placed some weight upon the evidence within the Healthcare Professional’s (HP) reports highlighting that they had recorded:

“…she was eating on most of the days and will eat breakfast and dinner unprompted. Whilst it is recorded that she has always been obsessed with her weight and will not eat bulking carbs she will eat sweets and pasta and beans. She is a snacky person and will eat sweets and pumpkin seeds and vegetable crisps. The nutritional content of the food being consumed is not part of test.”

In placing weight upon this evidence (repeated above), the FtT have not addressed the contradictory nature of the evidence within the SOR. Particularly, in light of the dietician’s observations and comments recorded in the GP consultation notes dated 26/10/2023 [p.183] (repeated above), to whom the claimant was referred to due to concerns about her weight and her eating issues. Whilst the FtT is correct that the nutritional content of food is not part of the test with regards daily living activity 2, the fact that there were concerns about the claimant’s weight reasonably suggest that she may have been having difficulties with taking nutrition in accordance with the provisions detailed within Regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 (the PIP Regs 2013).

Additionally, the FtT do not appear to have adequately considered within the SOR whether the claimant would benefit from prompting with regards to daily living activity 2. Specifically, in relation to claimant’s representative reporting at p.19 that she “…has complex “rules and rituals” about eating. She needs prompting to be able to eat and drink.” This evidence appears pertinent given the FtT’s acceptance when awarding the claimant 4 points for prompting with regards to daily living descriptor 1(d) – Needs prompting to be able to either prepare or cook a simple meal, which is based upon the FtT:

“…looking at the evidence in the round and having regard to her acknowledged conditions and the associated “rituals” we found it took longer than average to cook a simple meal using fresh ingredients.”

In light of FtT’s findings (repeated above) it was incumbent upon them to use their inquisitorial duty and make findings as to what the functional impact the claimant’s “complex rules and rituals” have upon her ability to take nutrition in accordance with the provisions detailed within Regulation 4(2A) of the PIP Regs 2013. As such further findings are required on this matter.

Briefly turning to the grounds of appeal concerning daily living activities 4 and 6, and the credibility of the claimant’s evidence and assertions noted within the SOR that she was “masking” her difficulties when asked about them by HPs who completed reports during the period 2019 to 2023. The FtT found that they did not accept the claimant’s explanation that she was “masking” her difficulties however, in reaching in their conclusions the FtT did not establish a reason why the claimant might be masking any issues undertaking daily living activities 4 and 6. Was her mental health difficulties having a greater impact at the date of the decision under appeal than she wanted to admit?

Furthermore, it is noteworthy, that the FtT appear to have placed some reliance on their observations of the claimant during the appeal hearing when considering whether she satisfied any of the point scoring descriptors within daily living activity 4 [Addition C p.6] noting that:

“The Appellant appeared to us to be well dressed and well kempt. She was wearing artificial finger nails. Her fingers appeared to be tattooed. Her eyebrows were well shaped. Asked about this she said that she looked after her eyebrows herself going on to state that her appearance was important to her and that if she went out to see people, she made sure that she looked acceptable.”

It appears that the FtT may have been influenced to some degree by the claimant’s appearance at the appeal hearing, which I note was conducted some nearly 17 months after the date of the decision under appeal. Could the claimant have made an effort with her appearance, as she was attending the appeal hearing? Therefore, together with the FtT’s lack of fact finding (detailed above) it appears that the FtT may have erred in law, as they seem to have made insufficient findings within the SOR to support and explain their conclusions why in their opinion the claimant did not satisfy any of the point scoring descriptors within daily living activities 4 and 6 at the date of the decision under appeal.

Although the FtT is entitled to give weighting to whatever evidence that they choose, where there is conflicting evidence it must in the first instance explore and consider it a holistic manner and provide sufficient reasons explaining why they preferred the evidence that they had. In this appeal the FtT does not appear to have done that. There seems to be a distinct lack of evaluation of impact of the co-morbidities of the claimant’s mental health difficulties and her evidence regarding the difficulties she experiences when undertaking daily living activities 2, 4, and 6 and also the evidence from the dietician regarding the claimant difficulties taking nutrition. Therefore, it could be said that had the FtT given appropriate consideration to all the evidence, including accurately identifying the effects of the claimant’s conditions, the FtT may have considered the claimant’s limitations. As such, I submit that the FtT have failed to give adequate reasons, as to why evidence in parts was not accepted when deciding what points should be awarded.

Nicholas Wikeley

Judge of the Upper Tribunal