RS v Secretary of State for Work and Pensions

The case must be heard entirely afresh by a wholly differently constituted First-tier Tribunal (“FtT”).

The file must be referred to a salaried judge of the FtT for case management directions regarding listing and on other matter on which directions may be considered necessary.

The Appellant had appealed to the FtT against the decision dated 5 March 2024 refusing her Personal Independence Payment. On appeal the FtT awarded 4 points for the Daily Living component and 0 points for the Mobility component. The Appellant appeals to the Upper Tribunal with permission of Upper Tribunal Judge Jacobs. The file has now been transferred to me for decision.

The appeal now concerns a “closed” period, from 11 January 2021 to 25 November 2024, as the Appellant made a new claim on 26 November 2024.

Both representatives have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing. That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail. I need only deal with the reason why I am setting aside the tribunal’s decision.

The Respondent supports the appeal on the ground that it is not clear that the FtT gave adequate consideration to regulations 4(2A) and 7 of The Social Security (Personal Independence Payment) Regulations 2013, particularly in relation to activities 2 (Taking Nutrition) and 6 (Dressing and Undressing). The Appellant’s representative has provided a “no comment” reply.

Regulation 4 (2A) provides:

“(2A)

Where C's ability to carry out an activity is assessed, C is to be assessed as satisfying a descriptor only if C can do so —

repeatedly; and

within a reasonable time period.

Regulation 7, which it is not necessary to set out, requires a focus on whether a descriptor “is satisfied on over 50% of the days of the required period”.

The Appellant’s health conditions particularly relevant for this purpose are carpal tunnel syndrome, thoracic outlet syndrome and fibromyalgia. The report by the Health Care Professional (“HCP”) indicated that the Appellant had reported that symptoms of pins and needles were present daily and poor grip in both hands. Surgery for carpal tunnel syndrome had been ineffective. The pins and needles were diagnosed as caused by thoracic outlet syndrome. There was no evidence that the HCP had carried out any grip tests.

When considering activity 1 (Preparing food) the FtT accepted that the Appellant does have some issues regarding her grip and awarded 2 points for the use of rubber-handled knives, which had been suggested by the Pain Clinic as an aid to cooking. When it came to activity 2, there was evidence that the Appellant “can” hold and use regular cutlery but struggles with tough meats, for which she uses a rubber-handled knife. It was submitted that she avoids food that needs cutting up because she struggles to grip. The FtT awarded 0 points.

As regards activity 6, the HCP recorded reduced movements in both shoulders and the left hip. The FtT noted evidence that the Appellant struggles with buttons and zips and to fasten her bra and that she finds it difficult to put on jumpers and T-shirts as it causes pain in the shoulder and neck when she raises her arm. Bending over to pull up clothing hurts her back. She tends to wear loose fitting, pull-on clothes and to avoid clothes with zips and buttons and to stay in her pyjamas when at home. The FtT awarded 0 points.

The FtT observed that “it is accepted that she chooses loose-fitting clothing as it is easier to put on, but this doesn’t form part of the test for this PIP activity.” If, as I read those words, they mean “we can’t take into account the Appellant’s strategy of wearing loose-fitting clothes – rather we have to look at her ability to wear appropriate, unadapted clothing suitable for the situation”, that would be consistent with DWP Guidance and, in my view, with the law (see PE v SSWP [2015] UKUT 309 [2016] AACR 10). They would however rightly focus attention on the need adequately to address how the Appellant could manage unadapted clothing with the limitations that were in evidence.

As regards both activities, there is insufficient indication that the FtT considered whether the Appellant’s limitations in the course of carrying out the activity ay associated pain meant that she could not carry it out to the standard required by reg 4(2A), in particular “to an acceptable standard”. Although the FtT considered that the HCP report (which did not recommend any aids) was consistent with the Appellant’s oral evidence and that the oral evidence did not support the submission on the Appellant’s behalf, the FtT on occasion did not accept the HCP’s report, for instance in awarding 2 points for Activity 1. The reason why it did so for activity 1, but not then activity 2 is unclear. We do not know why the need for a rubber-handled knife for taking nutrition was apparently not accepted as reasonably required, nor is there any indication that the FtT considered whether regular cutlery caused the Appellant difficulties and could be used to an acceptable standard. Nor is it clear why the FtT did not also feel able to depart from the HCP report in relation to activity 6, not least because of the extensive evidence the report provided concerning limitations as to dressing.

Two more points for each of activities 2 and 6 would mean that the Appellant had sufficient points to qualify for the Daily Living component at the standard rate, so the errors(s) of law are material.

I do not need to deal with any other error on a point of law that the FtT may have made. Any that were made will be subsumed by the rehearing.