PP 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 23 March 2023 the claimant’s claim for PIP was refused. He was awarded 6 points for daily living (2 points for Preparing Food, 2 points for Washing and Bathing and 2 points for Dressing and Undressing) but this was insufficient to attract an award of the daily living component of PIP as this requires a minimum of 8 points. 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 August 2024 the FtT refused the appeal as it agreed with the Secretary of State’s decision only to award 6 points as above. The claimant sought permission to appeal but that was refused by DTJ McNair on 19 December 2024. He now appeals to this tribunal, on the basis that the evidence before the FtT warranted an award of the daily living component of PIP at (at least) the standard rate, having regard to the effect of his shoulder injury on his ability to carry out 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 7 February 2025 UTJ Church granted permission to appeal on the basis that the First-tier Tribunal had failed to make adequate findings of fact or properly explain why it rejected the claimant’s case, particularly in relation to the daily activity of taking nutrition, although mention is also made in the grounds of appeal of washing and bathing. It can immediately be seen that any error in relation to this point-scoring descriptor is potentially highly material because if the claimant is in fact entitled to 2 points for this activity, he 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 57 year male. Unfortunately, he sustained a serious rotator cuff injury to his right shoulder which, according to the medical evidence, has left him with “long standing right shoulder pain and limitation of movements”. He is right handed. His evidence in relation to the descriptor of taking nutrition made clear that this activity was significantly affected not just by the limitation of movement but also by pain. Amongst other things, he said this: “Eating and drinking is notably difficult with my condition. I have inadequate movement in my right arm and I have to use my left hand for drinking and putting food to my mouth. I cannot get food to my mouth with my right hand due to the pain and restricted range of movement. I cannot cut food with a knife sitting down, I have to stand to cut but this still proves to be remarkably painful and restricted”. He was assessed by a Health Care Professional who, whilst acknowledging his reporting of pain, described him as “functional” in relation to this descriptor and recommended that he be awarded 0 points for this activity.

The Secretary of State adopted this recommendation and the decision of the First-tier Tribunal was to the same effect. The Tribunal said this in its statement of reasons:

“The Appellant explained that he needed to stand to cut food that needed cutting. He had adapted this procedure successfully and had also changed his diet as a consequence. The Tribunal decided that the Appellant was able to take nutrition without an aid the majority of the time”.

The Tribunal therefore awarded 0 points for this descriptor. Whilst the tribunal did refer to Regulation 4(2A) in its decision, it did not refer to pain when dealing with this descriptor. This is a significant omission and I agree with the observations made by the Secretary of State’s representative in his submissions to this effect:

“That lack of reference leads one to question whether the Tribunal had given appropriate consideration to Regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 … I note at paragraph 11 of the SoR the Tribunal has recorded the legislation it had considered, including regulation 4(2A), but that appears to me to be no more than a standard paragraph. It should be clear when reading the Tribunal’s reasons in respect of the activities or descriptors … that regulation 4(2A) was considered. That was not the case here as is evident from the fact that the Tribunal did not once refer to the claimant’s reported pain when cutting food, even when standing. The Tribunal should have considered, or at a minimum explained in its SoR, what it made of the pain the claimant reported to suffer from when cutting food even whilst standing to do it. This raises doubts as to whether the claimant was able to take nutrition unaided to an acceptable standard. Had the Tribunal considered this further it may have found that the claimant needs an aid to be able to take nutrition [to an acceptable standard] in accordance with Regulation 4(2A)”.

While there is no definition in the PIP Regulations of what is an ‘acceptable standard’, the Tribunal should have had regard to the guidance set out in PS v SSWP [2016] UKUT 0326 (AAC) and to similar effect in CPIP/2377/2015:

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 conclusion it came to in relation to the descriptor of taking nutrition. It therefore erred in law and did so materially in the sense that, but for that error, the claimant might have scored a further 2 points (at least) 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 error in relation to washing and bathing. Any error in that regard will be subsumed within the rehearing.