Upper Tribunal (Administrative Appeals Chamber)

 

 

 

THE UPPER TRIBUNAL

 

ADMINISTRATIVE APPEALS CHAMBER

 

DECISION OF THE UPPER TRIBUNAL JUDGE

 

The claimant’s appeal is allowed.  The decision of the Glasgow First-tier Tribunal of 1 August 2014 is set aside.

 

The case is remitted to the First-tier Tribunal (Social Entitlement Chamber) for redetermination in accordance with the directions in paragraph 12 of the Reasons.

 

 

REASONS  FOR  DECISION

 

 

1. This is a claimant’s appeal, brought with the permission of District Tribunal Judge Lunney, against the decision of the Glasgow First-tier Tribunal of 1 August 2014.

 

2. By their decision the tribunal confirmed the outcome of a decision maker’s decision of 21 November 2013, left unaltered at mandatory reconsideration on 21 January 2014, that  the claimant was not entitled to personal independence payment from 19 July 2013. However, in upholding that decision the tribunal increased the claimant’s score for daily living activities from one point for descriptor 3(b) to four points, two each for descriptor 3(c) and descriptor 4(b), while maintaining her score of nil for mobility activities. 

 

3. In paragraph 20 of their Statement of Reasons in document 89 the tribunal express themselves thus:

 

“The tribunal adopted a broad axe approach to all of the evidence as is required in the case of Moyna”

 

4. The claimant’s solicitor submits in her grounds of appeal on document 92 as follows:

 

“We feel the tribunal have erred in law to quote Moyna in their Statement of Reasons as we understand PIP have different regulations and supersedes Moyna in regard to a previous Commissioner’s decision in regard to DLA.  The fifty per cent rule ought to have been applied rather than the broad brush approach set out in Moyna.  The tribunal failed to properly assess the variability of the client’s condition and to apply the appropriate criteria.”

 

5. The ground of appeal quoted in paragraph 4 above is resisted by the Secretary of State in paragraph 12 of his submissions in documents 112 – 113. 

 

6. Secretary of State for Work and Pensions v Moyna, R(DLA) 6/03, is a decision of the House of Lords relating to the cooked main meal test for the purpose of the lowest rate of the care component of disability living allowance, created by section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992.  In particular, the question in Moyna was how often a claimant was required to fulfil that test to become entitled to the lowest rate of the care component.  Only one substantive judgement was delivered, that of Lord Hoffman.  The other four judges fully concurred with it.  In paragraph 18 of his judgement Lord Hoffman expressed himself thus:

 

 

“That leads on to the second point, which is that the test says nothing about how often the person should be able to cook.  It would have been easy for Parliament to say that a person should be able to cook daily or six times a week or whatever.  Instead, the statute approaches the question of frequency in a different way.  Section 72(2) contemplates that one should be able to say of someone throughout a nine month period that he is a person whose disability is such that he cannot cook a main meal.  What does this mean?  One possible construction is that if there was a single occasion during the period when the remission in his disability would have allowed him to cook a meal, it cannot be said that throughout the period he was unable to do so.  But the Secretary of State does not contend for this construction and I do not think that it would be right.  That is not because one occasion is de minimis but because the test does not in my opinion function at that day to day level.  It involves looking at the whole period and saying whether, in a more general sense, the person can fairly be described as a person who is unable to cook a meal.  It is an exercise in judgement rather than an arithmetical calculation of frequency.”

 

7. In R(DLA) 5/05 Judge Hickinbottom, the then Chief Social Security Commissioner, extended the principle of Moyna to all aspects of entitlement to the care component of disability living allowance under section 72(1) of the above Act.  See especially paragraphs 7 and 9. Paragraph 9 reads as follows:

 

“Although the criteria in the various sub-sections of section 72(1) are discrete and very different, the comments of Lord Hoffman inform the general approach to each. In respect of each, an exercise in judgement has to be made taking  “a broad view of the matter”, i.e. taking account of all relevant factors.  In respect of none can a determination be made upon an arithmetical formula or by reference to an invariable benchmark.”

 

8. The question before me is whether the approach in Moyna as extended by paragraph 9 of R(DLA) 5/05 should be applied to personal independence payment.

 

9. I hold that it should not.  Clearly personal independence payment is designed for the same group of claimants as those for whom disability living allowance was designed or at least for the part of that group who are of working age.  However, it is a replacement for disability living allowance.  It has different and distinct statutory criteria of entitlement.  In particular, the broad terms of sections 72 – 73 of the above Act are replaced under personal independence payment by the much more prescriptive and detailed activities and descriptors of parts 2 and 3 of schedule 1 to the Personal Independence Payment Regulations 2013, made under the powers conferred by sections 78 – 79 of the Welfare Reform Act 2012.  It is, in my judgement entirely consistent with the differences between the statutory conditions of entitlement to disability living allowance and those to personal independence payment to hold that the test laid down in Moyna as extended by R(DLA) 5/05 has been replaced by the fifty per cent rule for variability laid down by regulation 7 of the above regulations. That clearly, provides for “an arithmetical formula”.  Such is the very approach rejected for the purposes of disability living allowance by Lord Hoffman in paragraph 18 of Moyna and by Judge Hickinbottom in paragraph 9 of R(DLA) 5/05.  I am persuaded by the ground of appeal stated by the claimant’s solicitor.  I reject the implication in paragraph 12 of documents 112 – 113 that the Moyna test survives into personal independence payment. In my judgement, it has been replaced so far as questions of variability are concerned by the formula laid down in detail in regulation 7 of the above regulations.  Accordingly the tribunal erred in law by their explicit reliance on Moyna.

 

 

 

 

 

10. I set the tribunal’s decision aside on the basis of the error of law identified in paragraph 9 above.  It is inappropriate for me to remake it.  Accordingly I remit the case for redetermination by a freshly constituted tribunal in accordance with the directions in paragraph 12 below.

 

11. Given my acceptance of the second ground of appeal stated on document 92 it is unnecessary for me to deal with the first ground of appeal which is stated there.

 

12. My directions for the rehearing are as follows:

 

(a) The new tribunal should recall that the claimant bears the legal onus of proof that she satisfies any of the statutory criteria of entitlement to personal independence payment. 

 

(b) They should restrict their consideration to the circumstances which pertained on 21 November  2013, the date of the decision maker’s decision  under appeal, ignoring any subsequent improvement or deterioration in the claimant’s condition.  Evidence postdating that date should be considered if it relates to those circumstances. 

 

(c) They are entitled to restrict their consideration to those activities and descriptors which are relied upon by the claimant’s representative. However if other activities or descriptors appear to them to be relevant from the whole state of the evidence then they should also determine their applicability to the claimant.

 

(d) The new tribunal should be careful to apply the arithmetical formula laid down in regulation 7 of the above regulations to any question of variability.

 

(e) They should also be careful to apply the provisions of regulation 4(2A) of the above regulations in assessing which descriptors are satisfied by the claimant.

 

(f) If the claimant’s further claim for personal independence payment referred to in paragraph 15 of document 114 has been adjudicated upon by the time of the rehearing then the new tribunal should determine the claimant’s entitlement to personal independence payment only for the fixed period between her date of claim, 19 July 2013, and the day immediately before adjudication on her subsequent claim took effect. 

 

 

13. The claimant’s appeal succeeds. She should draw no inference from that success as to her eventual success on the merits.  They will be determined by the new tribunal rehearing the case and applying the directions in paragraph 12 above.

 

 

 

 

 

 

(Signed)

A J  GAMBLE

Judge of the Upper Tribunal

Date: 21 January 2015