Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: UK/4056/2014 (PIP)

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

 

The Upper Tribunal allows the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Blackburn on 9 May 2014 under reference SC063/14/00108 involved an error on a material point of law and is set aside.

 

The Upper Tribunal substitutes its own decision for that of the First-tier Tribunal.

 

The substituted decision of the Upper Tribunal is to set aside the Secretary of State’s decision of 5 November 2013 and replace it with a decision that the appellant is entitled to the daily living component of the personal independence payment at the standard rate for a period of three years from 9 July 2013 to 8 July 2016.

 

This decision is made under section 12(1), 12(2)(a), 12(2)(b)(ii) and 12(4) of the Tribunals, Courts and Enforcement Act 2007

 

 

 

REASONS FOR DECISION

 

 

1.                   As the parties are agreed that the First-tier Tribunal (“the tribunal”) erred in law and that the Upper Tribunal should substitute its own decision for that of the tribunal to the effect set out above, and I agree with them that this is the correct course to take, and as the parties consent to a decision being given without reasons, I can express my reasons for allowing the appeal reasonably shortly. On the other hand, as the personal independence payment (“PIP”) is a new benefit, it may be of some assistance if my reasoning sets out some guidance on the issues that arise on this appeal.   

 

2.                  I said the following when I gave permission to appeal:

 

“I give permission to appeal to explore the issue of whether a walking stick (or perching stool – pages 61 and 67) can amount to an “aid or appliance” for the purposes of descriptor 1b in Part 2 of Schedule 1 to the Social Security (Personal Independence Payments) Regulations 2013, and whether the tribunal erred in law in either not explaining why the stick (or stool) was not an aid or appliance or, if it was, why the stick (or stool) was not needed in order for [the appellant] to be able to either prepare or cook a simple meal. Furthermore, did the reasoning not need to expressly address the use of the stool, given the Secretary of State had founded on this as an aid or appliance, and explain away its relevance?

 

A further issue of law arises in respect of the tribunal’s reasoning as to why it was taking as an issue arising on the appeal whether descriptor 1b was met when neither the appellant nor the Secretary of State had placed that descriptor in issue on the appeal. Why “had [the tribunal] to consider all the activities which had been put in issue by [the appellant] including those for which points had been awarded” (last sentence in paragraph 3 of the statement of reasons), when (a) as the tribunal had earlier expressed, [the appellant] had not put the points already scored in issue, and (b) section 12(8)(a) of the Social Security Act 1998 expressly provides that the tribunal need not consider any issue that is not raised by the appeal?  Moreover, did fairness not require the tribunal to expressly warn the appellant in advance that descriptor 1b was in issue so that she could address it properly?

 

3.                  The Secretary of State’s submission on the appeal does not address directly the first ground on which I gave permission to appeal (i.e. whether a walking stick can be an aid to cooking).  However, without seeking to settle this particular point conclusively (it not having been the subject of argument before me), it seems to me that a walking stick can probably just as much be an “aid” needed “to either prepare or cook a simple meal” under descriptor 1b in Part 2 of Schedule 1 to the Social Security (Personal Independence Payments) Regulations 2013 (the “PIP Regs”) as a stool or a perching stool.

 

4.                  The Secretary of State accepted that the appellant needed a stool as an aid to cook as she had difficulty with standing (see page 67 when read with page 66). I agree and so can (re-)award the appellant those 2 points, which takes her total to 8 and thus qualifies her for the award set out in my decision above. The tribunal erred in law in not explaining adequately why the stool was not needed in order for the appellant to be able to either prepare or cook a simple meal. Standing to wash up, which the tribunal did address, is not an automatic read across for a person being able to stand to prepare or, more likely, cook a simple main meal (the latter having to be done at waist height – see definition of “cook” as “heat food at or above waist height” in Part 1 of Schedule 1 to the PIP Regs).  I accept the Secretary of State’s argument that the tribunal failed to explore or explain how standing to wash up compared, in terms of duration, to the time taken to stand to cook a simple meal. Nor did it explain what it made of the appellant’s evidence, which it did not reject, that “her son frequently took over [the washing up] from her because he thought she took too long as she kept stopping because of her back”.  This stopping may have been because of unsteadiness in standing which would then have been relevant to the appellant’s ability to stand unaided to cook.

 

5.                  The tribunal also failed to address in its reasons whether without any aid the appellant would be able to cook a simple meal safely. Regulation 4(2A)(a) of the PIP Regs provides that a person is to be assessed as satisfying a descriptor only if they can do so safely.  In this context, and bearing in mind “cook” means to heat food and the tribunal’s acceptance that the appellant had some right-sided weakness and used a walking stick in her right hand, it was in my judgment material to the assessment of whether the appellant could cook a simple meal unaided to consider whether she could do so safely, and that needed to be addressed directly by the tribunal on that particular activity rather than by way of general introductory remarks. 

 

6.                  The tribunal’s reasoning was also deficient in failing to address the Secretary of State’s evidence on page 61 that the appellant needed a stool as an aid to be able to complete the task of cooking a simple meal.  This ties in with the tribunal’s focus on the occupational therapist not having recommended any necessary aids for the kitchen.  The error it seems to me the tribunal made here was to impose too high a test for “aid”, given the tribunal’s focus on what may be termed specialist aids recommended by an occupational therapist and its apparent rejection of a stool (or walking stick) counting as such an aid.  However, the definition for “aid” is very broad, meaning “any device which improves, provides, or replaces [a claimant’s] impaired [physical or mental; function”. It is not a specialist device (contrast definition of “orientation aid” as a “specialist aid designed to assist people to follow a route safely” in Part 1 of Schedule 1 to the PIP Regs).  On this definition it seems to me that a stool (or walking stick) is a device which improves (walking stick) or replaces (stool) the appellant’s impaired function of standing.

 

7.                  As for the second ground of appeal, the Secretary of State argues, it seems to me probably correctly, that where a person has not been awarded either rate of the daily living component (or mobility component) of PIP then on appeal against that decision potentially all activities under Schedule 1 to the PIP Regs may be in issue and need to be explored. (Contrast, perhaps, BTC –v- SSWP [2015] UKUT 155 (AAC), where the claimant had an award of the mobility component at the standard rate and on appeal seeking the enhanced rate of that component the First-tier Tribunal removed the award of the component altogether.)  This case thus differs from one where the claimant is satisfied with her award of the daily living component and only appeals the refusal to award the mobility component (i.e. where arguably the daily living component award is not an issue raised by the appeal: per section 12(8)(a) Social Security Act 1998), and the First-tier Tribunal enquires into and then removes the daily living component award.

 

8.                 The overlap between the daily living descriptors, so the Secretary of State argues, may well mean that a First-tier Tribunal in considering the evidence in relation to activities under which no points have been awarded may identify evidence or make findings of facts which call into question descriptors under which the Secretary of State had awarded points. Reference is made by the Secretary of State to paragraph 47 of the Tribunal of Commissioner’s decision in R(IS)2/08:

 

“Section 12(8)(a) of the 1998 Act does not provide a complete answer. It provides that, in deciding an appeal, a tribunal need not consider any issue that is not raised by the appeal. The implication is that a tribunal must consider every issue that is raised by the appeal and, as a tribunal has an inquisitorial or investigative function, that includes any issue that is “clearly apparent from the evidence” (Mongan v Department for Social Development [2005] NICA 16 (reported as R3/05 (DLA)). Therefore, what a tribunal must not do is ignore an issue that is clearly apparent from the evidence…..”

 

9.                  I can see the force of these submissions. However I do not consider they necessarily support the view that the First-tier Tribunal, as this tribunal effectively said it had to do, must consider all descriptors as a matter of course including those for which the Secretary of State had awarded points which were not subject of any challenge on the appeal. R(IS)2/08 is not, in my view, support for such a proposition. Whether descriptors that have not been challenged expressly on the appeal come into issue on the appeal will depend on the facts of each case.

 

10.              There is then a separate issue of whether the tribunal erred in law in “taking way” the 2 points the Secretary of State awarded for descriptor 1b in Schedule 1 to the PIP Regs (that is assuming it did not err in the ways described above). I accept the Secretary of State’s argument that taking such action would not amount to an error of law if the taking away of the points made no difference to the decision on entitlement. For example, where a person is found by the Secretary of State to score 6 points, appeals seeking another 2 points, and the First-tier Tribunal correctly reason out why the other 2 points were not applicable and removes two of the 6 points the Secretary of State had scored.  That situation seems to me to be on all fours with the situations considered by Upper Tribunal Judge Lane in AS –v- SSWP [2012] UKUT 334 (AAC) and Upper Tribunal Judge Wikeley in TS –v- SSWP (ESA) [2012] UKUT 182 (AAC). As Judge Lane put it at paragraph [16] in AS “It makes no difference whether [the claimant] misses the …point[s] threshold by a small margin or a gulf.  He is not ‘holding’ a handful of points”. Judge Wikeley made much the same point in TS at paragraph [22]:

 

“….the argument that the appellant has some sort of protected or vested right to the 6 points awarded by the decision maker is problematic.  Most notably, it ignores the principle that the FTT is not simply reviewing the decision maker’s decision – it is standing in her shoes and can make any decision she could have made.  The appeal is by way of a rehearing (see R(F) 1/72 and R(IB) 2/04 at [25]).” 

 

11.               However, as both Judges Lane and Wikeley recognised, removing points in such circumstances may give rise to issues of natural justice and an appellant’s right to a fair hearing.  As Judge Lane put it in paragraph [17] of AS :

 

“It is a common misconception that the points they have been awarded by the decision maker are ‘in the bag’.  They may not, therefore, come prepared to argue about points which they believe to be safe.  Unless, therefore, the Tribunal explains its powers to change the decision for the better or the worse, including the power to add to, vary, reduce or remove the descriptors and points awarded for them, an appellant may be seriously prejudiced.” 

 

 

Judge Wikeley said similarly at paragraph [23] of TS (following on directly from the quote above):

 

“Be that as it may, the fact remains that both the appellant and his representative assumed (with good reason) that there was no dispute over the award of at least 6 points for “getting about”.  I do not think the appellant needed some sort of formal warning at the very start of the hearing to the effect that his points might go up or down.  However, at the very least the appellant was entitled to be put on notice at some stage, and before it was too late, that the FTT had misgivings about the 6 points awarded for “getting about”.  In doing so, it was important that the appellant had the opportunity to make his case in the knowledge of the arguments to the contrary.  For example, the FTT panel could have said something along the lines of “Now, we see that the decision maker awarded 6 points for “getting about”, which conflicts with the view taken by the medical examiner.  We’re not sure about the award of those 6 points.  So, we’d like to explore with you further what it is that stops you getting out and about...””

 

12.              However, I am reluctant to explore this issue further here given (a) the tribunal’s wrong view (or at least wrongly expressed view) that it was obliged to consider the points awarded under descriptor 1b regardless of the evidence, and (b) the fact that I am setting its decision aside on other grounds above.

 

13.              What I will say, however, is that I can find nothing in the record of proceedings showing the tribunal advised the appellant that it had concerns about the descriptor 1b award and so put her on notice that she might need to address this issue specifically.  Indeed, the record appears to indicate the Secretary of State’s presenting officer saying at the start of the hearing that he had spoken to the appellant and “only looking at dressing/undressing. Accept no mobility. We’re happy with points awarded”. The “We’re” is either a reference to the Secretary of State as a corporate body or was evidencing agreement between the Secretary of State’s delegate and the appellant that descriptor 1b was not an issue on the appeal as far as they were concerned. In those circumstances, if I have read the record of proceedings accurately, the need for the appellant being put on notice that the tribunal did not, so to speak, accept this agreement was all the more acute.

 

14.              In the circumstances and on the evidence before me, I re-decide the appeal in the terms set out above.

 

 

 Signed (on the original) Stewart Wright

Judge of the Upper Tribunal

Dated 21^st May 2015