THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

 

The appeal is allowed.

 

The decision of the tribunal given at Glasgow on 29 October 2014 is set aside.

 

The Judge of the Upper Tribunal remakes the decision of the First-tier Tribunal on the tribunal’s findings in fact.  It is as follows:

 

The Judge of the Upper Tribunal remakes the decision of the First-tier Tribunal in light of the findings in fact set out in the Reasons.  It is as follows: In the decision of the Tribunal, delete in the table “1. Preparing Food” etc and substitute therefore:

 

3. Managing therapy or monitoring health condition

c.  Needs supervision, prompting or assistance to manage therapy that takes no more than 3.5 hours a week

2 Points

 

Otherwise the decision is upheld to the effect that the appeal is refused and the Secretary of State’s decision dated 12 March 2014 is confirmed.

 

REASONS FOR DECISION

 

1. I have allowed the appeal in respect that the FtT erred in its construction of Activity 1. Preparing food and of Activity 3. Managing therapy etc. The effect of this is that the two points awarded for Activity 1.c. are removed but 2 points are added for Activity 3.c. The result is that the total points awarded by the tribunal remain the same and accordingly the decision of the Secretary of State dated 12 March 2014 remains confirmed to the effect that the claimant is not entitled to any rate of the daily living component from 8 October 2013 as he only scored 6 points and is not entitled to any mobility component in respect of the score of 4 points awarded by the tribunal.

 

2. This appeal concerns the proper interpretation of Activities 1.c and 3.c, which are in the following terms:

 

1. Preparing food

c. Cannot cook a simple meal using a conventional cooker but is able to do so using a microwave.

2

 

3.  Managing therapy or monitoring health condition

c. Needs supervision, prompting or assistance to be able to manage therapy that takes no more than 3.5 hours a week

2

 

The construction of Activity 3.c is of importance because it is also the construction that regulates Activities 3.d to f as well because they all use the same descriptor of “Needs supervision, prompting or assistance to be able to manage therapy” but with different time period.

 

3. Activity 1.c. – The tribunal allowed Activity 1.c saying:

 

“We agreed that descriptor 1c applied on the basis that the appellant was unable to bend down to use the conventional oven but could use a microwave.”

 

The Secretary of State argues in submission that this is incorrect because the definition in Schedule 1 provides that “ “cook” means heat food at or above waist height” and therefore whether or not a claimant can bend down to use an oven is irrelevant as the activity relates to cooking at or above waist height. I agree, but have to say that Activity 3.c is poorly drafted by including “using a conventional cooker” in the descriptor when none of the other descriptors in this activity use “conventional cooker”. All the other descriptors relate to “cook a simple meal” only. The tribunal was correct, ignoring the definition of “cook” that normally a conventional cooker will have a below waist height oven and so a claimant who cannot bend cannot use the whole cooker. I can also see difficulties coming up in the future as to what is meant by a “conventional cooker”; is it a gas cooker, an electric plate cooker, a flat piece surface where elements heat up under the surface. Some people may not be able to use gas cookers if they are allergic to gas or cannot press down the switch to start the spark which is common on a conventional gas cooker – it could be said that they “Cannot cook a simple meal using a conventional cooker”. If this remains a hypothetical cooking test, then what is the hypothetical conventional cooker? I do not need to answer these questions in this decision.

4. I therefore hold that the tribunal erred in allowing 2 points for Activity 1.c and delete that activity from the tribunal’s decision.

5. Activity 3.c to f. – I also agree with the Secretary of State that the tribunal has misinterpreted Activity 3.c to f. The issue turns on the meaning of “Needs supervision, prompting or assistance to be able to manage therapy”. The tribunal was asked to make an award under Activity 3.f. but declined to make an award under 3.f. saying that:

 

“20. In relation to descriptor 3f it was argued by the representative that because the appellant’s wife requires to assist him for a maximum of 10 minutes to set up the TENS machine and for approximately 2 minutes to remove it at the end of each session that he requires assistance to manage the entire length of hi therapy which lasted for between 1 and 12 hours a day. We do not accept this. The relevant therapy in this case is what the TENS machine does while it is fitted to the appellant. Assistance to set it up is not assistance with the management of the therapy. It is undoubtedly assistance with the fitting of the instrument which delivers the therapy but once in place the therapy manages itself.”

 

 

Having interpreted the descriptor in that way it excluded the tribunal from considering whether or not Activity 3.c. applied.

 

 

 

 

 

6. The Secretary of State submits that the tribunal was wrong to hold that “Assistance to set [the TENS] up is not assistance with the management of the therapy” because manage should be given a wider meaning because “It would be illogical to say that someone can manage their therapy unaided if without being aided they cannot even begin it.” I agree with the Secretary of State in principal but I reach the same conclusion for a slightly different reason. The phrase is “assistance to be able to manage therapy”. The assistance in setting up the TENS machine for the claimant, then allows the claimant to manage his therapy. I therefore agree that the 12 minutes spent by his wife each day in setting up and taking down the TENS machine is assistance to be able to manage the therapy that took no more than 3.5 hours a week and so Activity 3.c. applies.

 

7. I therefore hold that the tribunal also erred in failing to consider Activity 3.c. and find that the claimant is entitled to 2 points under Activity 3.c.

 

8. I agree with the Secretary of State that the assistance that was given was for no more than 3.5 hours each week. I agree that the time the claimant spent on his own on the TENS machine was not time that should be taken into account and therefore Activity 3.f. is not applicable.

 

9. For these reasons I allow the appeal and substitute the decision that the tribunal ought to have made, but in the event this is not of any assistance to the claimant because it still leaves him short of the number of points that might trigger an entitlement to PIP.

 

 

 

 

 

 

 

(Signed)

Sir Crispin Agnew of Lochnaw Bt QC

Judge of the Upper Tribunal

Date: 20 May 2015