Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CPIP/1739/2015

ADMINISTRATIVE APPEALS CHAMBER

 

Before M R Hemingway: Judge of the Upper Tribunal

 

Decision: The decision of the First-tier Tribunal sitting at St Helens on 30 May 2015 under reference SC244/15/00039 involved an error of law and is set aside.

 

The appeal is remitted for determination at an oral hearing before a completely differently constituted tribunal.

 

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

 

 

DIRECTIONS

 

Subject to any later directions by a District Tribunal Judge of the First-tier

Tribunal, the Upper Tribunal directs as follows:

 

(1) The appeal shall be considered at an oral hearing at a venue convenient for the appellant.

 

(2) The new First-tier Tribunal shall not include the tribunal judge or the other tribunal members previously involved in considering this appeal on 30 March 2015.

 

(3) The appellant is reminded that the new tribunal can only deal with his situation as it was down to 5 September 2014 (the date of the original decision of the Secretary of State under appeal) and cannot deal with any changes after that date.

 

(4) If the parties have further written material to place before the tribunal this should be sent to the appropriate tribunal office within one month of the issuing of this decision. To be relevant, any such further evidence will have to relate to the circumstances as they were as at the date of the original decision of the Secretary of State under appeal (see above).

 

(5) The new tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

 

 

 

 

 

 

REASONS FOR DECISION

 

The decision in summary

 

1. This is the appellant’s appeal to the Upper Tribunal against the decision of the First-tier Tribunal (F-tT) dated 30 March 2015.  My decision is that the F-tT’s decision involved an error of law.  I allow the appeal to the Upper Tribunal and set aside the F-tT’s decision. The appeal against the Secretary of State’s decision dated 5 September 2014 will have to be reheard by a new tribunal.

 

The background to this appeal

 

2. The appellant suffers from multiple health problems.  He has difficulty in using his hands which is largely the result of his having carpal tunnel syndrome but he also has ulcer nerve damage, dupuytrens contracture and burns contracture.  Aside from the difficulties with his hands, he has neck damage, hiatus hernia, dry eyes, high blood pressure and an enlarged prostate.  He made a telephone claim for a personal independence payment on 19 February 2014 and, thereafter, completed and submitted standard form PIP2. In so doing he said that he needed assistance with the activities of preparing food, taking nutrition, managing therapy or monitoring a health condition, washing and bathing, managing toilet needs and incontinence, dressing and undressing and communicating verbally and reading and understanding signs, symbols and words.  With respect to managing toilet needs and incontinence, the appellant explained that due to his enlarged prostate he would have to visit the toilet, in order to urinate, frequently during the daytime and the night time.  He said that he would sometimes “have accidents” if he was not able to get to the toilet quickly enough and that, as a consequence, he would then have to change his clothing or his bedding.  As to dressing and undressing, he said that he had problems with buttons so he now uses velcro fasteners instead.  He said that putting clothes on “over my head” was a problem for him and mentioned some difficulties with respect to pulling up his trousers and fastening a belt.

 

3. The appellant was examined by a healthcare professional, for assessment purposes, on 1 September 2014.  A report of that date was produced.  It was noted, therein, that he had had several operations on his left hand and was awaiting surgery to the right hand.  It was recorded he had said that he would act as a carer for his mother, that he did not have any problems using a toilet, that he would sometimes fail to get to one quickly enough though that that would only occur “every now and again”, and that there would be an incidence of incontinence (bladder incontinence) about once a month.  As to dressing and undressing it is recorded that he had told the healthcare professional that, almost every day, he would have difficulty putting clothing items over his head and that someone would help him do so. He also said that he has no other problems with dressing but will wear easy slip-on items.

 

4. The healthcare professional accepted that the appellant needed to use an aid or appliance to be able to prepare or cook a simple meal, to wash and bath and to dress and undress.  However, she thought he could manage his toileting needs or incontinence unaided. In explaining why she took that view she noted that the incontinence would only occur once a month and that the appellant was able to use the toilet independently. She observed that the incontinence “occurs less than 50% of the time”.

 

5. On 5 September 2014 the respondent decided that the appellant was not entitled to a personal independence payment. It was accepted that he scored 6 points with respect to the daily living component as a result of the difficulties identified by the healthcare professional but that he scored no further points such that he did not attain the 8 he required for entitlement to the standard rate or the 12 he would have required for entitlement to the enhanced rate. He did not score any points with respect to the mobility component, that outcome not being surprising because he had not claimed any relevant difficulties. Dissatisfied with the part of the decision concerned with the daily living component he sought a mandatory reconsideration.  That resulted in the issuing of a decision of 20 January 2015 which, in fact, simply confirmed the original decision. Remaining dissatisfied, the appellant appealed. 

 

The appeal before the First-tier Tribunal and its decision

 

6. An oral hearing was held at the request of the appellant. He attended and gave evidence. He was not represented.  There was no attendance on behalf of the respondent. The tribunal dismissed the appellant’s appeal, concluding that he was entitled to 6 points in relation to the daily living component being 2 each in respect of preparing food, washing and bathing and dressing and undressing but no further points. The F-tT subsequently produced its statement of reasons for decision (statement of reasons). 

 

7. The F-tT clearly had concerns about the appellant’s oral evidence. As to those it said this;

 

“12. We found the appellant vague to the point of being evasive when questioned about his daily activities today and we also found that he had exaggerated the extent of his disabilities.”

 

8. The tribunal, possibly intending to give an example of exaggeration, then pointed out that whilst he had claimed significant impairment with respect to the use of his hands, his left hand had shown only minimal signs of dupuytrens contracture and his right hand had shown no sign of it at all.  This was on the basis of its observations at the hearing.

 

9. As to toileting and incontinence the F-tT said this;

 

“14. [the appellant] submits that he should have awarded (sic) points under the heading relating to toilet needs as it has been agreed that he needs an aid to dress. Managing toilet needs includes getting on and off an adapted toilet, evacuating the bowel or bladder and cleaning oneself afterwards. It does not include the act of dressing or undressing. We do not consider that he qualifies for points under this heading.”

 

10. As to difficulties he had with washing and bathing and with dressing and undressing,  the F-tT said this;

“16. [the appellant] has said that he needs assistance to wash between the shoulders and the waist and to dress and undress his upper body. Whilst we accept that [the appellant] cannot raise his arms above his shoulders we find that there is no clinical reason why he is unable to wash his body between the shoulders and the waist or to dress and undress using appropriate aids if and when necessary and the points awarded by the Respondent under this head are appropriate.”

 

11. The appellant sought permission to appeal to the Upper Tribunal.

 

The proceedings before the Upper Tribunal

 

12.   The appellant was assisted in preparing his grounds of appeal by Mr James Austin of the Adult Social Care and Health Department of St Helens Council. The first ground was to the effect that the tribunal had erred in failing to award points as a consequence of the claimed difficulties with toileting because the appellant would require assistance with the adjustment of his clothing prior to using a toilet.  It was suggested, hypothetically, that some individuals might be able to dress and undress slowly but would not be able to adjust their clothing quickly enough to prevent soiling if they had certain conditions such as irritable bowel syndrome. That was said, I think, in support of the principle that problems dressing and undressing ought to be taken into account when considering the descriptors relating to managing toilet needs or incontinence.  It was asserted that the law required clarification on this issue and that “this case could provide the opportunity for the Upper Tribunal to do just that”. The further grounds amounted to a contention that the tribunal had misunderstood the surgical history concerning his hands and had failed to appreciate that his neck problem caused him difficulty in raising his arms.

 

13. I granted permission to appeal because I thought the F-tT may have erred in failing to adequately explain its view that the appellant was “vague to the point of evasive”; in failing to adequately consider the possibility of awarding further points with respect to the descriptors relating to the activity of dressing and undressing given its acceptance of an inability to raise his arms above his shoulders and in failing to adequately consider whether difficulty regarding dressing might be relevant to the descriptors concerned with toileting and incontinence.

 

14. The respondent, through Ms A Gilfoyle, has indicated support for the appeal on the basis that the F-tT did err in failing to adequately explain why it found the appellant had exaggerated and had been evasive and in failing to consider the possibility of a higher scoring descriptor applying in relation to activity 6 (dressing and undressing) on the basis of the appellant’s difficulties regarding lifting his arms.  As to the question of managing toilet needs or incontinence, though, Ms Gilfoyle submitted that the tribunal had dealt with that matter correctly and said that the ability of a claimant to dress and undress is addressed through activity 6 (dressing and undressing) and that, therefore, any award in relation to activity 5 (managing toilet needs or incontinence) on the basis of difficulties with dressing and undressing would “lead to a duplication of points”.

 

15. The appellant, by way of reply, largely repeated the earlier points he had made with respect to toileting and incontinence. He reasserted his contention that the law ought to be clarified.

 

 

 

The legislation

 

16. Personal independence payments were introduced by the Welfare Reform Act 2012. They consist of two components being the daily living component and the mobility component but this case only concerns the former.  Entitlement, if there is any, will be at the standard rate or the enhanced rate depending on how many points are scored under the activities and descriptors contained within schedule 1 to the Social Security (Personal Independence Payments) 2013. In so far as it concerns the issues raised in this appeal Part 2 of the schedule provides:

 

Activity   5. Managing toilet needs or incontinence                           6. Dressing and undressing

Descriptors   a. Can manage toilet needs or incontinence unaided. b. Needs to use an aid or appliance to be able to manage toilet needs or incontinence. c. Needs supervision or prompting to manage toilet needs. d. Needs assistance to be able to manage toilet needs. e. Needs assistance to manage incontinence of either bladder or bowels. f. Needs assistance to be able  to manage incontinence of both bladder and bowel. a. Can dress and undress unaided b. Needs to use an aid or appliance to be able to dress or undress c. Needs either – (i) prompting to be able to dress, undress or determine appropriate circumstances for remaining clothed; (ii) prompting or assistance to be able to select appropriate clothing. d. Needs assistance to be able to dress or undress their lower body. e. Needs assistance to be able to dress or undress their upper body. f. Cannot dress or undress at all.

Points   0   2     2   4   6     8     0 2   2             2   4   8

 

 

17. Paragraph 1 of Part 1 of the Schedule provides a definition of “managing incontinence” as follows:

 

1. In this Schedule –

………

“manage incontinence” means manage involuntary evacuation of the bowel or bladder, including use a collecting or self-catheterisation, and clean oneself afterwards; …

 

 

 

18. The Schedule provides a definition of “toilet needs” as follows;

 

“toilet needs” means –

 

a) getting on and off an unadapted toilet;

b) evacuating the bladder and bowel;

c) cleaning oneself afterwards;…

 

19. There is also a partial definition of “dress and undress”:

 

“dress and undress” includes put on and take off socks and shoes;..

 

20. The above is of relevance with respect to the second and third bases upon which I granted permission.

 

 

My consideration of the arguments

 

21. Neither party has requested an oral hearing of the appeal before the Upper Tribunal. There is nothing to suggest that such a hearing will advance matters and, having reminded myself of the content of rules 2 and 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I have decided not to hold one.

 

22. The F-tT was clearly unimpressed with certain aspects of the appellant’s oral evidence.  It said he had been vague to the point of being evasive and that he had exaggerated the extent of his disabilities.  It did not, though, say very much about how it had reached those views.  It did not, in fact, give any example of vagueness nor of evasiveness.  It did make the point (as noted above) that there was little evidence of dupuytrens contracture (though it is not apparent to me that the point was put to him) and it did suggest that the amount of difficulty he claimed to have with his hands was inconsistent with the amount of care he was giving to his mother (though the record of proceedings does not show that this was explored at the hearing).

 

23. The F-tT was not required to produce a lengthy list of specific examples of what it had thought to be vagueness, evasiveness or exaggeration.  Indeed, far from it.  Reasons have to be adequate but no more than that.  However, that standard, albeit not an overly demanding one required the F-tT to give sufficient indication of its thought processes so that it would be clear to the parties how it had reached its conclusion on the appeal.  That, in my judgment, required some explanation as to why it had taken the negative view it had done regarding the appellant’s credibility. It may well have been the case that no more than an example or two, by way of illustration, as to what it had thought to amount to vagueness in his oral evidence and as to what it regarded as evasiveness or exaggeration might have sufficed.  As it is, the F-tT simply relied upon two points which were not put to the appellant or explored at the hearing being the appearance of his hands and the fact he acted as a carer for his mother.  That was not sufficient to properly explain its view as to credibility.  Accordingly and with the agreement of the respondent,  I conclude that it did err in law and I set aside its decision.

 

24. Strictly speaking I could stop there. However, I think it appropriate in this case, to say something more regarding the other bases upon which I have granted permission.

 

25. As to dressing and undressing, the tribunal clearly did accept that the appellant had some difficulties and, hence, it awarded two points under descriptor 6(b) on the basis that he would need to use an aid or appliance to be able to dress or undress.  It did not, though, appear to give any consideration to the possibility of awarding 4 points under descriptor 6(e) on the basis that the appellant would need assistance to dress or undress his upper body.  The appellant, as noted above, had said that he would need help almost on a daily basis, with putting items of clothing over his head. The F-tT had accepted that he could not raise his arms above his shoulders which, on the face of it, would lead to problems in his putting on, for example, tee shirts or pullovers.  It did not appear, from the evidence, that he was using an aid or appliance to meet this difficulty and the question of whether he might be able to do so was unexplored.  It is difficult to think of an aid or appliance which, in this context, would assist.  I commented, when granting permission, that it might have been the case that the F-tT had thought it would have been acceptable for him to wear alternative clothing, such as button up shirts or cardigans but it did not say that nor did it investigate the matter.

 

 

26. These sorts of issues were considered by the Upper Tribunal in PE v Secretary of State for Work and Pensions [2015] UKUT 309 (AAC).  The Upper Tribunal made a number of points and gave guidance as to how matters should be approached.  It was pointed out that the relevant test is a general one as to whether a claimant can dress.  A tribunal should not, it was said, limit itself to considering the minimum clothing necessary for warmth and decency but, on the other hand, it would be entitled to consider practical alternatives where certain garments could not be put on or taken off.  There was a balance to be struck.   So, in this case, had the F-tT thought about the point it would have been entitled to consider whether, instead of wearing clothing which could only be put on with the assistance of someone else as a result of his difficulty in raising his arms, the appellant could reasonably have been expected to wear alternative types of clothing. However, it did not undertake that exercise.  Accordingly it’s consideration of the descriptors under activity 6 (dressing and undressing) was incomplete and amounted to further legal error.

 

27. There is then the question of toileting and incontinence. The appellant’s contention, as noted above, is that difficulties with respect to dressing and undressing should be considered not only in relation to the descriptors linked to that activity but also in relation to question of toileting and incontinence.  He says, through his representative, that this is a matter which requires clarification although, in fact, my conclusion is that there is really nothing to clarify when one looks at the specific wording of the relevant descriptors and the attendant definitions.

 

28. The activity 5 and its linked descriptors address both managing toilet needs and managing incontinence. The two are different. Both, though, are defined. The definition of managing toilet needs, as set out above, encompasses three specific functions. The use of the word “means” within the definition, indicates that that small list of three factors is, in fact, an exhaustive list. The position would have been different had the word “includes” appeared instead of “means” but it does not. It results from that, inexorably,  that any difficulties with respect to dressing and undressing are not to be taken into account with respect to an assessment of whether or not a person is able to manage their toilet needs unaided. Only the three matters specified are.  Whilst the appellant contends that such a result is unfair that does not assist. The test has to be interpreted on the basis of the words used.

 

29. The relevant activity also encompasses the separate function of managing incontinence. In this case the appellant had indicated that he experienced incontinence of the bladder (he has not claimed to suffer from incontinence of the bowels) only rarely, in fact, according to the healthcare professional, once a month. If that is right then it would be very difficult to see how he could qualify for any points with respect to managing incontinence bearing in mind regulation 7 of the Social Security (Personal Independence Payment) Regulations 2013 which, in general terms, requires the difficulty leading to the scoring of points to be one which exists on over 50% of the days of the relevant assessment period. However, although the tribunal did not specifically say what it made of it, the appellant had given evidence that he would wet himself to a limited extent (he used the term “dribbling”) much more frequently when he gave his oral evidence. As noted above, managing incontinence is also defined. That definition too is a strict one in the sense that the  “means” as opposed to “includes” is used. It is clear from the definition, which is set out in full above, that the removal and replacement of clothing, in other words dressing and undressing, is not included. However, cleaning oneself after an incidence of incontinence is included.  So, and to perhaps answer a question raised in the appellant’s grounds of appeal to the Upper Tribunal, if a person troubled significantly by a condition such as irritable bowel syndrome were to regularly soil himself or herself as a result, then whilst a difficulty dressing and undressing and a difficulty in washing clothing would not be taken into account, any difficulty cleaning himself or herself would.

 

30. It follows from the above that the tribunal did not err in law in failing to take account of  the appellant’s difficulties with dressing and undressing when evaluating any difficulties in relation to toileting or incontinence.  That is not, in fact, because to do so would result in “double counting” as Ms Gilfoyle submits but because the relevant definitions simply do not permit it. 

 

31. For the reasons given above, though, I have concluded that the tribunal did err in law and that its decision must be set aside. That is what I do.

 

What happens next?

 

32. My having set the decision aside there are facts to be found. I accept the respondent’s submission, not opposed by or on behalf of the appellant, that the proper course of action in such circumstances would be to remit to a new tribunal. That, indeed, is what I have decided to do. The new tribunal will consider all matters afresh and will not be bound in any way by the findings or conclusions of the first tribunal.

 

 

 

 

 

Conclusion

 

33. The appellant’s appeal to the Upper Tribunal is allowed to the extent and on the basis explained above.

 

 

 

(Signed on the original)

M R Hemingway

Judge of the Upper Tribunal

Dated 11 September 2015