Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CPIP/1059/2015

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and I substitute my own decision that the claimant scores 10 points in respect of the daily living descriptors in schedule 1 to the Social Security (Personal Independence Payments) Regulations 2013 and is therefore entitled to an award of the daily living component at the standard rate from and including 31 October 2013 up to the date from which any decision has been made to apply on the next application by the claimant for that award.

REASONS FOR DECISION

1.    This is an appeal by the claimant with the permission of a District Tribunal Judge from a decision of the First-tier Tribunal dated 29 September 2014 dismissing the claimant’s appeal from a decision dated 31 March 2014 of a decision maker that the claimant was not entitled to any award of personal independence payment (PIP) at the standard rate from 31 October 2013.  The decision maker had concluded that the claimant scored 2 points in relation to taking food and 4 points in relation to taking nutrition, a total of 6 points for daily living activities.  On reconsideration another decision maker reached the same conclusion.  The First-tier Tribunal, however, after a paper hearing with additional written evidence,  concluded that the claimant only scored 4 points for daily living activities, 2 points in respect of preparing food and 2 points in respect of engaging face to face with other people.  It did not consider that she was entitled to any points in relation to taking nutrition.

2.    This appeal is limited to the correctness in law of the tribunal’s finding and reasoning in relation to the taking nutrition.  As to this the tribunal stated in the statement of reasons:

“Activity 2: Taking nutrition: [the claimant] stated that her daughter had to encourage her to eat as she had lost her appetite… This descriptor is about the taking of nutrition which is defined as “cut food into pieces, convey food and drink to one’s moth [sic] and chew and swallow food and drink or take nutrition using a therapeutic sources [sic]”.  It was clear that [the claimant’s] problems related to the motivation to prepare suitable food for herself and that when food had been prepared by others she was able to eat and drink.  0 points awarded.”

3.    I also note that the tribunal’s findings of fact include that she lived alone (finding of fact 3), that she was not motivated to eat alone (finding of fact 38) and that she had severe appetite loss and lived on soup and coffee, although her daughter was said to cook for her 4 days a week (find of fact 43). 

4.    We are not here concerned with a therapeutic source, which relates to tube feeding.  The relevant descriptor which carries the 4 points awarded by both decision makers is “Needs prompting to be able to take nutrition”.

5.    In assessing a claimant’s ability to carry out an activity, regulation 4 of the Social Security (Personal Independence Payment) Regulations 2013 provides as follows:

“(2A) Where C’s ability to carry out an activity is assessed, C is to be assessed as satisfying a descriptor only if C can do so –

(a)  safely;

(b)  to an acceptable standard;

(c)  repeatedly; and

(d)  within a reasonable time period;

…………….

 (4) In this regulation –

(a) “safely” means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity;

(b) “repeatedly” means as often as the activity being assessed is reasonably required to be completed; and

(c) “reasonable time period” means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity.”

6.    Regulation 7(1)(a) goes on to provide that “The descriptor which applies to C in relation to each activity in the tables referred to in regulations 5 and 6 [respectively the scoring provisions for daily living activities and mobility activities] is –

(a) where one descriptor is satisfied on over 50% of the days of the required period, that descriptor;

(b) where two or more descriptors are each satisfied on over 50% of the days of the required period, the descriptor which scores the higher or highest number of points”.

7.    Schedule 1 begins with definitions of some of the terms used in that Schedule.  “Prompting” means reminding, encouraging or explaining by another person”.  “Supervision” means the continuous presence of another person for the purpose of ensuring C’s safety”.  “Assistance means physical intervention by another person and does not include speech”. 

8.    The combination of regulations 4 and 7 as quoted above mean that the claimant was entitled to score points under this heading if he could not take nutrition without prompting to an acceptable standard for at least 50% of the time during the relevant period as often as that activity was reasonably required to be completed and taking no longer than twice as long as the maximum time which a person without a relevant physical or mental disability would take.

9.    Her own evidence, which appears to have been accepted is that her lack of energy prevents her cooking, that she stays with her daughter 4 days a week when the daughter would cook and that her daughter encouraged her to eat as she had severe appetite loss and would happily live on soup and coffee.  The ATOS healthcare report states that the claimant would get a sandwich at lunchtime.  She was not cooking much and would not cook on her own, and that she had low motivation and appetite.  The opinion of the healthcare professional was that she needed prompting to be able to take nutrition.

10. The finding of the tribunal was that she lived on soup and coffee and had severe appetite loss.  The tribunal, in its findings, appears to have confused the claimant’s lack of motivation to cook with her loss of appetite and lack of motivation to eat.  There was no evidence to suggest that if her daughter prepared nutritious food for her she would take it without prompting, and the tribunal’s own findings of fact indicated the contrary.

11. Living on soup and coffee, even with the occasional sandwich, cannot be seen as taking nutrition to an acceptable standard, and it is plain on the tribunal’s own findings of fact that the claimant had no appetite for anything more and had to be encouraged to eat.  There is nothing in those findings to suggest that her appetite returned if somebody else did the cooking.  Rather it indicated that she would still need encouragement to eat properly even if somebody else had done the cooking.

12. I am satisfied that the decision makers were correct to award 4 points for this activity, and that on the tribunal’s findings of fact she scores a total of 10 points in relation to the daily living activities and that she was therefore entitled to an award of the daily living component of PIP at the standard rate.  I have a submission from the representative of the Secretary of State on this appeal that the claimant was subsequently disallowed a claim for PIP made on 15 January 2015, but I also have a submission received on 4 August 2015 that the claimant has now been awarded the daily living component of PIP at the standard rate on a second claim.  Whatever the position in that respect, this decision and the resulting award will only cover entitlement up to the date from which PIP was next awarded or refused.

(signed)

Michael Mark

Judge of the Upper Tribunal

17 September 2015