Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No: CPIP/1695/2015

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 Newport, Isle of Wight on 23 March 2015 under reference SC198/15/00019 involved an error on a material point of law and is set aside.

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.  

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 new hearing will be at an oral hearing.

(2)              The appellant is reminded that the tribunal can only deal with his situation as it was up to 12 November 2014 and not any changes after that date.

(3)              If the appellant has any further evidence that he wishes to put before the tribunal which is relevant to this appeal, this should be sent to the First-tier Tribunal’s office in Cardiff within one month of this decision being notified to him.

(4)              The First-tier Tribunal should have regard to the points made below.

REASONS FOR DECISION

1.                   Both parties agree that the First-tier Tribunal’s decision of 23 March 2015 (“the tribunal”) was erroneous in material point of law on the basis set out below. As I agree with that conclusion, I set the tribunal’s decision aside.  The tribunal erred in its approach to what could amount to an ‘aid’ to be able to prepare a simple meal in descriptor 1b in Part 2 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (“the PIP Regs”). In the context of this case that error amounted to a material error of law because if 2 points had also been awarded for descriptor 1b then the appellant would have qualified for the daily living component of PIP at the standard rate.

2.                  The tribunal found that descriptor 1b was not met because lever taps the appellant had had fitted in his kitchen because he could not use normal taps “cannot be described as an aid or appliance for cooking”. The tribunal gave no reasons for having reached this conclusion.  That alone might amount to an error of law on the part of the tribunal, though the materiality of such an error depends on whether lever taps can amount to an aid or appliance. In my judgment they can and the tribunal erred in law more fundamentally in holding that they could not.

3.                  The relevant statutory test in descriptor 1b is “Needs to use an aid or appliance to either prepare or cook a simple meal”. This falls under the activity of “Preparing food”. The word ‘cook’ is defined in part 1 of Schedule 1 to the PIP Regs as meaning to “heat food at or above waist height”. This is a restrictive definition removing the need to consider whether a claimant can bend to reach a conventional floor-standing oven: RH –v- SSWP (CSPIP) [2015] UKUT 281 (AAC).  If the only task identified in descriptor 1b was to ‘cook’ a simple meal and that is limited to meaning the heating of food on a hob then it may be arguable that lever taps do not need to be used to achieve that particular task. However as noted above the activity in question is one of preparing food and descriptor 1b also includes consideration of whether a claimant needs to use an aid or appliance to be able to prepare a simple meal.

4.                  On the face of the wording of the statutory scheme as it relates to descriptor 1b the ‘or’ between the words ‘prepare’ and ‘cook’ is to be read disjunctively. The preparation of the simple meal therefore does not need to be linked to the act of cooking and can stand alone, for example in the sense of preparing a cold simple meal such as a salad.  This is supported by the structure of activity 1, in my judgment, where a maximum of eight points is awarded if a claimant “Cannot prepare and cook food” (my underlining added for emphasis). In that context it makes sense for the lesser award of two points to apply in respect of the situation where (per descriptor 1b) the claimant needs to use an aid or appliance to prepare a simple meal even though they can cook that meal unaided. This reading of descriptor 1b is also lent support by the definition of the word ‘prepare’. It is defined in Part 1 of Schedule 1 to the PIP Regs as meaning, in the context of food ‘make food ready for cooking or eating’ (again my underlining).

5.                  It may be that the tribunal went wrong in its approach to descriptor 1b and whether lever taps are an aid by focusing too narrowly (in the language it used – see quote in paragraph 2 above) on the activity of cooking and not on the preparation of a simple meal, though its failure it explain its conclusion on this point makes this no more than an exercise in speculation. Once the focus however is on the act of preparing a simple meal, either to eat or cook, then in my judgment lever taps can plainly be an aid or appliance for the act of preparing a simple meal as they may be needed for tasks such as the washing and cleaning of food as well as plates, chopping boards and other such utensils. The ability to carry out the activity of preparing food for eating or cooking is to be assessed, inter alia, on whether it can be done safely and to an acceptable standard (per regulation 4(2A) of the PIP Regs), and not washing food or utensils before using them very arguably would meet neither of these conditions.

6.                  The phrase ‘aid or appliance’ is defined compendiously in regulation 2 of the PIP Regs as meaning ‘any device which improves, provides or replaces [a claimant’s] impaired physical or mental function’. The tribunal appears to have accepted (and it certainly didn’t reject) that the appellant had arthritis in his hands and because of that condition had had lever taps fitted in his kitchen after an occupational therapy assessment.  This evidence alone on its face in my judgment supports both that the appellant needed to use the lever taps to be able to prepare food and that they are an aid in the statutory sense as they improved the appellant’s impaired physical function of the lack of necessary grip in his hands (due to the arthritis) to turn non-lever taps.

7.                  The Secretary of State through Mrs Helen Hawley in her helpful submission on the appeal to the Upper Tribunal on pages 159-164 in essence supports this analysis.  That submission points out that the DWP guidance document PIP Assessment Guide accepts that aids and appliances for activity 1 “Preparing food” can include single lever taps. Consistent with this, the PIP claim form on its page 10 of 40 at question 3a – Do you use an aid or appliance to prepare or cook a simple meal? – lists, inter alia, single lever arm taps as such an aid.  Of course these documents cannot determine what the law is, but what they both say is entirely consistent with my reading of the law.

8.                 Had this been the only point in issue on this appeal then I may well have been inclined to remake the First-tier Tribunal’s decision myself by awarding the appellant the additional two points for activity 1b and hence the standard rate of the daily living component of PIP. However another issue arises on the appeal which does need to be re-decided by the First-tier Tribunal and therefore the appellant’s entitlement to the daily living component of PIP will also need to be re-decided entirely afresh by the new First-tier Tribunal. In so doing, however, that tribunal is bound by this decision to find that lever taps are an aid for preparing food under activity 1 in Schedule 1 to the PIP Regs. The issue that may then be left over on activity 1b is whether the appellant needed to use such taps to prepare a simple meal at the relevant time. The fact that the occupational therapy assessment found they were needed may go a long, if not the whole, way to satisfying this part of the test. Certainly, if it were to be found that the appellant did not need to use the lever taps to prepare a simple meal even though an occupational therapist has apparently assessed a need for them, then that will need to be adequately explained.

9.                  The other matter which will need to be re-decided is whether the appellant satisfies any of the qualifying descriptors for the mobility component of PIP and in particular whether he satisfies descriptor 1d in Part 3 of Schedule 1 to the PIP Regs. The Secretary of State submission on the scope of this descriptor is in line with the decision of the Upper Tribunal in DA –v- SSWP [2015] UKUT 344 (AAC). I am aware that a contrary view as to the scope of descriptor has been arrived at in RC –v- SSWP [2015] UKUT 386 (AAC).  At least one other Upper Tribunal decision (with file reference UK/313/2015 (PIP)) is due on this issue in the near future.

10.              Neither party asks me to decide this issue on this appeal however, and I decline to do so. My reasons are threefold. First, no contested argument has been put forward on the issue and to seek such argument would unnecessarily delay deciding this appeal. Second, it is unnecessary for me to decide the point because it has already been addressed in the two decisions referred to above and is likely to be decided in at least one other Upper Tribunal decision (UK/313/2015 (PIP)) before this appeal falls to be re-decided. Third, it is also unnecessary to decide between the conflicting approaches in DA and RC because even if the approach in DA to ‘following a route’ is correct, as Mrs Hawley for the Secretary of State points out in paragraph 4.11 on page 164, the appellant’s mild deficiency in his intellectual functioning may be relevant to mobility descriptor 1d even under the DA approach and still needs to be properly considered by the First-tier Tribunal.

11.               For the reasons set out above, the tribunal’s decision dated 23 March 2015 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided entirely afresh by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber) at an oral hearing, which I have directed above.

12.              The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether his appeal will succeed on the facts before the new First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.  

Signed (on the original) Stewart Wright

Judge of the Upper Tribunal

Dated 5^th October 2015