Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CPIP/1206/2015

ADMINISTRATIVE APPEALS CHAMBER

Before: A. Rowley, Judge of the Upper Tribunal  

Decision:  I allow the appeal.  As the decision of the First-tier Tribunal (made on 9 December 2014 at Runcorn under reference SC121/14/00399) involved the making of an error in point of law, it is set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is remitted to the tribunal for rehearing by a differently constituted panel.

REASONS FOR DECISION

Introduction

1.    This is an appeal by the claimant from a decision of the Runcorn First-tier Tribunal dated 9 December 2014.  The tribunal upheld the decision dated 7 July 2014 of the Secretary of State for Work and Pensions to the effect that the claimant was not entitled to an award of either component of personal independence payment (“PIP”). I granted permission to appeal to the Upper Tribunal.  The Secretary of State supports the appeal on limited grounds.

This decision

2.    Whilst the appeal succeeds on the basis that the tribunal erred in law because it did not give adequate reasons to explain its decision in relation to mobility activity 2, this decision may be of more general interest in terms of its consideration of whether an asthma inhaler is an “aid” for the purposes of regulation 2 of the Social Security (Personal Independence Payment) Regulations 2013.  I am of the view that it is not.  I also make some observations on what a tribunal should have in mind when considering daily living activity 4(e).

Background

3.    The claimant has a number of medical conditions, including asthma, arthritis in all joints, lower back pain, severe cramp in his back, hands and feet, tennis elbow and depression.  On his PIP form, which was received by the Department on 14 October 2013, he indicated that he had problems with a number of activities. 

4.    A face to face consultation was carried out by a Health Professional on 5 June 2014.  The Health Professional was of the view that the claimant’s lower limb restrictions and slightly reduced power and grip to his upper limbs indicated that he needed: (a) to use a perching stool and light weight pans to help with cooking; (b) a grab rail and long handled sponge to help with getting in and out of the shower over the bath and washing, respectively; (c) grab aids and adapted clothing to help to dress.  The Health Professional also concluded that the evidence suggested a walking ability of more than 50 metres but no more than 200 metres safely, reliably, repeatedly and within a reasonable timescale.

5.    On 7 July 2014 the decision maker decided that the claimant scored a total of 6 points under the daily living descriptors (1(b), 4(b) and 6(b)) and 4 under mobility descriptor 2(b).  These were insufficient to meet the statutory thresholds, and so the decision maker decided that the claimant was not entitled to an award of either component of PIP. 

6.    The claimant appealed to the First-tier Tribunal.  His representative provided a written submission which accepted the decision under daily living descriptors 1(b) and 6(b), but put in issue (amongst others) daily living descriptor 4(f) and mobility descriptor 2(c).  The tribunal refused the claimant’s appeal, and upheld the decision of 7 July 2014 in its entirety.

Mobility Activity 2

The terms of the activity

7.    The Secretary of State supports the appeal in relation to the First-tier Tribunal’s consideration of mobility activity 2 (“moving around”), which is in the following terms:

Regulations 4 and 7 of the Social Security (Personal Independence Payment) Regulations 2013

8.    Regulations 4 and 7 of the Social Security (Personal Independence Payment) Regulations 2013 are relevant.  The relevant parts of regulation 4 provide 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.”

9.    Regulation 7 provides for what has become known as “the 50% rule”:

“7(1) The descriptor which applies to C in relation to each activity in the table referred to in regulations 5 and 6 [respectively the scoring provisions for the daily living and mobility activities] is –

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

Inadequate reasons

10. The tribunal awarded 4 points for mobility activity 2(b).  In doing so it decided that from his own evidence the claimant was able to walk more than 50 metres.  It is right to say that in considering distances walked the tribunal did have regard to the evidence that the claimant walked to the local shops and back, and went to the park.  However, there was no indication of the distances walked, other than the claimant’s estimation that the distance to the local shops was that of about three or four blocks.  The only distance recorded was the one-off observation of the Health Professional that the claimant had walked 100 metres (page 66). 

11. The claimant had said on the PIP form that he would be in extreme pain after walking for 50 yards, and he would be out of breath for at least 5 minutes.  There is, however, no reference to this evidence in the Statement of Reasons.  Further, there is nothing in the Statement of Reasons to suggest that the tribunal gave proper regard to regulation 7 regarding the claimant’s ability to stand and move around on over 50% of the days (earlier in the Statement of Reasons the tribunal had found that the claimant “sometimes” walked to the local shops and back, and “sometimes” took his grandson to the park). 

12. Perhaps more significantly, there is nothing in the Statement of Reasons to suggest that the tribunal considered the provisions of regulation 4(2A) when assessing whether the claimant satisfied the “moving around” descriptors.  In particular, on the facts of this case it may be that regulation 4(2A)(d) (which provides that a claimant is to be assessed as satisfying a descriptor only if he can do so within a reasonable time period, as defined by regulation 4(4)(c)) was of some relevance.

13. I agree with the Secretary of State’s submission that for these reasons the tribunal erred in law and I set its decision aside.  As further findings of fact are required, I remit the matter to a new First-tier Tribunal to be reheard. 

14. It is appropriate for me to give guidance to the new tribunal on other issues which have arisen on the appeal.

Is an asthma inhaler an “aid”?

15. The question as to whether or not an asthma inhaler is an aid under regulation 2 was not addressed by the tribunal, although it found that the claimant could walk a distance of between 100 and 200 metres if he used an inhaler. 

16. The claimant had been prescribed a ventolin inhaler (to be used as needed) and a preventer (which he took daily).  The Health Professional had noted that the claimant had an audible wheeze and that a cough was present during the assessment.  He was observed to have a poor peak flow. 

17. The claimant’s evidence was that he needed to “take a puff on his inhaler” before walking a distance, and indeed had used his asthma spray before the walking observed by the Health Professional.  In contrast to descriptors 2(a), (b), (e) and (f), which apply whether the claimant can satisfy the criteria either aided or unaided, descriptor 2(c) only applies if the claimant can stand and then move more than 20 metres but no more than 50 metres “unaided.”  A claimant who satisfies this descriptor will attain the requisite 8 point threshold for the standard rate of the mobility component. (Descriptor 2(d) is the appropriate one where the claimant can move that distance “using an aid”).

18. Part 1 of Schedule 1 to the 2013 Regulations defines “unaided”:

“Unaided” means without –

(a)  the use of an aid or appliance; or

(b)  supervision, prompting or assistance.”

19. By regulation 2

“’aid or appliance’

(a)   means any device which improves, provides or replaces C’s impaired physical or mental function; and

(b) includes a prosthesis.”

20. This is, on any view, a broad definition.  The Secretary of State submits that an asthma inhaler does not fall within it.  He contends that the prescription medicine may improve the claimant’s impaired physical function of breathing, but is not an “aid” as it is not a “device.”  And although the inhaler could be described as a “device,” it simply delivers the medication into the body and so does not, in itself, improve, provide or replace a claimant’s impaired physical function. 

21. The claimant’s representative argues that one should not artificially split the inhaler and medication into two parts.  Rather, the matter should be considered holistically.  He compares and contrasts the situation to a teaspoon holding medicine.  That, he acknowledges, is not an aid, as the teaspoon can be separated from the medication.  But in the case of an asthma inhaler, he submits that the medication is part of the device, and the overall device improves the claimant’s impaired physical function.

22. I do not agree with the claimant’s representative’s submissions.  To construe the legislation in the manner he contends for would be to distort its natural meaning.  In my judgment an asthma inhaler does not constitute an “aid” for the purposes of the moving around descriptor.  It has long been accepted in other areas of disability benefits that a claimant’s ability should be assessed taking into account the beneficial effects of medication which it would be reasonable to expect the claimant to take (see, for example, R(IB) 1/08).  I can so no reason why this should not also apply to PIP.  It is, in my view, the medication which improves the claimant’s physical function of breathing.  The fact that that medication is administered using a device is irrelevant. 

Daily Living Activity 4

23. The tribunal awarded 2 points for daily living activity 4(b).

24. Daily Living Activity 4 (“washing and bathing”) is in the following terms:

25. “Assistance” means “physical intervention by another person and does not include speech” (Part 1 of Schedule 1 to the 2013 Regulations).

26. Regulation 4(2) provides as follows:

“(2) C’s ability to carry out an activity is to be assessed-

(a)   on the basis of C’s ability whilst wearing or using any aid or appliance which C normally wears or uses; or

(b)   as if C were wearing or using any aid or appliance which C could reasonably be expected to wear or use.”

27. Regulation 2 defines “aid or appliance” and is set out at paragraph 19 above. 

28. Although in his written submission to the tribunal the claimant’s representative contended that descriptor 4(f) applied (which the tribunal rejected), he did not put in issue descriptor 4(e).   However, the parties now agree that it is a matter which should have been considered. 

29. The claimant said on his PIP form that he needed help to get out of the bath, and he told the Health Professional that he could not get out of the bath without leaning on his wife.  The claimant told the tribunal that he needed help getting in and out of the shower (which was over the bath), because he had to climb over the side of the bath.  The Health Professional was of the opinion that grab rails (and a long handled sponge) would help with washing and bathing.  The tribunal said that it accepted the Health Professional’s evidence. 

30. The parties agree that, given its finding that the claimant needed help to climb over the side of the bath, the tribunal should have considered descriptor 4(e).  On the face of it, the claimant needed “assistance to be able to get in or out of a bath or shower.”  If the tribunal had had this in mind it would not, however, have been the end of the matter.  Pursuant to regulation 4(2), the tribunal should have gone on to ask the claimant whether he would be able, without physical intervention by another person, to get out of the bath/shower using grab rails. 

31. However, it may well be that the tribunal’s failure to consider these matters did not amount to a material error, as even if the claimant had satisfied descriptor 4(e) the total points under the daily living activities would have been only 7. 

Other matters

32. I will mention two other matters.  First, it is not necessary for me to deal with any other error on a point of law that the tribunal may have made.  Any that were made will be subsumed by the re-hearing, and no further guidance to the new tribunal is required.

33. Secondly, on granting permission to appeal I asked the parties to address the relationship between regulation 4(2) and descriptor 2(c) in relation to moving “unaided.”  The former provides for an assessment to incorporate aids and appliances where normally worn or used or which the claimant could reasonably be expected to wear or use, whilst the latter refers to the claimant’s ability to “stand and then move unaided” (my emphasis).  The Secretary of State contends that the apparent conflict between these two provisions should be resolved by the terms of the clear and unambiguous descriptor being applied.  The claimant’s representative concurs.  I share the same view, but I stress that I have not had full argument on the issue from both sides.

Conclusion

34. For the reasons set out above, the decision of the tribunal involved the making of an error in point of law and it is set aside.  The matter is remitted to a new tribunal for rehearing. 

Directions to the new tribunal

35. These directions may be added to or amended by a District Tribunal Judge.

36. The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.  It 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. 

37. The tribunal will need to have regard to the grounds on which I have set aside the decision.  In particular, it must address the following:

(i) In assessing the claimant’s ability to carry out the activities contained in Parts 2 and 3 of Schedule 1 to the 2013 Regulations the tribunal’s considerations must include regulations 4(2A), 4(4) and 7.   

(ii) In considering mobility activity 2, the tribunal will assess the claimant’s ability to move around on the basis that the asthma inhaler does not constitute an “aid.”

(iii) In considering daily living activity 4 the tribunal should, in addition to other issues which may arise, make findings, based on the evidence, as to whether the claimant would be able (safely) to get in or out of the bath/shower using (say) grab rails[1] and, if not, whether he would need “assistance” to be able to do so.  Only if he would so need assistance would he satisfy descriptor 4(e).  

38. However the tribunal should not limit itself to these matters, but must consider all aspects of the case entirely afresh.

39. The tribunal must consider all the evidence anew and is not bound in any way by the decision of the previous tribunal.  Depending on the findings of fact it makes, the new tribunal may reach the same or a different conclusion to that of the previous tribunal.

40. The tribunal must not take account of circumstances that were not obtaining at the time of the decision: see section 12(8)(b) of the Social Security Act 1998.  Later evidence is admissible, provided that it relates to the time of the decision.  In other words, the new tribunal will be looking at the claimant’s health problems as at the date of decision under appeal.  For any further evidence or medical information to be of assistance, it will need to shed light on the claimant’s health problems at that time.

41. If the claimant has any further written evidence to put before the new tribunal, this should be sent to the new tribunal within one month of the date of the letter sending out this decision.

42. Although I am setting aside the tribunal’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether or not the claimant is entitled to either component of PIP.  That is a matter for the new tribunal. 

1. Rowley, Judge of the Upper Tribunal

(Signed on the original)

Dated: 5 October 2015