Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CPIP/1787/2015

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 11 February 2015 at Newcastle upon Tyne under reference SC228/14/00489) involved the making of an error in point of law, it is set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.  It is appropriate for me re-make the decision under section 12(2)(b)(ii) of the 2007 Act. 

My decision is that the Secretary of State’s decision of 9 April 2014 is set aside and replaced with a decision that the claimant is entitled to the daily living component of the personal independence payment at the standard rate for the period from 3 June 2013 to 3 March 2015.  The claimant is not entitled to the mobility component for the same period.

REASONS FOR DECISION

1.    The claimant is an obese man who has leg pain, back pain, asthma and sleep apnoea He made a claim for Personal Independence Payment (“PIP”) on 25 June 2013.  In his PIP2 form he indicated that he needed help with a number of activities.  A face to face consultation with a Health Professional took place on 6 November 2013.  The Health Professional was of the view that the claimant needed to use an aid or appliance to be able to prepare or cook a simple meal.  He was also of the view that the claimant was able to stand and move more than 50 metres but no more than 200 metres, either aided or unaided.  The decision maker shared the Health Professional’s view, and on that basis on 9 April 2014 awarded 2 points under daily living activity 1(b) and 4 points under mobility activity 2(b).  That was insufficient to satisfy an award of either component of PIP.  Following a mandatory reconsideration the claimant was awarded 4 further points – 2 each under daily living descriptors 4(b) and 6(b) respectively.  However, the increase of points was still not enough for an award of the daily living component.

2.    The claimant appealed to the First-tier Tribunal.  He attended the hearing and gave evidence.  The Secretary of State was represented.  The tribunal refused the appeal and confirmed the decision of 9 April 2014. 

3.    I gave permission to appeal on two grounds.  I will deal with each in turn.

Daily living activity 5 

4.    Daily living activity 5 is in the following terms:

5.    The phrases “aid or appliance” and “toilet needs” are defined in the Social Security (Personal Independence Payment) Regulations 2013.

6.    By regulation 2:

“’aid or appliance’” –

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

7.    This is a broad definition.

8.    “Toilet needs” are defined in Schedule 1 to the Regulations in the follow way:

“‘toilet needs’ means -

(a)  getting on and off an unadapted toilet;

(b)  evacuating the bladder and bowel; and

(c)  cleaning oneself afterwards.”

9.    The tribunal accepted that the claimant struggled to wipe his bottom, and would use a shower head or brush to clean himself after using the toilet, yet it concluded, without more, that the claimant should be able to manage his toilet needs unaided. 

10. I agree with the Secretary of State’s submission that in the circumstances of this case a shower head or brush would fall within the definition of an aid or appliance, as the claimant used them to replace the function of wiping himself using toilet paper with his hand in order to clean himself after going to the toilet.  However, the tribunal did not award any points under descriptor 5(b). Had it done so the claimant would have scored a total of 8 points and been awarded the daily living component at the standard rate.

11. In my judgment the tribunal’s failure adequately to explain why the claimant was not awarded descriptor 5(b) amounts to a material error of law.  Accordingly, I set aside the tribunal’s decision.

12. Before I turn to the second ground upon which I gave permission to appeal I will make some observations on the reasons given by the District Tribunal Judge when refusing the claimant permission to appeal to the Upper Tribunal.  He explained his refusal in the following way:

“The definition of toilet needs is ‘getting on and off an unadapted toilet; evacuating the bladder and bowel; and cleaning oneself afterwards.’  This is a complete test.  All the elements have to be satisfied.  The tribunal did not err in law by refusing to award points because it is clear from the evidence this test was not met.”

13. I do not agree with this analysis.  The word “and” may be used in legislation both disjunctively and conjunctively.  It must be interpreted within its own particular context.  I adopt a purposive approach to the construction of the definition of “toilet needs.”  Only a moment’s reflection would lead one to see that if all three parts of the definition were required to be satisfied very few people would meet the criteria of descriptors 5(b), (c) or (d).  Bearing in mind the level of points scored for those descriptors that would be surprising indeed.  I am of the view that the word “and” must be given a disjunctive effect in this context.

14. I am satisfied that this approach is consistent with the legislative intention.  Descriptor 5(b) refers to the need to use “an” aid or appliance to be able to manage toilet needs or incontinence.  I struggle to imagine any single aid or appliance which would enable a person to manage getting on and off an unadapted toilet, evacuating the bladder and bowel, and cleaning themselves afterwards.

15. My interpretation is fortified by the Department’s PIP Assessment Guide which, I acknowledge, is of persuasive value only.  It states that, in the context of descriptor 5(b), “suitable aids could include commodes, raised toilet seats, bottom wipers, incontinence pads or a stoma bag.”  On the face of it, each of these would assist only one of the functions listed in the definition of “toilet needs.”  Further, the Guide declares that descriptor 5(d) “only refers to claimants who require assistance to get on and off the toilet and/or to clean themselves afterwards…” (my emphasis).

16. Moreover, the Secretary of State has not sought to put any argument forward in support of the interpretation put forward by the District Tribunal Judge in refusing permission to appeal in this case.

17. For the reasons set out above, in my judgment a claimant will have the requisite “toilet needs” if he or she satisfies one or more of the three elements of the definition.

Mobility activity 2

18. The second ground on which I gave permission to appeal was in relation to the adequacy of the tribunal’s reasons on mobility activity 2 (“moving around”).  I am of the view that the tribunal sufficiently explained why it awarded 4 points for descriptor (b).  The claimant’s case is that the tribunal did not take into account his explanation that he had guessed the distance to the local shop on his application form, and had since checked it using google maps and it was a much shorter distance; and that there was a good explanation for the varying distances which he had supplied.  However, the tribunal analysed all of the evidence before it (including the claimant’s assertion that his mother had done shopping for him since December 2013, since when he had not walked around a supermarket) and, for reasons which it sufficiently set out, found that the claimant was an unreliable witness who tailored his evidence to present his condition in the most favourable light. 

19. In the circumstances, I am satisfied that the tribunal made adequate findings of fact and reached a conclusion on mobility activity 2 which was open to it on the evidence before it.  Accordingly, the tribunal did not err in law in its consideration of that activity.

Conclusion

20. For the reasons set out above, as the tribunal’s decision involved the making of an error in point of law under daily living descriptor 5(b) it is set aside.  As no further findings of fact are required I consider that it is appropriate for me re-make the decision under section 12(2)(b)(ii) of the 2007 Act.  My decision is set out above. 

21. As the claimant made a new application for PIP and was awarded the daily living component at the standard rate from 4 March 2015, with no award being made for the mobility component, my decision is for a closed period to 3 March 2015. 

1. Rowley, Judge of the Upper Tribunal

(Signed on the original)

Dated: 21 October 2015