Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CPIP/2168/2015

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 setting aside the decision of the Secretary of State dated 14 October 2014 and substituting my own decision that the claimant is entitled to an award of the standard rate of the daily living component of the personal independence payment from 6 June 2014 to 25 May 2015.

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 18 May 2015 dismissing the claimant’s appeal from a decision dated 14 October 2014 that the claimant was not entitled to any award of personal independence payment (PIP) from 6 June 2014.  The tribunal concluded that the claimant scored 6 points in relation to the daily living component.  By this appeal, the claimant contends that she should have been awarded 2 further points because she needed to use an aid or appliance to be able to dress or undress.  No other issue arises.

2.     The claimant’s condition had deteriorated by the time of the tribunal hearing and she made a further claim for benefit shortly afterwards at the suggestion of the tribunal.  On that claim, she was awarded the enhanced rate of the daily living component and the standard rate of the mobility component from 26 May 2015 to 22 July 2017.  This appeal is therefore now confined to her entitlement up to 25 May 2015.

3.    The tribunal, at paragraph 26 of the statement of reasons, rejected the claimant’s evidence as to help she needed from another person while dressing and undressing and went on to say “when sitting down she would be able to dress her upper and lower body.”  It did not, however, award any points for dressing and undressing.  It plainly was of the view that sitting down to dress and undress did not amount to using an aid or appliance to be able to dress or undress.

4.    In giving permission to appeal, the district tribunal judge pointed out that the finding of fact was consistent with findings by the tribunal, for which it did award points, that the claimant required a perching stool to cook and also required a stool when bathing.  There was therefore an issue whether a need to sit to dress and therefore to use something to sit on amounts to needing an aid or appliance to perform this activity.

5.    The representative of the Secretary of State on this appeal has questioned whether the tribunal did find that the claimant did need to sit and dress.  It is, of course, not necessarily the case that a statement such as that made by the tribunal means that the tribunal made a finding that the claimant needed to sit to dress.  It may have considered that the need to sit, even if proved, made no difference to the claimant’s entitlement.  However, it appears to me that having found that the claimant suffered from pain and fatigue, including back pain, and that she did need a perching stool to cook and a stool in the bath which “took pressure off her back and assisted her”, it appears to me that the tribunal was finding in this case that she did need to sit to dress.  In this respect I note that paragraph 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (the PIP regulations) provides that ““dress and undress” includes put on and take off socks and shoes”. 

6.    Notwithstanding the submissions of the representative of the Secretary of State to the contrary, I can see no reason why dressing, including putting on shoes and socks, particularly when suffering from pain and discomfort in the process, can be expected to take less time than bathing or preparing, possibly in stages, a simple meal (defined in paragraph 1 of Schedule 1 to the PIP regulations as a cooked one-course meal for one using fresh ingredients).

7.    No point has been taken by the representative of the Secretary of State on this appeal as to whether the descriptor’s reference to the need for an aid or appliance to dress or undress is satisfied if the claimant cannot do one or the other without an aid or appliance or whether it is only necessary that she should need an aid or appliance for one of those purposes.  This is a perennial problem with drafting of descriptors such as this one, and I find it extraordinary that the draftsmen of these regulations still fail to spell out clearly which is to be the case despite the problems and sometimes conflicting case law, with the resulting cost to the public purse, caused by the failure to make clear what is intended.

8.    In the present case, it appears to me that there is unlikely to be any significant difference between the need of the claimant to sit when dressing and when undressing, and I therefore proceed on the basis that the need to sit exists both when dressing and when undressing.

9.    An “aid or appliance” is defined by regulation 2 of the PIP regulations as follows:

“aid or appliance”-

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

(b)  includes a prosthesis”

10. There is no definition of “device”.  The representative of the Secretary of State has drawn attention to the definition in the 6^th edition of the Concise Oxford English Dictionary, 1975, as a “contrivance, invention, thing, adapted for a purpose or designed for a particular function”.  She also points out that it could be argued that a bed or chair are things invented and made for particular purposes or functions, but that it would be “unusual and outside of normal English language and usage to describe a “bed” or a “chair” as a “device” or refer to it as “an aid” or “an appliance”.”  A perching stool or a bath or shower stool, she submits, are devices specifically for the purposes for which the claimant uses them, but that is not the purpose or function of a bed or chair, and they do not become devices and therefore aids because they are incidentally sat on, or used to rest one’s foot on while dressing or undressing.

11. I am not clear why the definition in the 1975 Concise Oxford English Dictionary should be regarded as determinative with or without the qualification of what is usual or within normal English usage.  The current Oxford English Dictionary includes various definitions of device, some of which are purely abstract.  The expression must be construed here in the context of a person with an impaired physical or mental function which prevents them from undertaking certain activities without taking special measures to compensate for the impaired function.  I note in this context that certain of the mobility descriptors refer to the need for an orientation aid.  This is defined as a specialist aid designed to assist disabled people to follow a route safely.  The reference to a specialist aid clearly indicates that in general aids do not have to be specialist aids such as perching stools and shower stools.

12. It is unnecessary for me to determine exactly which forms of compensation may count as a device for that purpose.  However, I cannot see why it should matter, if he or she cannot stand to prepare the meal in the usual way, whether a claimant uses a perching stool, improvises with a bar stool, or prepares the meal sitting at a table, either in an ordinary chair or in a wheelchair, The question is not whether other people might choose to sit to do all or some of the work but whether the claimant is unable to do so without sitting or perching provided that the sitting  or perching replaces the claimant’s impaired physical ability to stand.  So too, it should not matter whether the claimant is using in the shower a special shower stool or is improvising with a garden chair.  Any other conclusion would mean that tribunals would have to investigate, whenever perching stools or shower stools were used because the claimant could not stand, whether the claimant really needed them or whether they could cope with some other object such as an ordinary stool or chair.  I do not consider that that degree of precision is required, or was contemplated by Parliament, by the word “device” in the definition of “aid or appliance”.

13. Another example may be with taking medication.  I do not see why a device for taking medication has to be a physical object that is constructed for that purpose.  The alarm system on a mobile phone could be set to go off at regular intervals during the day to remind the claimant to take medication so long as that improves, provides or replaces their impaired mental function.

14. So too with dressing and undressing, the question is not whether other people might choose to use a chair or a bed to assist when dressing or undressing, but whether a claimant is unable to dress or undress without using them or some other qualifying aid or appliance.  `I therefore conclude that the claimant did score 2 points under descriptor 6(b) “Needs to use an aid or appliance to be able to dress or undress” and therefore scored a total of 8 points in respect of daily living activities and was entitled to an award at the standard rate of the daily living component of PIP.

(signed)

Michael Mark

Judge of the Upper Tribunal

21 October 2015