IN THE UPPER TRIBUNAL Case No  CPIP/1234/2015

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.   The decision of the First-tier Tribunal sitting at Cheltenham on 2 December 2014 under reference SC189/14/00291 involved the making of an error of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 17 of the Reasons.

REASONS FOR DECISION

1. Both the claimant’s representative and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.  I need only deal with the reason why I am setting aside the tribunal’s decision.

2. By a decision dated 9 May 2014 the claimant had been awarded 2 points for each of “preparing food” (1b), “washing and bathing” (4d) and “dressing and undressing”(6b).  On appeal to the First-tier Tribunal, a further 1 point was awarded for “Managing therapy or monitoring a health condition” (3b).  As the claimant remained 1 point below the threshold in respect of daily living activities and had scored no points at all in respect of the mobility component, her claim still failed.

3. The claimant, at that point representing herself, submitted lengthy grounds of appeal to the Upper Tribunal.  I gave limited permission to appeal  on the following five issues:

(i) Activity 3: Did the tribunal err in law by failing to address the claimant’s need for help applying cream for her eczema (p8) ?

(ii) Activity 4: Given the claimant’s evidence  that she struggled even when she used aids, ought the tribunal to have considered whether she had a need for assistance to be able to wash her upper body so as to   be awarded 4 points?

(iii) Activity 4: did the tribunal err by failing to make sufficient findings of fact as to the frequency with which the claimant needed assistance to be able to get into the bath or shower?

(iv) Activity 6: did the tribunal adequately explain why it awarded two points under activity 6b rather than 4 points under activity 6e? (As to what is involved in Activity 6, see the recent decision in PE v SSWP [2015] UKUT 0309 (AAC).)

(v) Activity 12: did the tribunal err by failing to consider the quality of the claimant’s walking  (particularly in relation to the problems caused by joint pain) and/or by failing to address the criteria of reg 4(2A)- i.e. a person’s ability to carry out an activity safely, to an acceptable standard, repeatedly and within a reasonable time period?

4. The Secretary of State agrees that the tribunal erred on points (ii) to (v) above.  In respect of point (i), he submits that no material error of law was made.

5. The claimant’s representative, who had by now been instructed, replied agreeing to a decision without reasons, but making reasoned observations about matters of law in relation to point (i) and on the evidence in relation to points (ii) to (v).  The latter group will best be considered by the First-tier Tribunal to whom this case is being remitted, as with the benefit of input from a medically qualified panel member and a disability qualified panel member as well as a judge it is better placed than a judge sitting alone in the Upper Tribunal to assess those issues.

6. As to point (i), relating to activity 3, among her range of health issues, the claimant has eczema.  She had claimed that she was unable to apply what she described as her moisturiser, which I take to be emollient cream, which stopped her eczema from getting worse, to certain parts of her body due to a lack of flexibility. This was not the reason why the tribunal awarded 1 point, which was because she (a) uses coloured trays to distinguish her medication and (b) “may” need help to organise her medication into those trays.  Accordingly, depending on how one takes “may”, she met one or both of the either/or limbs of descriptor 3b regardless of problems with her eczema.  To get any more points than that she would need to establish that the application of the preparation concerned constituted “therapy” so that she could be said to “need… assistance to be able to manage therapy” within descriptor 3c (descriptors d, e and f are similarly structured).

7. There are a number of relevant definitions in Part 1 of Schedule 1 of the PIP Regulations:

“Medication” means medication to be taken at home which is prescribed or recommended by a registered –

(a) doctor;

(b) nurse; or

(c) pharmacist.

“Therapy” means therapy to be undertaken at home which is prescribed or recommended by a –

(a) registered –

(i) doctor;

(ii) nurse;

(iii) pharmacist; or

(b) health professional regulated by the Health Professions Council.

“Manage medication or therapy” means take medication or undertake therapy, where a failure to do so is likely to result in deterioration to a claimant’s health.

8. The central point at issue is whether, as the Secretary of State submits, the activity attempts to distinguish between on the one hand those who are treated with medication (as defined) and those who are treated with something other than medication. The claimant’s representative submits that while medication and therapy are defined differently, they do not exclude each other.  Some forms of therapy may involve the taking of medication.  The reason for separating out the terms in activity 3 was to underline the timescale of assistance/supervision invoked in those activities.  Therapy is typically a complex activity usually requiring assistance for at least 3.5 hours a week, whereas managing medication or monitoring a health condition may only include helping to sort out  medication, for instance by putting tablets into a dosette box once a week.

9. I do not entirely accept either of these submissions.  Supervision or prompting to manage medication, for instance in the case of someone whose mental capacity is impaired, might require a good deal more than sorting out a dosette box once weekly.  Conversely, while from the structures of the descriptors it is clear that some therapies are envisaged to be extremely time-consuming, it follows from descriptor 3c that they need not always be.  However, I consider the representative is right in her submission that there is no exclusive boundary.

10. According to its website http://www.hcpc-uk.co.uk/aboutus/ (accessed 9.11.15), the Health Professions Council regulates arts therapists, biomedical scientists, chiropodists / podiatrists, clinical scientists, dietitians, hearing aid dispensers, occupational therapists, operating department practitioners, orthoptists, paramedics, physiotherapists, practitioner psychologists, prosthetists / orthotists, radiographers, social workers in England and speech and language therapists.  Because of the terms of the definition set out in [7], members of this group are in a position to prescribe or recommend “therapy” which will count for PIP purposes but not “medication”.  I do not have the knowledge of these various professions to know whether what each may prescribe or recommend may extend to the application of creams, but it seems entirely possible to me that some of them might.

11.The Secretary of State invites me to look at the definitions in the Oxford English Dictionary (Second Edition, Revised 2005) in which medication is defined as “a drug or other form of medicine that is used to treat or prevent disease”, while therapy is “treatment intended to relieve or heal a disorder”.

12. It seems to me that this only serves to illustrate how the application of emollient cream could potentially fall within either category.

13.These matters suggest that the boundary is not a hard-edged one: a parallel is to be found in the law relating to special educational needs where whether something is educational or non-educational provision is, in general, a matter for the specialist tribunal of fact, and there is a “shared territory” of provision (see London Borough of Bromley v Special Educational Needs Tribunal [1999] ELR 260 at 295).

14. This is therefore not a matter on which I consider there is much guidance on the law that the Upper Tribunal can usefully provide. The First-tier Tribunal, with the composition to which I have earlier alluded, is far better placed to consider the statutory wording, including the definitions set out above, and to decide whether a particular treatment falls within either definition and if so, which.  If they address the point, and their decision is appropriately reasoned, I consider it unlikely that an appellate court or tribunal would seek to interfere with the categorisation by the specialist tribunal.

15. In the present case, the First-tier Tribunal did not engage with the issue of the emollient cream at all.  Thereby it was potentially in error of law.  For the reasons given, I am unable to accept the rigid categorisation suggested by the Secretary of State and thus I cannot say that the tribunal’s error was not material.  That therefore provides sufficient grounds to set the tribunal’s decision aside.  Whether it was material or not will be determined by the conclusion reached by the new tribunal on the point.

16. It is not necessary to analyse points (ii) to (v) in depth. The errors which it is common ground were made will be subsumed by the rehearing.  The next tribunal will be assisted if it has among its papers copies of the submission by the Secretary of State dated 23 July 2015 and that on behalf of the claimant dated 24 August 2015.

17. I direct that the tribunal must conduct a complete rehearing 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.  While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against  – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

18. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

CG Ward

Judge of the Upper Tribunal

9 November 2015