Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CPIP/2054/2015

ADMINISTRATIVE APPEALS CHAMBER

 

Before: M R Hemingway: Judge of the Upper Tribunal

 

Decision: The decision of the First‑tier Tribunal sitting at Sheffield on 11 March 2015 under reference SC950/14/01130 involved an error of law and is set aside.

 

The appeal is remitted for determination at an oral hearing before a completely differently constituted tribunal.

 

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 shall be an oral hearing.

 

(2) The appellant is reminded that the new tribunal can only deal with her situation as it was down to 2 August 2014 (the date of the original decision of the Secretary of State under appeal) and cannot deal with any changes after that date. 

 

(3) The new tribunal 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. 

 

 

REASONS FOR DECISION

 

The decision in summary

 

1. This is the appellant’s appeal to the Upper Tribunal against the decision of the First‑tier Tribunal (Ft‑T) dated 11 March 2015.  My decision is that the F‑tT’s decision involved an error of law.  I allow the appeal to the Upper Tribunal and set aside the F‑tT’s decision.  The appeal against the Secretary of State’s decision dated 2 August 2014 will have to be re-heard by a new tribunal.

 

The issue raised by this appeal

 

2. The principal issue raised by this appeal is how decision makers and tribunals are to approach a case where a claimant is unable to perform a task specified in a descriptor contained within Part 2 or Part 3 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 for part of each day but not the whole of each day. 

 

3. The issue is mainly relevant, on the facts of this case, to the activities of “Planning and following journeys” (activity 1 under Part 3), and “Reading and understanding signs, symbols and words” (activity 8 under Part 2).

 

The background and the evidence

 

4. The appellant, now aged 35 years, made a claim for a personal independence payment on 21 January 2014.  In so doing, she explained that she suffered from depression, anxiety and optic atrophy.  The latter is a condition which impacts adversely upon the quality of a person’s eyesight though the effects can range quite widely from a relatively small change to severe visual loss.  The appellant is, unfortunately, towards the latter end of that spectrum. 

 

5. When she completed the standard form PIP2 (a form filled in as part of the process of claiming) she said that the problems with her sight caused her to have difficulties when cooking, when reading and writing and when travelling out‑of‑doors.  Having completed the form she then attended, on 23 June 2014, a face to face assessment with a healthcare professional and a report was produced.  According to the healthcare professional, she indicated during the assessment that she would sometimes struggle when reading in the dark, that her vision was affected more at night‑time than it was during the day and that she did not usually go out alone at night.  It was noted, though, that she was employed by a care home and that she was able to read and manage care plans at work “with no issues”.  It was also noted by the healthcare professional that whilst the appellant had poor peripheral vision in her left eye, she “had a good functional range in her right eye”.  The healthcare professional’s opinion was that she would not have any difficulties with respect to the two activities referred to above as a result of her limited sight.

 

6. On 2 August 2014, the respondent, seemingly in reliance on the conclusions contained within the healthcare professionals report, decided that the appellant did not score any points at all under any of the activities and descriptors relevant to entitlement to a personal independence payment such that there was no entitlement. She subsequently wrote quite a lengthy letter of 19 August 2014.  In that she said, amongst other things, that she had “50% of visual fields in my right eye and none in my left”, that her optician’s records would show this, that she had been registered as being sight impaired which could only be done in respect of persons who have significant loss of visual fields in both eyes, that her visual acuity in her right eye was 6/9 and that her vision varies in different light and is very limited in poor light and virtually non‑existent in darkness.  That, though, did not persuade the respondent to alter the decision by way of the mandatory reconsideration process.  So, the appellant appealed to the F-tT.

 

7. In a letter of 5 February 2015, written for the purposes of her appeal, the appellant said that she is able to read small print but that print “needs to be clear and the contrast has to be very good and the lighting”.  She said that she uses what she described as “a special lamp” when reading in artificial light and that that lamp had been issued to her by “the sensory team”.  She added that her reading speed is very slow.  She stated that she would never go anywhere unfamiliar when alone and reiterated that her vision is extremely poor when it is dark.  If she had to go anywhere in the dark, and there was no‑one to assist her, she would take a taxi.  She also provided some documentary evidence regarding her sight.  This included a certificate demonstrating she had been registered as a sight impaired person on 14 November 2013 and had then been registered as a severely sight impaired person on 5 September 2014.  The latter certificate confirmed the visual acuity in her right eye (her best eye) as being 6/9 and that she had total loss of visual field.  It also said that her sight would vary markedly in different light levels.  A sensory disability assessment carried out by the Adult Social Care Department of Hull City Council also recorded her as having only residual peripheral vision on the right side, none on the left and referred to a number of consequential difficulties she experienced with day to day living.

 

The legislation

 

8. Personal Independence Payments were introduced by the Welfare Reform Act 2012.  There are two components being the daily living component and the mobility component.  This case concerns both.  They are provided for in section 77 and section 78 of the Act.  The various activities and descriptors appear at Part 2 (daily living component) and Part 3 (mobility component) of Schedule 1 to the 2013 Regulations.  Regulation 4 indicates that where a claimant’s ability to carry out an activity is assessed, that has to be on the basis of an ability to carry out the activity safely, to an acceptable standard, repeatedly and within a reasonable time period.  There are then specific definitions in regulation 4(4) for the terms “safely”,“repeatedly”, and “reasonable time period”.  It is worth noting, in particular, that repeatedly “means as often as the activity being assessed is reasonably required to be completed”. Regulation 7 deals with an aspect of variability and lays down a general rule that a claimant will satisfy a point scoring descriptor if his inability to perform the relevant task in question exists for more than 50% of the days of the assessment period. 

 

The First‑tier Tribunal’s decision

 

9. As mentioned above, the original decision maker had decided that the appellant scored no points with respect to the daily living activities and no points with respect to the mobility activities either.  The appellant, albeit that this might not have been the wisest choice, had asked for the appeal to be decided on the papers.  The respondent had not sought a hearing either.  The F‑tT decided, in the circumstances, it could proceed without a hearing and explained its decision to do that in this way:

 

“ 2. [The appellant] elected not to attend an oral hearing.  The Tribunal considered Procedure Rules 31 and 32 and decide there was sufficient information in the bundle of documents No‑1‑152 to proceed.”

 

10. The F‑tT found that the appellant did suffer from optic atrophy.  It found that 9as at the decision date) she was registered as being partially sighted.  It noted that she was taking escitalopram, which is an antidepressant, but did not subsequently say anything more about anxiety or depression.  It did not actually make a clear finding as to whether or not she suffered from anxiety and depression at all though its noting of the medication, without a suggestion that it had not been inappropriately prescribed, might suggest it did accept it.  It then went on to specifically address the various activities and descriptors which the appellant had placed in issue at various times during the dispute process..  Picking some of those out, it said with respect to preparing food:

 

“ 8. Preparing food – [the appellant] stated that she can prepare vegetables but found it easier to use prepared ones.  She is able to cook however she can struggle with reading instructions and checking food is cooked.  This was easier in the daylight or with her special lamp.  The Tribunal decided that she could score some points under this Activity and awarded her 1 B 2 points.”

 

11. As to reading and understanding signs, symbols and words, it said this:

 

“ 11. Reading and understanding signs, symbols and words – she is able to read care plans at work, she has a mobile phone which she can use.  She needs a light to assist her reading for pleasure when it gets dark but other than that she can manage on a day‑to‑day basis.  The Tribunal did not consider that the use of the light at night only, qualified her for points under this descriptor.  She can manage through the day for example at work or using her phone.  The need for the light at the time of the decision was not for the majority of the time and so did not score her any points under this activity.”

 

12. As to engaging with other people face‑to‑face, it said this:

 

“ 12. Engaging with others – she is able to work in a care home engage with the residents, other staff and visitors.  She is able to meet with her family.  She can go to the shops, answer her phone and has friends.  The Tribunal did not find that she scored any points under this activity.”

 

13. As to planning and following journeys, it said this:

 

“ 14. Planning and following journeys – she is able to get to places by foot or public transport, she often chooses to use taxis if she is not sure of where she is going or if it is dark, as her vision is worse then.  The Tribunal did not see that she scored any points under this activity.”

 

14. The F‑tT decided that she scored 2 points in relation to the daily living component (the points it awarded for preparing food) and no points in relation to the mobility component.  It followed that she did not reach the 8 point threshold for the standard rate of either component or the 12 point threshold for the enhanced rate of either component of personal independence payment.  Her appeal was dismissed.

 

The appeal to the Upper Tribunal

 

15. I granted permission to appeal because I thought it arguable that the F‑tT had erred in law in failing to adequately explain a number of its conclusions and in failing to adequately consider what approach it should take in circumstances where the evidence pointed to an inability to carry out an activity for only part of a day.

 

16. Ms S Pepper, who now acts on behalf of the Secretary of State in this appeal to the Upper Tribunal, has produced a helpful written response to the grant of permission. She supports the appeal, urges me to set the F‑tT’s decision aside and asks me to remit the appeal for rehearing by a differently constituted First‑tier Tribunal.

 

17. As to the question of how fluctuations within a single day are to be dealt with, she referred to the Government’s response to the consultation on the Personal Independence Payment assessment criteria and regulations of 13 December 2012.  She noted it was stated therein that:

 

“ 4.15  … if a descriptor applies at any point during a 24 Hr period, it should be considered as applying on that day.”

 

 

18. She accepted, in effect, that that was the approach which initial decision makers and tribunals should take, with only two qualifications, being that an inability to perform a task or function within a descriptor had to be a direct consequence of a claimant’s physical or mental condition and that the de minimis principle would apply.  Further, she said that if an activity cannot be undertaken for a part of a day that would also mean it could not be undertaken “repeatedly” for the purposes of regulation 4(2A)(b).  That was not the approach which the F‑tT had taken.  The F-tT should, though, said Ms Pepper, have made findings of fact, in the context of the activity of Planning and following journeys, regarding the claimant’s visual difficulties throughout a 24 hour period forming a single typical day, including findings as to matters such as what time of day she would have to travel to and from work, whether the route she took to and from work would be lit and what difficulties she might experience in undertaking such journeys which may compromise her safety.

 

19. The appellant, in her submission, provided up‑to‑date information regarding her work patterns, the times and the frequency with which she would undertake journeys.  She reiterated that she uses a lamp to aid with reading in poor lighting and that her reading speed is much slower than a person with normal vision.

 

20. Neither party requested an oral hearing before the Upper Tribunal.

 

Discussion

 

21. There does not appear to be anything in the Social Security (Personal Independence Payment) Regulations 2013 which directly addresses the question of how claimants who are capable of performing activities for part of a single day but not all of a single day are to be treated.  Variability from one day to another is dealt with in regulation 7 but, as Ms Pepper acknowledges, that regulation does not assist with respect to variation during the course of a single day.  There is, though, the definition of “repeatedly”.

 

22. Ms Pepper has referred to the Government’s response of 13 December 2012 (see above).  I have read the relevant parts.  Under the heading “fluctuations in disabilities and their impact” it is said:

 

“ 4.15 From the earliest design of the assessment we have worked to ensure that it takes account of health conditions and disabilities that have fluctuating symptoms or impacts.  Our proposal was that a descriptor will apply if the impact of a health condition or impairment is experienced on the ‘majority of days’ over a 12 month period.  If a descriptor applies at any point during a 24 Hr period, it should be considered as applying on that day.  For example, if a descriptor applies to an individual on an average of four days out of seven, throughout the course of a year, they would satisfy the descriptor.  However, if the descriptor applied to an individual on two days out of seven throughout the course of a year, they would not satisfy the descriptor. 

 

4.16 While it may seem that this ‘50% rule’ sets a high threshold, we consider that it is in fact a more generous provision than currently exists in DLA – the PIP assessment considers the impact experienced on the majority of days rather than the ‘majority of the time’ as in DLA.  This means that if a descriptor applies at any point during a 24 Hr period, it is considered to apply for the entire day, whereas in DLA it would have to apply for the ‘majority of the day’ in order to apply.  In addition, the PIP assessment allows descriptors to be combined to meet the 50% rule, as a result of this we believe that 50% of days is a reasonable threshold to consider.”

 

23. That section is devoted, in part, to variation from one day to another as opposed to variation within a single day but it does clearly state, once in each paragraph, that if a descriptor applies at any point during a 24 hour period it is considered as applying on that particular day.

 

24. The approach set out in the Government response has also found its way into the PIP Assessment Guide issued by the Department for Work and Pensions and described as “a DWP guidance document for providers carrying out assessments for Personal Independence Payment”.  That document was last updated on 28 July 2015.  Under the heading “Time periods fluctuations and descriptor choices” is to be found this paragraph:

 

“ 3.2.10. A scoring descriptor can apply to claimants in an activity where their impairment(s) affects their ability to complete an activity, at some stage of the day, on more than 50% of the days in the 12 month period.”

 

25. There later follows this passage under the same heading:

 

“ 3.2.12. The timing of the activity should be considered, and whether the claimant can carry out the activity when they need to do it.  For example if the taking medication in the morning (such as painkillers) allows the individual to carry out activities reliably when they need to throughout the day, although they would be unable to carry out the activity for part of the day (i.e. before they take the painkillers), the individual can still complete the activity reliably when required and therefore should receive the appropriate descriptor.”

 

26. The latter paragraph does, in fact, appear to contemplate the possibility that a claimant might be unable to perform a task or function for part of a day yet still not be awarded any points which might be thought, to some extent, to be at odds with what is said in the Government response.  Nevertheless, what is said there about medication does appear to be perfectly logical.

 

27. Perhaps the first matter to address is whether or not any of this material is relevant to the interpretation of the legislation and, hence, the approach to be taken.  The PIP Assessment Guide is of persuasive value only as has been acknowledged by the Upper Tribunal more than once but, perhaps most recently, in GW v The Secretary of  State for Work and Pensions [2015] UKUT  0570 (AAC).  The Government response cannot be regarded as binding either but it is of some force in demonstrating the legislative intention as Ms Pepper effectively acknowledges by quoting from it and relying on it. 

 

28. Most obviously it can be said, at this stage, given the approach taken in the Government response, that the so‑called “50% rule” contained within regulation 7 has no application in the context of fluctuations during a day.  Put another way, it is not the case that if a claimant can, for example, prepare and cook a simple meal unaided for 51% of the time in a single day, but for the rest of the time would need an aid or appliance to do so, he will score no points. In that situation he would, in fact, score 2 under descriptor 1(b) in Part 2.  Nor, indeed, is the approach taken in Secretary of State for Work and Pensions v Moyna R(DLA) 6/03 to be applied during the course of  such a 24 hour period.  

 

29. So, the question arises as to whether it is simply the case that, as the Government response suggests, if a descriptor applies at any point during a 24 hour period then points are scored or whether the position is more nuanced.

 

30. I would certainly accept Ms Pepper’s contention that if a descriptor does apply at any point during a 24 hour period that must be a direct consequence of a claimant’s physical or mental condition.  That follows logically from the wording of section 78(1)(a) and section 79(1)(b) of the Welfare Reform Act 2012.  Ms Pepper also submits that the de minimis principle applies.  Put simply, that is a legal doctrine by which a court refuses to consider a trifling or trivial matter.  So, if that argument is right, then a brief or momentary inability to perform a task within a 24 hour period will not mean that a descriptor relevant to that task will be satisfied for the relevant day.

 

31. Clearly Ms Pepper’s contention, in this regard, is an entirely sensible and logical one.  A personal independence payment is designed, in broad terms, as is disability living allowance which it is replacing, to assist persons who are disabled mentally or physically to lead a normal life and to get about.  It would be inconsistent with that legislative approach and intention if a claimant who was incapable of performing a task or function for only a fleeting or trivial period to be able to satisfy one or more of the descriptors for that reason.

 

32. Following the above reasoning, therefore, it seems to me that for a descriptor to apply, on a given day, then the inability to perform the task or function must be of some significance, that is to say something which is more than trifling or, put another way, something which has some tangible impact upon a claimant’s activity and functioning during a day but not more than that.  So, by way of illustration, to use the example given in the PIP Assessment Guide, if a person were to take his painkilling medication at the start of the day and it was to take effect quickly, so that his normal daily routine would not be inhibited in any way, then the relevant descriptors, in this context perhaps those relating to functions such as dressing, washing and toileting, would not be satisfied such that no points would be scored. If, however, the medication did not start to work for a period such as to delay his going about his daily business then it would be satisfied. Such a claimant, having taken his medication, could not be expected to await embarking upon his washing, dressing and toileting for a significant period for his medication to take effect.  This, again, would seem to be in accordance with the overall legislative intention and seems to me to be consistent with the Government’s response.

 

33. It may be, though, that with respect to at least some of the descriptors there will be a little more to consider.  With respect to matters such as washing, dressing and toileting these are functions which, in general, will obviously need to be performed at some point during each 24 hour period.  The position with respect to venturing out‑of‑doors, for example, might be somewhat different.  A person might, for example, simply have a lifestyle as a matter of choice not linked to disability which does not involve venturing out‑of‑doors during periods of dusk or darkness at all.  So, in such a case, there may have to be a factual enquiry as to whether it is the disabilities or something else which is preventing such an activity.  That is probably why Ms Pepper suggests, in this case, that there will need to be findings about the journeys the appellant embarks upon to and from work.  However, it seems to me that detailed inquiries of that nature would be rare. Many people may tend to venture out‑of‑doors during the hours of daylight more than during the hours of darkness.  Nevertheless, there are many reasons why a person might want to venture out after dark perhaps, dependent upon taste, to attend night school classes, or to visit the theatre, restaurants or perhaps even public houses.  These activities might not be pursued every day and might indeed be pursued only rarely but if a person is effectively debarred from following the route of an unfamiliar journey or a familiar one without another person, an assistance dog or an orientation aid, which is in part what this appellant is contending, during the hours of dusk or darkness, then that person would not have to show, for the descriptor to be satisfied, that they would wish to undertake such a journey every day or anything like that but would only have to show that the particular disability which impacts upon them is sufficient to mean that that option is not, without the necessary assistance, available to them such that their lifestyle is restricted to more than a trivial extent.

 

34. The key to all of this is the definition of repeatedly.  In the examples above, it cannot properly be said that a claimant is able to wash, dress and attend to his or her toileting as often as the relevant activities are reasonably required to be completed if he or she is obliged to wait for a disruptive period of time until painkillers take effect.  It cannot properly be said that a claimant is able to follow the route of a journey repeatedly if he or she cannot do so for a part of each day such that the claimant is obliged to live a restricted lifestyle.

 

35. In applying all of this to the way the F‑tT approached matters, therefore, it is apparent, from what it said at paragraph 14 of its statement of reasons, that it, at least, contemplated the possibility that the appellant would require another person, assistance dog or orientation aid when it is dark, although not when it is light, but that such would not lead to the satisfaction of any potentially relevant descriptor such as descriptor 1(d) or 1(f) under the heading Mobility Activities within Part 3.  At least that seems to be the implication of what it was saying. Its approach, therefore, in my judgment, was wrong.  It was required to make a clear finding, on the evidence, as to whether or not the appellant was unable to follow a route of an unfamiliar or a familiar journey without assistance, even if only for the part of the day when it was dark and, if so, whether, adopting the above approach, one or other of those descriptors were met. It could not simply conclude, as it seems to have done, that because she could undertake journeys during the day the potentially relevant descriptors were not met. 

 

36. Similarly, as to activity 8 within Part 2, (Reading and understanding science, symbols and words) the F‑tT had decided that she did need a light to assist her reading when it was dark, which may have represented an acceptance of her written evidence that she needed what she had referred to as a “special lamp” when so doing.  The F‑tT said it did not consider that the use of the “light” (probably a reference to the special lamp) at night only would qualify her for points under the relevant descriptors and went on to add that she could manage through the day.  It then said that the need for the light was not for the majority of the time.  Again, in view of what I have said above, that represented the wrong approach.  It could not conclude that none of the potentially applicable descriptors under the activity were met simply because there was only a difficulty for part of the day.  All it had to be satisfied of was that at some point in a day, and for a period which was something more than trifling such that it had some degree of impact upon the appellant, she was unable to perform the relevant task.

 

37. The F‑tT’s approach, therefore, with respect to the question of whether a descriptor would apply for a particular day if there was an inability to perform the relevant function for only part of that day was flawed.  Its decision must, consequently, be set aside. 

 

38. It seems to me that the F‑tT did make some further errors but, since I have decided its decision must be set aside anyway, I will only touch upon some of those briefly.  First of all, it did not sufficiently explain its conclusion regarding the activity of “Preparing food” and its associated descriptors.  It awarded points on the basis that the appellant needs to use an aid or appliance to be able to either prepare or cook a simple meal.  That seems to have been on the basis that she required the “special lamp” to aid with functions such as reading instructions and checking food.  That might well prove to be the most appropriate descriptor and I would certainly not quibble with the apparent acceptance that the “special lamp” was an aid or appliance as defined within Schedule 1, Part 1.  However as Ms Pepper points out in her submission, the appellant had said that she receives help from her husband who, amongst other things, checks pans for boiling over and checks whether the gas has been properly lit.  Given that if those functions are not properly performed it might comprise the appellant’s safety, it seems to me that the F‑tT had to form a view about that and ought, therefore, to have considered the possible application of descriptor 1(e) within Part 2 on the basis that there might be a need for supervision or assistance to prepare or cook a simple meal.  Had that descriptor been satisfied the F‑tT would have awarded 4 points rather than the 2 it did award.  As to the lamp, the F-tT omitted to consider whether it was an aid or appliance for the purposes of reading such as to mean descriptor 8(b) was met. Further, there is nothing contained within the F‑tT’s statement of reasons to indicate that, when considering which descriptors might apply, it had regard to the content of regulation 4(2A) of the Regulations.  As is well known it is stated, therein, that when assessing a claimant’s ability to carry out an activity that claimant is to be assessed as satisfying a descriptor only if he or she can do so safely, to an acceptable standard, repeatedly and within a reasonable time period.  Such might, on the facts of this case, for example, have been relevant to the descriptors relating to preparing food and those relating to planning and following journeys, given the appellant’s written evidence with respect to the former that her husband would ensure the gas had been properly lit and would watch pans for boiling and given her indication that in periods when it is dark she might, in particular, be at risk of misjudging such as steps and kerbs which might, of course, lead to falls. 

 

39. In light of the above, therefore, I do set this decision aside.  My having done so there are fresh findings of fact to be made and I agree with Ms Pepper’s suggestion, not opposed by the appellant, that the proper course of action would be to remit to a new and entirely differently constituted F‑tT for the decision to be remade.

 

What happens next?

 

40. There will, therefore, have to be a fresh hearing before a new F‑tT.  That will be a complete rehearing and the new F‑tT will have to consider all of the evidence before it, including any new oral or written evidence it may receive, make its own factual findings and reach its own conclusions stemming from them.  As to the approach to be taken where a descriptor is satisfied for only a portion of a day, but satisfied for each day, so long as the F‑tT finds that to be the case on the basis of its findings, it should apply the approach set out above and apply regulation 4(2A). 

 

41. The appellant will note that I have directed an oral hearing.  I appreciate that she did not seek one previously.  However, I have so directed in order to afford her the opportunity of attending before the new F‑tT and explaining how she feels her difficulties impact upon her on a daily basis.  This will also afford the new F‑tT what may well prove to be a valuable opportunity to ask her questions and clarify any matters with her.  She does not have to attend but may reasonably feel it is in her interests to do so.

 

Conclusion

 

42. This appeal to the Upper Tribunal is, therefore, allowed on the basis and to the extent explained above.

 

 

(Signed on the original) 

 

 

M R Hemingway

Judge of the Upper Tribunal

 

Dated: 13 November 2015