Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

 

As the decision of the First-tier Tribunal (made on 22 May 2014 at Fox Court under reference SC242/13/20115) 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.

DIRECTIONS:

A.        The 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.

B.        In particular, the tribunal must investigate and decide the claimant’s entitlement to a personal independence payment on his claim that was made on 18 June 2013 and refused on 17 October 2013.

C.        In doing so, the tribunal must not take account of circumstances that were not obtaining at that time: 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: R(DLA) 2 and 3/01.

Reasons for Decision

A.        Introduction

1.         The claimant made a claim for a personal independence payment on 18 June 2013. The Secretary of State refused his claim on 17 October 2013. On appeal, the First-tier Tribunal awarded the claimant a personal independence payment consisting of the daily living component and the mobility component, both at the enhanced rate from and including 18 June 2013. The presiding judge gave the Secretary of State permission to appeal to the Upper Tribunal. The claimant’s representative has responded, resisting the appeal. The Secretary of State has not replied.

A.        Activity 3

2.         The main issues on the appeal concern the First-tier Tribunal’s application and interpretation of Activity 3 in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (SI No 377):

 

Activity	Descriptors	Points
3. Managing therapy or monitoring a health condition.	a. Either- (i) does not receive medication or therapy or need to monitor a health condition; or (ii) can manage medication or therapy or monitor a health condition unaided.	0
	b. Needs either- (i) to use an aid or appliance to be able to manage medication; or (ii) supervision, prompting or assistance to be able to manage medication or monitor a health condition.	1
	c. Needs supervision, prompting or assistance to be able to manage therapy that takes no more than 3.5 hours a week.	2
	d. Needs supervision, prompting or assistance to be able to manage therapy that takes more than 3.5 but no more than 7 hours a week.	4
	e. Needs supervision, prompting or assistance to be able to manage therapy that takes more than 7 but no more than 14 hours a week.	6
	f. Needs supervision, prompting or assistance to be able to manage therapy that takes more than 14 hours a week.	8

 

3.         I can deal with this case more shortly than otherwise, as I have recently dealt with similar issues in CPIP/1882/2015.

B.        The tribunal’s findings and reasoning on Activity 3

4.         The tribunal found that descriptor f applied.

5.         On the decision notice, the tribunal recorded as a summary of its reasons:

The Health Care Professional has completely failed to understand the condition, angiooedema, from which the [the claimant] suffers, the life-threatening risk to which that condition gives rise and the level of supervision reasonably required to keep [him] alive.

6.         Based on the claimant’s evidence, supported by hospital evidence, the tribunal found that the claimant had been admitted to hospital about 150 times in 2012 and about 100 times in 2013. By the hearing on 22 May 2014, he had been admitted 47 that year.

7.         The tribunal explained the claimant’s condition and its effects:

Angioedema is a swelling of the deeper layers of the skin. In [the claimant’s] case it is associated with laryngeal spasm. What happens is that the tissues of [his] throat swell up and cut off the air supply to his lungs causing him to pass out. When he gets a warning that this is going to happen, he can use his epipen to administer adrenaline which helps but he also needs medical assistance. Often he gets no warning and simply passes out, in which case it is obviously not possible for him to administer his own medicine.

8.         In support of its conclusion on Activity 3, the tribunal wrote:

There being no doubt that it has been recommended by a registered doctor, we consider that the administration of adrenaline on an emergency basis by another person amounts to ‘therapy’ as so defined. It follows from our approach that [the claimant] needs supervision (defined as set out in paragraph 8 above] to manage that therapy. As such supervision takes more than 14 hours a week (because it is reasonably required the whole time), [he] scores 8 points for Descriptor 3f.

C.        The Secretary of State’s appeal

9.         The Secretary of State submitted that the tribunal had made an error of law in the final two sentences of the passage I have just quoted. The tribunal had taken account of time devoted to supervision in order to deal with the risk of the claimant’s condition. That was wrong, because descriptors c to f only applied to managing therapy. The claimant needed assistance to manage his therapy, but not supervision to do so ‘the whole time’.

10.      The Secretary of State also submitted that only therapy undertaken at home could be counted, not therapy administered by medical professionals during hospital admissions.

11.      The judge gave permission to appeal. On the ‘supervision’ issue, the judge identified the issues:

In particular, there are issues whether:

(i) the phrase ‘that takes more than 14 hours a week’ in Descriptor 3(f) (one of the descriptors that the Tribunal awarded) refers back to the word ‘supervision’ or to the word ‘therapy’; and

(ii) whether a person who is monitoring the condition of another and ready to intervene and administer therapy when required is supervising during the monitoring stage. It is noted that the descriptor distinguishes between ‘supervision’ and ‘assistance’.

More generally, there is an issue whether a person who – as we held to the case with [the claimant] - cannot do anything safely without supervision, scores points for supervision descriptors where the activity does not present a greater risk to that person than he is under while doing nothing. This is relevant in particular to our award of descriptor (f) for the activity, planning and following journeys and, perhaps, the activity of preparing food.

12.      On the ‘at home’ issue, the judge wrote that he agreed with the Secretary of State, but that the tribunal had not taken account of therapy administered in hospital. The tribunal’s reference to this had been by way of giving the complete picture of the claimant’s condition and treatment.

D.       The ‘supervision’ issue

13.      The judge identified two issues with supervision.

14.      I dealt with the first issue in CPIP/1882/2015 at [42] to [44]. The time periods in descriptors c to f qualify ‘supervision, prompting or assistance’, not ‘therapy’. I followed two decisions of other judges to the same effect. Neither had been given at the time of the hearing before the First-tier Tribunal in this case. I also added some reasons of my own:

44. I agree with those conclusions. They represent a rational interpretation of the descriptors. In some cases, it will not make any difference, as the supervision or assistance will be provided for the whole of the time that the therapy is undertaken. In other cases, it will only be needed for part of the time, most likely at the start and at the finish of the therapy. In the latter case, it may take only a few minutes, while the therapy may last several hours. The whole structure of the activities and their individual descriptors is based on the nature and extent of the help that the claimant needs. In that context, it is more rational if the number of points is determined by reference to the help needed rather than the therapy for which the help is given.

15.      As to the second issue identified by the judge, following my approach in CPIP/1882/2015 supervision monitoring the claimant’s condition in case of an attack and before any therapy is administered is not within descriptors c to f at all. It can only score points under descriptor b. Until there is therapy, there can be no supervision to manage it. I agree with the judge that descriptors c to f distinguish between supervision and assistance, but both only relate to managing therapy. ‘Supervision, prompting or assistance’ comes as a package, which relates as a whole to managing therapy. It is not only assistance that qualifies managing therapy, with supervision and prompting being freestanding requirements.

E.        The ‘at home’ issue

16.      I accept the Secretary of State’s argument that therapy delivered at a hospital by medical professionals does not count for the purposes of Activity 3. Only therapy delivered at home counts. That is clear from the definition in paragraph 1 of Schedule 1 to the 2013 Regulations:

‘therapy’ means therapy to be undertaken at home which is prescribed or recommended by a -

(a) registered-

(i) doctor;

(ii) nurse; or

(iii) pharmacist; or

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

I identified some of the problems with interpreting ‘at home’ in CPIP/1882/2015 at [50]-[54].

17.      However, I agree with what the judge said. The tribunal did not make the mistake identified by the Secretary of State for the reasons explained by the judge.

F.        The ‘risk’ issue

18.      As I understand it, the judge is asking whether the risk that can be taken into account for preparing food or planning and following a journey must be a risk specifically related to that activity. The answer is: no. A risk that gives rise to a need for supervision need not be a risk that is unique to a particular activity or to the activities in Schedule 1 generally. It is sufficient if it is a general risk, even one that applies when the claimant is doing nothing, provided that the requirements of a particular descriptor are satisfied.

19.      Take preparing food, Activity 1. The tribunal found that the claimant satisfied descriptor e, which carries 4 points:

Needs supervision or assistance to either prepare or cook a simple meal.

The issue for the tribunal was whether the claimant had a need for supervision when cooking. If he did, it did not matter whether that need was specifically related to that activity or was a general one that would affect other activities and even exist when the claimant was doing nothing at all. The descriptor was satisfied. This is so whether the other activities affected are within the scope of personal independence payment or not. Many conditions have an effect beyond the particular activities in Schedule 1 and, perhaps, generally. It would be anomalous to exclude them from the scope of personal independence payment.

20.      The same applies for all activities, including planning and following journeys.

G.       Disposal

21.      The tribunal misdirected itself in law in a way that may have affected the outcome of the appeal, so I must set its decision aside. I would have no difficulty finding, on the evidence in the papers, that the claimant satisfied descriptor 3b(ii). That carries only 1 point, which would prevent any award being made of the daily living component. I am not confident of making findings on the application of descriptors c to f. That is why I have directed a rehearing so that the tribunal can investigate in detail whether any of them apply.

 

Signed on original on 9 December 2015

Edward Jacobs Upper Tribunal Judge