FD-v-Department for Communities (PIP) [2018] NICom 24

Decision No:  C3/17-18(PIP)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

PERSONAL INDEPENDENCE PAYMENT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 28 March 2017

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 28 March 2017 is not in error of law. Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to Personal Independence Payment (PIP) from and including 11 July 2016 is confirmed.

	Background

2.	On 19 September 2016 a decision maker of the Department decided that the appellant was not entitled to PIP from and including 11 July 2016. Following a request to that effect, the decision dated 19 September 2016 was reconsidered on 4 November 2016 but was not changed.  An appeal against the decision dated 19 September 2016 was received in the Department on 29 November 2016.  

3.	The appeal tribunal hearing took place on 28 March 2017. The appellant was present and was represented.  There was no Departmental Presenting Officer present.  The appeal tribunal disallowed the appeal and confirmed the decision dated 19 September 2016.

4.	On 12 June 2017 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 26 June 2017 the application for leave to appeal was refused by the Legally Qualified Panel Member.

	Proceedings before the Social Security Commissioner

5.	On 5 July 2017 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 25 July 2017 observations on the application for leave to appeal were requested from Decision Making Services (DMS).  In written observations dated 17 August 2017, Mr Donnelly, for DMS, opposed the application for leave to appeal. The written observations were shared with the appellant and her representative on 21 August 2017.  There has been no further response from the appellant or her representative.

6.	On 31 January 2018 I granted leave to appeal. When granting leave to appeal I gave, as a reason, that it was arguable that the appeal tribunal failed to consider the assistance required by the appellant in relation to accessing her medication.  On the same date I determined that an oral hearing of the appeal would not be required.

	Errors of law

7.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.  What is an error of law?

8.	In R(I)2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

“		(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

		(ii)	failing to give reasons or any adequate reasons for findings on material matters;

		(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;

		(iv)	giving weight to immaterial matters;

		(v)	making a material misdirection of law on any material matter;

		(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

	Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.” 

	The submissions of the parties

9.	In the application for leave to appeal the following submissions were made on behalf of the appellant:

		(i) The tribunal failed to consider the appellant’s ability to prepare or cook a meal safely and in a reasonable manner.  

		(ii) The tribunal failed to consider the assistance needed in regard to accessing her medication.

		(iii) The tribunal failed to consider the appellant’s ability to engage with other people – her engagement with colleagues is normally via email and not very often.

	In his detailed written observations on the application for leave to appeal, Mr Donnelly made the following submissions:

‘1. 	The Tribunal failed to consider the Appellant’s ability to prepare or cook a meal safely and in a reasonable manner

Regulation 4 of the Personal Independence Payment Regulations (Northern Ireland) 2016 (“the PIP Regs”) provides for an assessment of a claimant’s ability to carry out activities and provides insofar as is relevant: 

“4(3) Where C’s ability to carry out an activity is to be assessed, C is to be assessed as satisfying a descriptor only if C can do so-

(a)	Safely

(b)	to an acceptable standard

(c)	repeatedly; and

(d)	within a reasonable time

“(5) In this regulation-
 
“reasonable time period” means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity

“safely” means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity.”

(Regulation 2 of the PIP Regs defines “C” as a person who has made a claim for or, as the case may be, is entitled to personal independence payment.) 
 
Has the tribunal failed to consider (the appellant’s) ability to prepare or cook a meal safely and in a reasonable manner as contended?  I respectfully disagree with this assertion, and submit that actually the Tribunal has fully considered (the appellant’s) ability to prepare food. I refer to the reasons for decision in respect of the daily living component, pages 1-2:

“ ……..The Tribunal also has to assess her ability to carry out the activities referred to, safely, to an acceptable standard, repeatedly and within a reasonable time period. ……”

As can be seen from the above extract the Tribunal has appraised itself on issues that it needs to consider in determining whether or not a claimant can perform the various descriptors associated with each activity.

The tribunal then went on to consider the descriptors associated with the preparation of food, activity 1 of the daily living activities (Part 2 of Schedule 1 of the PIP Regs) and stated: 

“In relation to the activity of preparing food, the Tribunal believed that she could prepare and cook a simple meal herself unaided.  The Tribunal accepted that she had difficulties with her hands and wrists.  The Tribunal noted that she was right handed.  The Tribunal noted that she was able to perform a pincer grip at the medical examination.  The Appellant indicated at hearing that she was able to grip for a short period of time for example 30 seconds and then had to release her grip by reason of swelling in her hands and pins and needles in her hands. She told the Tribunal that she could use a knife and fork and that she was able to put some meat on a pan to cook.  She did not like using her hands for a long time. She would use her hands for about 30 seconds and then rest for a few minutes before commencing again.  The Tribunal noted in her work essentially she used her hands most of the time, she was able to drive her motor vehicle, she was able to put petrol in her vehicle, she was able to use her mobile phone.  On balance, the Tribunal did not believe that she had any difficulty whatsoever preparing food for herself, it accepted that from time to time she would have difficulty with her hands and wrists but that generally and on balance for most of the time she was able to prepare food for herself.”

In the extract above, the Tribunal have clearly shown why it believes (the appellant) is able to prepare and cook a simple meal unaided.  As such, she was not awarded any points for this activity.  While accepting that (the appellant) has some difficulties with her hands and wrists, the Tribunal notes that she is able to use her hands for various tasks, albeit for somewhat shortened periods of time.  However this still led to the conclusion that she would indeed be able to safely prepare a meal in a reasonable manner. 

As such I support the Tribunal’s reasoning, and find no merit in this ground of appeal.

2.	The Tribunal failed to consider the assistance needed in regard to accessing her medication

Ms Williams contends that the Tribunal has failed to consider the assistance that (the appellant) would need with regards to accessing her medication.  (The appellant) had claimed that she takes her medication from a dosette box, which is placed there by her husband as she was unable to open blister packs.  She further stated that she sometimes had issues remembering to take her medication correctly.

Again I would disagree with the contentions in the application for leave to appeal, and submit that the Tribunal has fully considered these issues.  In the reasons for decision the Tribunal has considered the issue of her dexterity in relation to opening blister packs, as well as any lack of cognitive function which may result in a failure to take her medication.  I refer to the reasons for decision in respect of the daily living component, page 2, paragraph 2:

“The Tribunal did not accept this given her daily activities particularly with reference to using her fingers and hands at work and driving her motor vehicle and preparing personal tasks for herself.  The Tribunal simply did not accept that she could not open a blister pack from which she would put the tablets in the dosette box.  The Appellant herself accepted that she could grip for a short period of time possibly around 30 seconds and this would mean that she could easily remove tablets from blister packs and put them into a dosette box.  The Tribunal did not accept she had a difficulty with her memory as regards taking her medication, given the nature of her occupation and the requirement for conversation and cognition in her working activities.  There was no issues as regards memory recall nor cognition in the clinical examination.”

In the above extract the Tribunal has referred to (the appellant’s) ability to grip, drive a motor vehicle and various tasks at her job in an office.  Further with reference to any possible cognitive problems, that none were noted at either the clinical examination nor have been reported to her GP.  In effect the tribunal has concluded that (the appellant) does not reasonably require to use a dosette box to assist her with this activity. 

Therefore I submit that the Tribunal has fully considered (the appellant’s) ability to access her medication, but after considering all the evidence came to the conclusion that she can manage her medication unaided.  As such she was not awarded any points for activity 3 of the daily living activities.  I therefore submit that there is no merit in this ground of appeal. 

For completeness I would point out that even if the tribunal had have found that (the appellant) did require to use a dosette box as an aid to help her manage her medication she would have only scored 1 point under activity 3, descriptor (b)(i) – ‘needs either use an aid or appliance to be able to manage medication’.  This along with the other points awarded by the tribunal would have amounted to 7 points which would not have warranted an award of Personal Independence Payment. 

3.	The Tribunal failed to consider the appellants ability to engage with other people 

Ms Williams contends that (the appellant) has trouble engaging with others, and referencing the Tribunal’s finding regarding employment, states that her engagement with colleagues is normally done via email, and not very often.

Activity 9 of Part 2 of Schedule 1 of the PIP Regs covers the activity “Engaging with Other People Face to Face”. The activity contains various descriptors and points are awarded based on a person’s ability to engage with other people as follows:  

Descriptor Points

a. Can engage with other people unaided.		0

b. Needs prompting to be able to engage with other people.		2

c. Needs social support to be able to engage with other people.	4

d. Cannot engage with other people due to such engagement 	8

causing either – 

(i) overwhelming psychological distress to the claimant; or 

(ii) the claimant to exhibit behaviour which would result in a 

substantial risk of harm to the claimant or another person.

Psychological distress is defined in Part 1 of Schedule 1 as “distress related to an enduring mental health condition or an intellectual or cognitive impairment”.
 
The Tribunal assessed (the appellant’s) ability against each of these descriptors, arriving at the conclusion that she did not score any points.  In the reasons for decision at pages 2/3 (in respect of the daily living component), the Tribunal make a number of relevant findings:

“The Tribunal noted her work history and her requirement to deal with members of the public from time to time to a less extent but mainly with members of her team at work . .The Tribunal accepted that she would have to deal with staff from time to time given her position as financial administrator. …… The Tribunal noted that she had to deal with medical personnel at the appointments she attended, she was able to deal with shop staff if she went shopping and members of the public in general if she was out and about in everyday activities.  As previously indicated there was no evidence whatsoever of overwhelming psychological distress in engaging with people nor any evidence whatsoever of overwhelming psychological distress in engaging with people nor any evidence whatsoever of the Appellant exhibiting any behaviour at all which would result in a substantial risk of harm to the Claimant or any other person.  Any such evidence simply does not exist and accordingly no points were awarded in respect of this activity.”

On the basis of the Tribunal’s assessment of the evidence, it appears that the decision not to award any points for this descriptor was correct.  While it is contended (the appellant’s) engagement with colleagues is infrequent and often via email, this appears to be accepted by the Tribunal where it notes that she “had to deal with staff from time to time”.  That aside this was only one strand of the Tribunal’s findings.  The Tribunal also refers to her dealings with people in carrying out her every day activities.  It is my submission that the mere fact of feeling self-conscious in this instance does not in itself amount to an award of any points for these descriptors.

Therefore I submit that the Tribunal have fully considered (the appellant’s) ability to communicate with others, but have correctly found that she is able to do so unaided. Accordingly, I submit that there is no merit in this ground of appeal.’

	Analysis

10.	I agree with Mr Donnelly’s careful analysis of grounds (i) and (ii) and for the reasons which he has set out agree that the decision of the appeal tribunal is not in error of law. 

11.	In relation to the appellant’s second ground, descriptor b(i) of activity 3 in Schedule 2 to the Personal Independence Payment Regulations (Northern Ireland) 2016 (‘the 2016 Regulations’) is that a claimant needs to use an aid or appliance to be able to manage medication.  ‘Aid or appliance’ is defined in regulation 2 of 2016 Regulations.  

12.	It is important to note that in AK v Secretary of State for Work and Pensions ([2016] UKUT 256 (AAC)), Upper Tribunal Judge May QC accepted a submission by the Secretary of State that for the purposes of regulation 2 of the Social Security (Personal Independence Payment) Regulations 2013 (‘the 2013 Regulations), which is in identical wording to regulation 2 of the 2016 Regulations, a dosette box is an aid or appliance for the purposes of managing medication.  In so doing he also accepted that a receptacle for the general storage of medication, in that case, a biscuit tin, could not come with the definition of aid or appliance – see the endorsement of this decision at paragraph 4.171 of Volume 1 of Social Security Legislation 2017/2018.

13.	Dosette boxes may be used as a receptacle for medication laid out on a daily or part-daily basis.  They may also serve as a prompt to take medication when it is required and as a reminder that medication has been taken when appropriate.  A requirement for prompting to take medication or to be reminded when a particular dose has been taken may arise from an individual’s physical or mental condition.   

14.	In the instant case, the appeal tribunal noted that the appellant used a dosette box.  The appeal tribunal’s reasoning was that it did not accept that she required assistance with filling the contents of the dosette box. Further it did not accept that she had any difficulty in remembering to take her medication.  The appeal tribunal’s reasoning for both conclusions was rational and coherent.  It was the case, therefore, that the appeal tribunal concluded that descriptor b(i) of activity 3 in Schedule 2 to the 2016 Regulations did not apply.  I find no error in law in respect of the appeal tribunal’s decision on this issue.          

15.	In any event, and as was noted by Mr Donnelly, the application of descriptor b(i) of activity 3 would not have made any difference to the outcome of the decision made by the appeal tribunal.  That is because descriptor b(i) of activity 3 attracts an award of 1 point.  The appeal tribunal’s conclusions on the other daily living activities, which I have accepted, resulted in the award of 6 points.  Adding a further point to make 7 means that the appellant would not, in any event, have reached the threshold of 8 points necessary to be assessed as limited ability to carry out daily living activities and, accordingly to be awarded an entitlement to the daily living component of PIP at the standard rate – see article 83 of the Welfare Reform (Northern Ireland) Order 2015 and regulation 5 of the 2016 Regulations.   

(signed) K Mullan

Chief Commissioner

14 June 2018