DB-v-Department for Communities (PIP) [2018] NICom 40

Decision No:  C7/18-19(PIP)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

PERSONAL INDEPENDENCE PAYMENT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 22 May 2017

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Belfast.

2.	For the reasons I give below, I grant leave to appeal. I allow the appeal and set aside the decision of the appeal tribunal under Article 15(8)(b) of the Social Security (NI) Order 1998.  I direct that the appeal shall be determined by a newly constituted tribunal. 

	REASONS

	Background

3.	The applicant claimed personal independence payment (PIP) by telephone from the Department for Communities (the Department) from 28 July 2016 on the basis of needs arising from Raynaud’s syndrome, carpal tunnel syndrome, systemic sclerosis, pernicious anaemia and Sjogrens syndrome.  She was asked to complete a questionnaire to describe the effects of her disability and returned this to the Department on 22 August 2016, submitting further medical evidence in support of her claim.  She was asked to attend a consultation with a healthcare professional (HCP) and a consultation report was received by the Department on 7 November 2016. 

4.	On 29 December 2016 the Department decided that the applicant did not satisfy the conditions of entitlement to PIP from and including 18 January 2017.  The applicant requested a reconsideration of the decision, and submitted further medical evidence. She was notified that the decision had been reconsidered by the Department on 10 February 2017.  The Department had decided that the applicant should be awarded 2 points each for Daily Living Activity 1(b), 4(b) and 6(b) and 8 points for Mobility Activity 12(c).  It revised the original decision to award the standard rate of the mobility component from 18 January 2017 to 6 November 2019. The applicant appealed. 

5.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  After a hearing on 22 May 2017 the tribunal disallowed the appeal, maintaining the award of standard rate mobility component.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 29 June 2017.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 20 September 2017.  On 18 October 2017 the applicant applied to a Social Security Commissioner for leave to appeal. 

	Grounds

6.	The applicant submits that the tribunal has erred in law on the basis that its reasons were inadequate in the context of the activity of “Managing toilet needs”, and with particular reference to regulations 4 and 7 of the Personal Independence Payment Regulations (NI) 2016 (the PIP Regulations). 

7.	The Department was invited to make observations on the applicant’s grounds.  Mr Culbert of Decision Making Services (DMS) responded on behalf of the Department.  Mr Culbert agreed that the tribunal had erred in law and indicated that the Department supported the application for leave to appeal. 

	The tribunal’s decision

8.	The LQM has prepared a statement of reasons for the tribunal’s decision. From this I can see that the tribunal had documentary material before it consisting of the Department’s submission, containing a self-assessment questionnaire completed by the applicant, GP and physiotherapy reports and a consultation report from the HCP.  It further had a submission from the applicant’s representative, including a questionnaire completed by the applicant’s GP and a letter from the GP dated 10 January 2017.  The applicant attended the hearing.  She brought her medical records to the hearing and gave oral evidence.  The applicant was represented, as was the Department. 

9.	The tribunal heard evidence from the applicant about her walking ability, hearing of a sensation of heavy legs, light-headedness and vertigo. She described problems with her hands, impacting on ability to prepare food, manage therapy, washing and dressing.  On mobility, the tribunal accepted that the applicant could only walk between 20 and 50 metres before having to stop, and awarded 8 points for Activity 12(c). On daily living, the tribunal accepted that Activity 1(b) (Preparing food), Activity 3(b)(i) (Managing therapy) and Activity 4(b) (Washing and bathing) applied, and awarded 5 points.  The tribunal therefore accepted that the applicant satisfied the criteria for an award of the mobility component, but not of the daily living component. 
 
	Relevant legislation

10.	PIP was established by article 82 of the Welfare Reform (NI) Order 2015. It consists of a daily living component and a mobility component. These components may be payable to claimants whose ability to carry out daily activities or mobility activities is limited, or severely limited, by their physical or mental condition.  The PIP Regulations set out the detailed requirements for satisfying the above conditions. 

11.	The PIP Regulations provide for points to be awarded when a descriptor set out in Schedule 1, Part 2 (daily living activities table) or Schedule 1, Part 3 (mobility activities table) is satisfied.  Subject to other conditions of entitlement, in each of the components a claimant who obtains a score of 8 points will be awarded the standard rate of that component, while a clamant who obtains a score of 12 points will be awarded the enhanced rate of that component. 

12.	In carrying out an assessment, the following provisions of regulation 4 are relevant:

4(2) C’s ability to carry out an activity is to be assessed— 

(a) on the basis of C’s ability whilst wearing or using any aid or appliance which C normally wears or uses; or 

(b) as if C were wearing or using any aid or appliance which C could reasonably be expected to wear or use. 

(3) Where C’s ability to carry out an activity is 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 period. 

(4) Where C has been assessed as having severely limited ability to carry out activities, C is not to be treated as also having limited ability in relation to the same activities. 

(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; 

“repeatedly” means as often as the activity being assessed is reasonably required to be completed; and 

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

	Submissions

13.	I held an oral hearing of the application. Mr Ferris of Advice NI appeared for the applicant.  Mr Hinton of DMS appeared on behalf of the Department.  I am grateful to the representatives for their assistance. 

14.	As his first ground, Mr Ferris pointed to the fact that the tribunal had made findings which led to an award of 5 points for daily living activities, whereas the Departmental decision maker at first instance had awarded 6 points.  He submitted that the tribunal had failed to explain why it had not accepted the Department’s award, and that this was an error of law. 

15.	Secondly, he referred to the applicant’s habitual use of a slow cooker to prepare meals.  A principal purpose was to tenderise meat, which she could then cut up herself, as she would be unable to cut up tough meat without assistance.  He submitted that regulation 4 of the PIP Regulations was relevant, namely that a simple meal could not be prepared within a reasonable time period to an acceptable standard. 

16.	Thirdly, Mr Ferris referred to the applicant’s use of disposable gloves in managing toilet needs.  He submitted that this was indicative that the applicant used an aid or appliance in managing her toilet needs. He submitted that the tribunal – which omitted reference to toilet needs in its statement of reasons - had erred in law since it did not give an explanation of its decision on this activity or, alternatively, that the tribunal had misinterpreted the relevant descriptor. 

17.	Fourthly, he referred to the issue of dressing.  The applicant had stated that, although she wore pumps in summer, she required socks and boots in winter due to bad circulation and had difficulties with putting these on. The tribunal referred to the applicant’s problems not satisfying the 50% time requirement of regulation 7. Mr Ferris submitted that the tribunal had erred in its approach.  

18.	Mr Hinton indicated agreement with some of what had been submitted by Mr Ferris.  Mr Hinton did not dispute the right of the tribunal to remove points which had been accepted by the Department, so long as it was reasonably explained.  However, he also submitted that there had been no warning given to the applicant that points awarded by the Department for activity 6, “Dressing and undressing” might be removed.  He argued that there was an analogy with DLA “warning” cases, where a tribunal was minded to reduce or remove an existing award. He saw no reason why this should not be applied in PIP cases.  He referred to the Upper Tribunal Judge Hemmingway’s decision in LJ v SSWP [2017] UKUT 455 at paragraph 10, where he had said that the removal of points previously awarded by the Secretary of State without warning begged the question as to whether the tribunal had acted fairly. 

19.	Mr Hinton accepted that the tribunal had not given adequate reasons for its findings in activity 5, “Managing toilet needs”, accepting as arguable that the use of aid or appliance might encompass disposable gloves to perform the activity.  Mr Hinton queried whether the tribunal should have engaged in further exploration of this issue and submitted that its apparent failure to explore the issue inquisitorially rendered the tribunal’s decision erroneous in law. 

	Assessment

20.	I accept that the applicant has advanced an arguable case of error of law and I grant leave to appeal.  There was no dispute in this case on the medical evidence, which indicated that the applicant had a significant disability from schleroderma, which is a rare connective tissue disorder causing thickening and stiffening of the fingers and feet.  She was accepted as having poor grip and poor dexterity. 

21.	The Department, upon mandatory reconsideration, had awarded 2 points for activity 1.b (needs to use an aid or appliance to be able to either prepare or cook a simple meal), 2 points for activity 4.b (needs to use an aid or appliance to be able to wash or bathe), and 2 points for activity 6.b (needs to use an aid or appliance to be able to dress or undress).  This gave a total of 6 points. In its decision, the tribunal awarded a further point for activity 3.b(i) (needs … to use an aid or appliance to be able to manage medication).  However, it did not award points for activity 6.b, although maintaining the award of points under 1.b and 4.b, giving a total of 5 points. 

22.	Each party refers to the tribunal’s treatment of points accepted and awarded by the Department as giving rise to an error of law. Mr Ferris submits in this respect that there was a failure in terms of the tribunal’s obligation to state reasons. In essence, he submits that the tribunal did not explain why it elected to remove the points previously awarded by the Department.  Mr Hinton accepts the argument advanced from a reasons perspective, but goes further in submitting that this is a matter of procedural fairness. 

23.	Mr Ferris submitted that it was not evident why the tribunal had removed the points for 6.b.  The tribunal had stated:

“[The applicant] avoids clothing with buttons. She has stated that she is independent apart from difficulty with socks and boots which she wears for warmth in winter. Otherwise she wears pumps. In the opinion of the tribunal this does not satisfy the 50% time requirement”. 

24.	It seems to me that the tribunal’s reasons are clear. However, they beg the question as to whether it is correct that the applicant should have been assessed on the basis of her adaptation to her condition, which caused her to avoid clothing with buttons, or whether the test to be applied was a hypothetical one of her ability to dress in normal clothing, which could involve buttons.  It seems to me that the test must be a hypothetical one addressed to clothes normally worn in society at large. Thus, I consider that the applicant’s ability to manage buttons is something which would fall to be determined.  I am reinforced in that view by a decision of Upper Tribunal Judge Jacobs in PE v SSWP [2015] UKUT 309.  While the type of clothing a person might chose to wear may vary depending on factors such as weather and the type of social occasion attended, it seems to me that the relevant test is not to be restricted by reference to what a person’s disability permits. I am not satisfied that the tribunal has applied the test of activity 6 correctly, because of excluding consideration of clothing with buttons. 

25.	It appears to me that the tribunal’s decision demonstrates an error of law and that I should allow the appeal on this basis. I set aside the decision of the appeal tribunal.  I consider that the appeal should be remitted to a newly constituted tribunal for consideration.  Before I conclude, however, I wish to address certain other submissions in the appeal. 
 
26.	As indicated above, Mr Hinton had drawn my attention to a decision of Upper Tribunal Judge Hemingway in LJ v SSWP.  In this decision, the judge considered whether a tribunal was obligated to give a warning that it did not necessarily accept points previously awarded by the Secretary of State - the Great Britain equivalent of the Department.  Judge Hemingway held that the tribunal erred in law through failing to indicate the possibility of its removing previously awarded points (see paragraph 7).  In that case, the issue was a material one, since the award of two points would have established entitlement.  In the present case, however, the points total would have remained below the statutory threshold, even with the addition of the points removed.  I do not need to decide this issue, because of my conclusion above. 

27.	However, it does appear to me that it is not a material error in the particular case, since removal of 2 points awarded by the Department did not change the outcome.  I do have sympathy with the general submission, however, that if a tribunal is minded not to accept points awarded by the Department, procedural fairness requires that this should be communicated to an appellant or representative in order that the issue can be fully responded to.  There is otherwise a danger that the appellant will consider those points to be “in the bank” and not give adequate evidence to a tribunal on the issue.

28.	Mr Ferris had made submissions relating to the applicant’s use of a slow cooker.  This method of cooking was used by the applicant in order to tenderise particular types of food – such as meat – in order to enable them to be eaten more easily.  He submitted that use of a slow cooker indicated that the applicant could not prepare a meal within a reasonable time period, as required by regulation 4(5). 

29.	 I do not accept his submission.  A reasonable time period is defined in regulation 4(5) as “no more than twice as long as the maximum period that a person without the physical or mental condition which limits that person’s ability to carry out the activity would normally take to complete that activity”.  The focus, it seems to me, is on the time where the claimant is actively involved in preparing ingredients or actively involved in the cooking process.  Once a pot is placed in an oven, whether for 30 minutes or 6 hours, it does not require further attention, except momentarily perhaps to check that the ingredients are not dry or at risk of burning.  I do not consider that the actual cooking time, when the claimant is inactive, should fall to be considered as part of the time it would normally take “to complete that activity”. 

30.	Mr Ferris had made further references to the applicant’s use of disposable gloves in the course of activity 5, “Managing toilet needs …”. He submits that the tribunal made no findings in relation to this activity.  I accept his submission.  The tribunal does not appear to reach any conclusion as to whether the applicant should be awarded points for this activity. This is also an error of law. 

31.	The tribunal’s findings of fact on this issue indicated “Has bad constipation.  Can be messy … Wears the disposable gloves”.  The specific facts were not articulated more clearly, and understandably so as this was a sensitive issue.  However, it was clear that the applicant has restricted dexterity and clumsiness in using her hands.  As I understand it, the applicant’s use of disposable gloves was to avoid soiling of her fingers when cleaning herself after defecation.  Mr Ferris argues that the applicant’s use of disposable gloves when cleaning herself indicates that she needs to use an aid or appliance to be able to manage toilet needs or incontinence. 

32.	I accept that cleaning oneself after using the toilet falls within the meaning of toilet needs.  That much is clear from the definition of “toilet needs” in Part 1 of Schedule 1 of the PIP Regulations.  By the definition in regulation 2, an “aid” means any device which improves, provides or replaces [the claimant’s] impaired physical or mental function”.  As the facts are not entirely clear, and as I am minded to remit this appeal to a newly constituted tribunal, I do not propose to dictate a conclusion on this issue.  It will be up to the tribunal to consider whether, in the ordinary use of the English language, the applicant’s use of disposable gloves might “improve, provide or replace” her impaired physical function. 

33.	Mr Ferris made further submissions on the issue of dressing, particularly in relation to the applicant’s footwear, which I also consider should be left for the consideration of the new tribunal.  I direct the new tribunal to make findings of fact on all issues, considering first whether the activities where points have already been awarded by the Department are “issues which arise on the appeal” in the sense of Article 13(8)(a) of the Social Security NI) Order 1998. It should determine the appeal with due regard to my comments above, some of which, it may note, are obiter. 

	(signed): O Stockman

	Commissioner

	21 August 2018