Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

 

As the decision of the First-tier Tribunal (made on 26 September 2014 at Port Talbot under reference SC156/14/00650) 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 her claim that was made on 23 December 2013 and refused on 30 April 2014.

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.        The issues and how they arise

1.         This case raises two issues on the interpretation and application of the Social Security (Personal Independence Payment) Regulations 2013 (SI No 377). First, with regard to activity 6 in Schedule 1 to the Regulations, which deals with dressing and undressing: to what extent is this dependent on the clothes that the claimant chooses or is obliged to wear in view of her disability? Second: what does regulation 4(2A) mean and how is it to be applied?

2.         This is how the issues arise. The claimant was in receipt of an award of a disability living allowance consisting of the mobility component at the higher rate and the care component at the lowest rate. On 18 December 2013, as part of the transition from disability living allowance to personal independence payment, she made a claim for a personal independence payment. Having obtained evidence from the claimant and her GP, the decision-maker refused the claim on 30 April 2014 on the basis that she had a score of nil for both the daily living component and the mobility component.

3.         The claimant exercised her right of appeal to the First-tier Tribunal. The tribunal agreed with the Secretary of State’s score of no points for the mobility component, but identified descriptors scoring 7 points for the daily living component. That was not sufficient for an award. That would have required a score of 8 for an award at the standard rate or 12 for an award at the enhanced rate. The tribunal explained its reasoning on activity 6 in this paragraph:

The Tribunal next looked at descriptor 6 for daily living activities (‘dressing and undressing’). [The claimant’s] claim pack had set out that she needed help from another person to dress and undress. She expanded on this by  describing problems with her lower garments due to pain and discomfort in her joints and dizziness when she bent down. In evidence she did not mention this pain as impacting on her ability to dress and undress and told us that she wore ‘easy to wear’ clothes whether was going out or staying in. At the hearing we observed that she took off her cardigan slowly but unaided. We did not accept that [she] needed help to dress or undress or that she needed an aid or appliance to do so as there was no evidence to support either proposition. We did not find that descriptor 6 applied to [the claimant].

4.         I gave the claimant permission to appeal, saying:

… there is an issue of how Activity 6 applies. Is it to be tested by reference to the clothes the claimant actually wears or is it a more abstract test? If the former, the test seems to be self-fulfilling. The claimant may have chosen to wear those clothes in order to allow her to cope with her disability, which is what her representative argues. In a different case, the claimant might choose to wear clothes that are difficult to put on in order to satisfy the test.

B.        The legislation

5.         Personal independence payments were introduced by the Welfare Reform Act 2012. They consist of two components: the daily living component and the mobility component (section 77(2)). This case concerns the former, which is governed by section 78:

78 Daily living componentE+W+S

(1) A person is entitled to the daily living component at the standard rate if—

(a) the person's ability to carry out daily living activities is limited by the person's physical or mental condition; and

(b) the person meets the required period condition.

(2) A person is entitled to the daily living component at the enhanced rate if—

(a) the person's ability to carry out daily living activities is severely limited by the person's physical or mental condition; and

(b) the person meets the required period condition.

(3) In this section, in relation to the daily living component—

(a) ‘the standard rate’ means such weekly rate as may be prescribed;

(b) ‘the enhanced rate’ means such weekly rate as may be prescribed.

(4) In this Part ‘daily living activities’ means such activities as may be prescribed for the purposes of this section.

(5) See sections 80 and 81 for provision about determining—

(a) whether the requirements of subsection (1)(a) or (2)(a) above are met;

(b) whether a person meets ‘the required period condition’ for the purposes of subsection (1)(b) or (2)(b) above.

(6) This section is subject to the provisions of this Part, or regulations under it, relating to entitlement to the daily living component (see in particular sections 82 (persons who are terminally ill) and 83 (persons of pensionable age)).

6.         The daily living activities are prescribed by Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013. Part 2 of the Schedule provides:

Activity	Descriptors	Points
6. Dressing and undressing	a. Can dress and undress unaided.	0
	b. Needs to use an aid or appliance to be able to dress or undress.	2
	c. Needs either- (i) prompting to be able to dress, undress or determine appropriate circumstances for remaining clothed; or (ii) prompting or assistance to be able to select appropriate clothing.	2
	d. Needs assistance to be able to dress or undress their lower body.	2
	e. Needs assistance to be able to dress or undress their upper body.	4
	f. Cannot dress or undress at all.	8

 

And paragraph 1 of Part 1 of the Schedule provides a partial definition of ‘dress and undress’:

1. In this Schedule-

…

‘dress and undress’ includes put on and take off socks and shoes; …

Regulation 4 is also relevant:

4 Assessment of ability to carry out activities

(1) For the purposes of section 77(2) and section 78 or 79, as the case may be, of the Act, whether C has limited or severely limited ability to carry out daily living or mobility activities, as a result of C's physical or mental condition, is to be determined on the basis of an assessment.

(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.

(2A)  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.

(3) 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.

(4) In this regulation-

(a) ‘safely’ means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity;

(b) ‘repeatedly’ means as often as the activity being assessed is reasonably required to be completed; and

(c) ‘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.

7.         The scoring system is set out in regulation 5, but it is not necessary to set that out.

C.        The submissions to the Upper Tribunal

The Secretary of State

8.         The Secretary of State’s representative has supported the appeal.

9.         First, the representative has argued that the legislation distinguishes between claimants only by reference to the nature of their disability and its severity. Claimants with the same disability should receive the same scores. A claimant’s ability to dress and undress involves a number of tasks, including: (i) bending from a sitting position; (ii) reaching parts of the body; (iii) raising arms; and (iv) mental ability to understand what clothing is appropriate. Individual preference is irrelevant. So are actual requirements like a suit for work. The activity has to be applied to ‘clothing which is appropriate to the general norms of society at large.’ Appropriateness is a matter of judgment and, in this case, it was implicit in the tribunal’s analysis that in her loose and easy to wear clothing the claimant was appropriately dressed. The representative has submitted that on this issue the tribunal did not make an error of law.

10.      Second, the representative has argued that the tribunal was in error in a number of respects relating to the claimant’s ability to dress to an acceptable standard, in particular by failing to deal with the issue of the pain she experienced while dressing.

The claimant

11.      The claimant’s representative has made a ‘no comment’ reply.

D.       Activity 6 – how it operates

12.      A personal independence payment is based on a functional assessment. That means that it depends on an assessment of the claimant’s ability to carry out daily living activities. The extent to which that ability is limited determines both entitlement and the rate of entitlement. That follows from the language of section 78(1)(a) and (2)(a).

13.      The only limitations on the claimant’s ability that are relevant are those that arise from a physical or mental condition. Again, section 78(1)(a) and (2)(a) so provide. It follows that a claimant’s choice of clothing is irrelevant, unless it is dictated by their physical or mental condition.

14.      A claimant’s limitations cannot be used to raise the standard by which their ability is judged. For example: a claimant who has difficulty with handling small objects cannot rely on problems in fastening a particular dress that has numerous small buttons. That would allow a claimant to generate entitlement.

15.      On the other hand, the limitations on what clothing a claimant can cope with cannot be used to lower that standard. For example: a claimant who cannot manage buttons or laces cannot be tested by reference to their ability to dress in clothes fastened by Velcro. That would mean that the more disabled the claimant is in respect of an activity, the more difficult it would be to satisfy the descriptors.

16.      There must be a balance struck that prevents claimants generating their own entitlement while at the same time not allowing their own disability to be used against them. The solution lies in concentrating on the functions that are involved in dressing and undressing and on the claimant’s condition that is said to limit their ability to perform those functions.

17.      The limiting condition may be physical. The precise limitations that the tribunal has to investigate will be dictated by the nature of the condition and its treatment. Without intending to be comprehensive, dressing and undressing may involve stretching, reaching, bending, and gripping. Some claimants will have problems with just one of these functions, others with more.

18.      Alternatively, the limiting condition may be mental. Again, the precise limitations that the tribunal has to investigate will be dictated by the nature of the condition and its treatment. A claimant who is severely depressed may lack the will to get dressed, possibly even with prompting, whilst a claimant with dementia may be able to put on clothing but not in an appropriate way.

19.      This is a convenient point to consider the sort clothing to which the claimant’s limitations must be applied. This will only arise if the claimant is able to cope with some sorts of clothing but not others. The tribunal must always consider socks and shoes, because this is what paragraph 1 of Part 1 of Schedule 1 requires. Beyond that, tribunals must apply a uniform standard for all claimants. I accept the Secretary of State’s submission to that effect and that this involves an element of judgment. It is, though, possible to give some guidance on how a tribunal should make its assessment.

·                The test is the general one whether the claimant can dress – I focus on this for convenience and because it will usually present more difficulty than undressing – not whether they can dress in any particular types of clothing.

·                But dressing is not an abstract activity. We dress for a particular purpose or occasion. The clothing we wear depends on whether we are going to be inside or out as it will on the temperature and weather. The tribunal should not limit itself to the minimum clothing necessary for warmth and decency.

·                This does not mean that the claimant is entitled to specify the type of clothing by way of preference or requirement, for example, in a particular job. That would defeat the uniform nature of the test.

·                The tribunal must not identify the clothing to which the test is applied in a way that the defeats the purpose of the test by defining away the limiting effects of the claimant’s disability.

·                But the tribunal is entitled to consider reasonable and practical alternatives. For example: claimants who cannot raise their arms to put on a pullover, may be able to put on a cardigan.

·                The balance between not defining away the claimant’s disability and taking account of alternatives can be struck by concentrating on the functions that underlie the activity. The legislation imposes a test of the claimant’s ability to perform the functions involved in the activity. It may be appropriate in an overall assessment of the claimant’s ability to dress to disregard a limitation with a particular function. But it would not be appropriate to disregard a limitation with so many functions that the claimant could only wear loose, elasticated clothes with no fastenings. The test would then no longer be a test of the activity, but of only a limited part of the activity.

20.      The points I have made can be spelt out from the purpose of the benefit and the nature of the test. That is the way I have approached it. Some of them at least could also be derived by applying regulation 4(2A)(b). That is capable of applying to the way that the clothing is worn as well as to its appropriateness.

E.        Activity 6 – how the tribunal went wrong in law

21.      I do not accept the Secretary of State’s submission that tribunal was not in error of law on this issue. Its reasons, which I have quoted in full, show no indication that the tribunal considered the sort of issues that I have analysed above. It may be, as the Secretary of State submits, that the claimant’s clothing was ‘appropriate’. But the tribunal has failed to show that it avoided the danger of identifying the clothing in a way that defined away the effects of the claimant’s disability.

F.        How regulation 4(2A) operates

22.      This provision is not happily drafted and can appear to create problems if it is not read carefully and correctly. I can illustrate the problem using regulation 4(2A)(a). Translated to the specific context of dressing and undressing, it would provide:

Where the claimant’s ability to carry out the activity of dressing and undressing is assessed, she is to be assessed as satisfying a descriptor only if C can do so safely.

The problem arises from an ambiguity. Do the words ‘do so’ refer to ‘satisfying a descriptor’ or to ‘carry out an activity’?

23.      If they are read as referring to ‘satisfy a descriptor’, the provision cannot be applied to some of the verbs used in the descriptors. Regulation 4(2A)(a) can operate easily and sensibly to descriptor (a): ‘Can dress and undress unaided.’ A claimant who can dress and undress unaided but only in a way that is unsafe does not satisfy the descriptor and so does not score the 0 points allocated. So far so good. But now try to apply that to descriptor (f): ‘Cannot dress or undress at all.’ This reading of regulation 4(2A)(a) makes no sense here, because it attempts to apply a positive requirement to a descriptor with a negative verb. Similar problems apply when trying to fit the provision to the other descriptors that refer to the claimant needing prompting or assistance.

24.      This problem disappears if the words ‘do so’ are read as referring to ‘carry out an activity’. Read in this way the provision operates sensibly. The issue is simply whether, for each descriptor, the activity involved (dress and undress) can be performed safely. I have not had submissions on this, as the difficulty only occurred to me as I was writing the decision. I did not delay the case to obtain the parties’ views, as it seems clear what the provision means, even if it is not so clear what it says.

G.       Other errors

25.      Just for completeness, I will mention three more errors that the tribunal made.

26.      First, the tribunal relied on its own observation that the claimant was able to remove her cardigan, albeit slowly. That raised the issue whether she could dress and undress in a reasonable time period for the purposes of regulation 4(2A)(d) and (4)(c), but the tribunal made no findings on this.

27.      Second, the tribunal said that there was ‘no evidence’ to support the proposition that the claimant needed help to dress. That expression is often used by tribunals and it is usually wrong. What they mean is that there is evidence but it is rejected. In this case, as the Secretary of State’s representative has pointed out, there was evidence supporting the proposition in (i) the claimant’s statement in her claim pack (page 31), (ii) her GP’s report (page 51), and (iii) the painkillers that are prescribed for the claimant (page 53). The tribunal should have explained how it assessed the relevance of that evidence.

28.      Third, the record of proceedings does not show whether the tribunal investigated the issue of pain. That is not of itself an error of law, as a verbatim record is not required. However, there is nothing in the tribunal’s reasoning to show that the issue was ever discussed with the claimant. I accept the submission of the Secretary of State’s representative on this.

 

Signed on original on 3 June 2015

Edward Jacobs Upper Tribunal Judge