[2024] UKUT 244 (AAC)

When granting permission to appeal I observed as follows:-

… the First-tier Tribunal appears to have accepted the appellant’s evidence that she needs special gloves and a device (i.e., probably, ‘an aid’) and/or assistance from her mother to put on stockings (see [20], [24] and [25] of the SoR), but has not awarded (or given any reasons for not awarding her) 2 points for daily living activity 6 (dressing and undressing) whether on the basis of ‘needing an aid or appliance to be able to dress or undress’ or ‘needing assistance to be able to dress or undress their lower body’.

In responding to the appeal, and supporting it, the Secretary of State pointed to the evidence in the bundle indicating that the appellant’s stockings are prescribed by her doctor/health professional and thus fall within the definition of “therapy” in Part 1 of Schedule 1 to the PIP Regulations and activity 3. The Secretary of State submits that the Tribunal erred in not considering, and in not making sufficient findings of fact to enable it to consider, whether the appellant should have been awarded points under activity 3. The Secretary of State submits that the appellant should not also be considered for points under activity 6 because this would amount to “double counting”.

The appellant agrees with the Secretary of State that the compression stockings fall within the definition of “therapy” as they have been prescribed by the appellant’s doctor/health professional and agrees that accordingly the appellant should have been awarded two points under activity 3. However, the appellant submits that this does not preclude the appellant also being awarded points under activity 6 which requires an assessment of the appellant’s ability to dress her lower half including with “a hypothetical non-therapeutic stocking”. The appellant adds that a person might reasonably choose to wear compression stockings even if not prescribed and that in those circumstances assessment of their ability to get them on and off would be relevant to activity 6 even though not to activity 3 as, if not prescribed, they would not fall within the definition of “therapy”.

I broadly agree with the appellant and as this Tribunal on remission (and potentially other Tribunals in other cases) may need to deal with this issue, I provide some brief guidance on where the lines are to be drawn between activity 3 and activity 6 so far as compression stockings are concerned.

First, I agree with both parties in this case that compression stockings that have been prescribed by a registered doctor, nurse or pharmacist, or health professional regulated by the Health Professions Council will, by virtue of the definition in Part 1 of Schedule 1 to the Regulations, be “therapy” within the meaning of the Regulations. That was what Judge Perez concluded in relation to prescribed