[2024] UKUT 450 (AAC)

As Lord Upjohn observed in Customs and Excise Commissioners v Top Ten Promotions Ltd [1969] 1 WLR 1163, at 1171:

“It is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; you can look up examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and every day usage the known, proved or admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament.” [underlining added]

The purpose of the PIP legislative framework was stated by counsel for the Respondent in MR v SSWP (PIP) [2017] UKUT 0086 (AAC) at [40]:

“40.

She referred to the Explanatory Memorandum to the PIP regulations, at paragraph 4 in particular, in which it is said that the new benefit is ‘designed to help disabled people meet the additional costs arising from a long-term health condition or disability’.

The Respondent’s submits that ‘[i]n so far as a feature is a structural characteristic of a bath which assists everyone, including people without a limitation, for example, handles on a bath, they are not aids or appliances for the purposes of the regulations because they do not assist only persons with a limitation on their functions.’ In short, if a device assists everyone, a person cannot be said to be functionally impaired if they use that device when carrying out of the task. I do not accept this as a blanket proposition.

First, CW does not establish as a blanket principle that if a device is commonly used by non-disabled and disabled persons alike it cannot constitute an aid for the purposes of the regulations. That is an impermissible overstatement of what CW decided.

Judge Jacobs did not depart from the analysis of Judge Mark in NA. Judge Jacobs observed that an everyday object could constitute an aid provided the ‘connection argument’ is met. In short, the device is considered in conjunction with what it enables (i.e. that by using the device the claimant overcomes the functional impairment, which would otherwise prevent or limit the individual from carrying out the prescribed task).

It is axiomatic that if an object is an ‘everyday’ object it is likely to be used by the functionally impaired and non-functionally impaired alike. What Judge Jacobs held in CW was that an individual who sat on a bed rather than stood to get dressed, was unable to demonstrate ‘a limitation with the functions that are required for that aspect of the activity. Rather, the person is demonstrating a limitation with one manner of carrying out that aspect of the activity.’ This point was reiterated by Judge Markus KC in AP.

However, it will be recalled that Judge Jacob also referred in his analysis to items operating as an aid for a disabled person such as a shoehorn (see [26]). This being a common everyday item, used by those both with and without functional impairments. However, in respect of the latter it can improve, replace or provide for a functional impairment when attempting to put on a pair of shoes.

The cautionary observation as Social Security Legislation 2024/25, Volume I: Non-Means Tested Benefits (hereafter 'Volume I') at p.889 is apt and bears repeating:

I do not read either CW or AP as intending or purporting that ‘normality of behaviour’ should be the cornerstone of determining whether a device constitutes an aid or not. Nor did the decisions establish as point of principle that an individual will inevitably fail to establish a functional impairment exists when carrying out a descriptor task, if the device they use to do so, is also commonly used to carry out the same task by persons who have no functional impairment. This would render a significant number of ‘everyday’ devices incapable of constituting an aid and would be inconsistent with the language of the definition itself.

The regulations define an aid is ‘any device which improves, provides or replaces a claimant’s physical or mental function.’ [underlining added]. The descriptor task directs the decision maker to consider whether the PIP claimant ‘needs to use an aid or appliance’ to carry out the descriptor task. The definition of ‘aid’ adopts unrestrictive language in respect of the device itself, by the use of the term ‘any’. The restriction or limitation within the definition is directed not at what the device is, but what it does for the PIP claimant, i.e. does it improve, replace or provide for the impaired functioning to undertake the descriptor task.

For the purposes of this ground of challenge, I am concerned with activity 4 (washing and bathing). The starting point is what does the task descriptor require of the individual (getting into and out of the bath) and what specific functioning is required to achieve this, the movement of a person outside of the bath, into the bath and thereafter the person moving from inside of the bath to outside of the bath.

Following the Respondent’s submission to its logical conclusion, it begins with the uncontroversial proposition that activity 4 concerns the use of standardised furniture when assessing whether function is impaired when carrying out the descriptor tasks. I observe at this point that some standardised models of baths may come with fixed handles, and some may not. The Respondent accepts that where a PIP claimant has a standardised bath without any bath handles, and he needs some form of handle(s) to get into and out of the bath (i.e. a grab handle) that handle would constitute an aid (see [29] of supplementary submission). However, on the Respondent’s submission, if a claimant’s bath already has fixed handles, they could not constitute an aid assisting him getting into and out of the bath, even in circumstances where he would be unable to carry out the activity without using them. The rationale given for this is because persons without functional impairments would also use these handles to get into and out of the bath where they are affixed to the bath.

First, this approach leads to an irrational differentiation. The fact that functionally impaired and those without functional impairments alike may use fixed bath handles to step into and out of a bath should not operate as distraction from the core question of why the person with a stated functional impairment is using the bath handles.

Secondly, as stated above by their very nature every day devices will be used by people irrespective of any functional impairment. As NA illustrates everyday devices can operate as an aid. The Respondent’s submission therefore is inviting a too restrictive interpretation on the definition of aid as to exclude any such everyday devices. I do not consider that the ratio in CW went that far. It may well be that where a PIP claimant relies on their use of a common everyday device as evidence of functional impairment it may have limited or no value in establishing that function impairment (see the wooden spoon analogy in CW). However, that remains a question of fact for the Tribunal exercising its inquisitorial function and assessing all the evidence before it.

I am satisfied that where a claimant has evidenced a physical condition, and established that, but for the bath handles, he could not get into or out of a bath, the handles meet the definition of an aid. That is because they are a device which operates to overcome the functional impairment in question. The fact the handles are part of the bath itself and that individuals without functional impairments also use them is an unnecessary distraction. The core issue remains which is understanding and measuring the level of the claimant’s disability when carrying out a descriptor task and what, if any, device is or can be used to overcome it.