[2024] UKUT 450 (AAC)

In the light of my analysis above no error of law arises from the FtT’s failure to consider whether the proposed grab handle rendered the bath adapted for the purpose of assessing 4e. As set out above, I am satisfied that even where the result of using an aid is that it adapts the bath, this is immaterial to the consideration of activity 4 descriptors.

Judge Markus KC considered Regulation 4(2A) in PS v SSWP [2016] UKUT 0326 (AAC):

The FtT recognised the Appellant had limitations to mobility and daily living activities 4 and 6, caused by breathing problems and breathlessness. For example, the FtT accepted that due to breathing problems he found it difficult to bend and this affected his ability to manoeuvre himself into the bath. While recording the submission made that he required assistance to get into and out of the bath, they concluded that he could carry out this activity with the use of an aid only, i.e. a grab rail. However, they failed to assess this activity daily living activities through the lens of regulation 4(2A) and assess whether an aid was sufficient to ensure he could to this activity to an acceptable standard and/or whether the aid was able to over his functional impairment. This regulation 4(2A) failing arises in respect of daily living activities 1 and 6 as well as mobility activity 2. The failure of the FtT to consider the impact of breathlessness on the Appellant’s ability to prepare food, wash and bathe, and dress and undress to an acceptable standard was a material error of law.

Similarly, the FtT erred in failing to adequately consider the impact of breathlessness on his ability to mobilise unaided more than 20 metres but no more than 50 metres. The evidence before them was that he struggled to walk due to breathlessness. The FtT did not inquire at what point he became breathless when walking. Further, the evidence was that he walked slowly and took lengthy breaks, the FtT erred in failing to inquire and evaluate whether he could walk the descriptor distance in a reasonable time. The FtT was not relieved of the requirement to consider the application of regulation 4(2A) simply because it, or any element of it, had not been mentioned in terms by the Appellant. The provision was put in issue by the evidence itself.

The lack of regulation 4(2A) analysis is compounded by the Appellant’s evidence that he suffered from fatigue and pain (grounds of appeal against the Respondent’s decision) which impacted on all the above activities. The FtT materially erred by failing engage with this evidence and make findings on it.

The Appellant’s evidence (see PIP2 questionnaire and grounds of appeal against the Respondent’s decision) was that he was constantly coughing which gave him a sore throat and impacted on his ability to swallow. The FtT erred in failing to consider Appellant’s evidence of the consequential impact of constant coughing in the context of his historic TB when they rejected his account of having difficulty swallowing.

Finally, the Appellant’s evidence was that his poor concentration and specifically his difficulty in budgeting was caused by fatigue related to his medical condition(s). The FtT failed to take this evidence into account when assessing whether he required prompting or assistance. I observe that the FtT accepted both his and his support worker’s evidence that she assisted him to organise his finances.