[2024] UKUT 450 (AAC)

Aid or appliance is defined by reference to whether it improves, provides or replaces the claimant’s impaired function, which for convenience I describe as assisting in overcoming the consequences of a function being impaired. Putting all that together, an aid must help overcome consequences of a function being impaired that is involved in carrying out an activity and is limited by the claimant’s condition. To satisfy an aid or appliance descriptor, the claimant must need an aid to assist in respect of a function involved in the activity that is impaired.

There is no definition of ‘device’. The representative of the Secretary of State has drawn attention to the definition in the 6th edition of the Concise Oxford English Dictionary, 1975, as a ‘contrivance, invention, thing, adapted for a purpose or designed for a particular function’. She also points out that it could be argued that a bed or chair are things invented and made for particular purposes or functions, but that it would be ‘unusual and outside of normal English language and usage to describe a “bed” or a “chair” as a “device” or refer to it as “an aid” or “an appliance”.’ A perching stool or a bath or shower stool, she submits, are devices specifically for the purposes for which the claimant uses them, but that is not the purpose or function of a bed or chair, and they do not become devices and therefore aids because they are incidentally sat on, or used to rest one’s foot on while dressing or undressing.

I am not clear why the definition in the 1975 Concise Oxford English Dictionary should be regarded as determinative with or without the qualification of what is usual or within normal English usage. The current Oxford English Dictionary includes various definitions of device, some of which are purely abstract. The expression must be construed here in the context of a person with an impaired physical or mental function which prevents them from undertaking certain activities without taking special measures to compensate for the impaired function. I note in this context that certain of the mobility descriptors refer to the need for an orientation aid. This is defined as a specialist aid designed to assist disabled people to follow a route safely. The reference to a specialist aid clearly indicates that in general aids do not have to be specialist aids such as perching stools and shower stools.

It is unnecessary for me to determine exactly which forms of compensation may count as a device for that purpose. However, I cannot see why it should matter, if he or she cannot stand to prepare the meal in the usual way, whether a claimant uses a perching stool, improvises with a bar stool, or prepares the meal sitting at a table, either in an ordinary chair or in a wheelchair. The question is not whether other people might choose to sit to do all or some of the work but whether the claimant is unable to do so without sitting or perching provided that the sitting or perching replaces the claimant’s impaired physical ability to stand. So too, it should not matter whether the claimant is using in the shower a special shower stool or is improvising with a garden chair. Any other conclusion would mean that tribunals would have to investigate, whenever perching stools or shower stools were used because the claimant could not stand, whether the claimant really needed them or whether they could cope with some other object such as an ordinary stool or chair. I do not consider that that degree of precision is required, or was contemplated by Parliament, by the word ‘device’ in the definition of ‘aid or appliance’.

Another example may be with taking medication. I do not see why a device for taking medication has to be a physical object that is constructed for that purpose. The alarm system on a mobile phone could be set to go off at regular intervals during the day to remind the claimant to take medication so long as that improves, provides or replaces their impaired mental function.

So too with dressing and undressing, the question is not whether other people might choose to use a chair or a bed to assist when dressing or undressing, but whether a claimant is unable to dress or undress without using them or some other qualifying aid or appliance. I therefore conclude that the claimant did score 2 points under descriptor 6(b) ‘Needs to use an aid or appliance to be able to dress or undress’ and therefore scored a total of 8 points in respect of daily living activities and was entitled to an award at the standard rate of the daily living component of PIP.”

This case raises the issue of an aid in the context of an activity that can be performed in a variety of ways by using different functions, even by people with no limitation. So, although it is possible for someone with no limitation to dress entirely while standing, many nonetheless sit for part of the time as a matter of convenience.

The claimant’s entitlement depends on the extent to which they are limited in carrying out the everyday activities specified. That is what the legislation provides. It does not provide for entitlement if the claimant is only limited in carrying out the activity in a particular manner. This provides a focus for avoiding the extreme example I have just considered and for giving proper significance to the role that function plays in the definition of an “aid or appliance”. The question is this: would this “aid” usually or normally be used by someone without any limitation in carrying out this particular aspect of the activity? If it would, the “aid” is not assisting to overcome the consequences of an impaired function that is involved in the activity and its descriptors. So, using an ordinary wooden spoon to stir hot food while it is cooking is using an “aid” in the everyday sense of the word, but it would not assist in overcoming the consequences of any loss of function, because it would be used anyway. But if the spoon had a special handle for someone with poor grip, it would be an aid for the purposes of activity 1 (preparing food).Gripping is a function involved in cooking and the use of a handle that improves grip makes the spoon an aid.

There is a difference between a person with has no limitation but who uses a spoon to stir hot food and one who uses a chair or a bed to sit during dressing. In the former case, it is not a matter of choice; no one stirs hot food with their fingers. In the latter case, it is a matter of choice or convenience, as it is possible for someone with full function to dress without sitting. They are, though, also similar in that they are both usual or normal ways of performing the activity. By employing them, the person is not demonstrating 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.

In summary, entitlement to a personal independence payment depends on the claimant having a condition that limits their ability to carry out particular activities. The need to use an aid is a measure of the extent of that limitation. Whether something is an aid depends on whether it assists in overcoming the consequences of a function being impaired in the carrying out of that activity. That function must be one that is required in order to carry out the particular aspect of an activity, not merely one of a range of functions that could be employed.”

The activities in Schedule 1 to the Regulations can be performed in a variety of ways. Dressing and undressing is no exception. A person who has little or no choice as to the manner in which they can carry out an activity but who can do it nonetheless, is not limited in doing so. I respectfully agree with Judge Jacobs’ reasoning at paragraph 31 and 32 of CW. Otherwise a claimant who can eat sitting down but needs an aid or assistance to eat standing up would qualify for points under activity 2, and a claimant who can sit in a bath but needs an aid or assistance to lie down in it would qualify for points under activity 4. Once that is understood, it can be seen that what is usual or normal is both a relevant and a necessary consideration. It provides the limits for what a claimant can be expected to do and not to do (see Judge Jacobs’ example at paragraph 30 of his decision) in order to undertake an activity.

CW is not inconsistent with Judge Mark’s analysis in NA. His observation at paragraph 4 that it was irrelevant what other people might choose to do was made in the context of addressing the question whether an ordinary every day object could be an aid. In that context, it did not matter that such objects may be used by non-disabled people as a matter of choice. He was not focussing on the question of connection which arose in CW and arises here and so did not need to analyse the functions involved in the activity. For the reasons explained in CW and supplemented here, different considerations apply when deciding whether a person is able to perform the functions involved in an activity.