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The provision under consideration in the present case
The provision under consideration in the present case
So far as it is material to the unsupported ground of appeal, Activity 4 (Washing and bathing) in the table provides:
Column 1 Activity | Column 2 Descriptor | Column 3 Points |
4.Washing and bathing: | a. Can wash and bathe unaided. b. Needs to use an aid or appliance to be able to wash or bathe. c. Needs supervision or prompting to be able to wash or bathe. d. Needs assistance to be able to wash either their hair or body Below the waist. e. Needs assistance to be able to get in and out of a bath or shower. f. Needs assistance to be able to wash their body between the Shoulders and waist. g. Cannot wash and bathe at all and needs another person to wash their entire body. | 0 2 2 2 3 4 8 |
Schedule 1, Part 1 defines the term ‘bathe’ in this activity as:
“bathe” includes get into or out of an unadapted bath or shower.
There is no definition of unadapted bath in the regulations. In SP v SSWP (PIP) [2016] UKUT 190 (AAC), Judge Rowley said this about ‘unadapted bath’ as provided in descriptor 4e:
“17. There is no express indication in descriptor 4e as to whether the assessment should be ofa claimant’s ability to get in or out of an unadapted bath or shower.
18. The version of the descriptors which appears in the Social Security (PersonalIndependence Payment) Regulations 2013 (SI 2013/377) was not that which was originallydrafted. The activity in the draft immediately preceding the regulations was headed “bathing andgrooming,” and the concomitant descriptor to what is now 4e was in these terms: “needsassistance to bathe”. Following consultation, the structure and title of the activity and itsdescriptors were changed to the way in which they appear in the Regulations. In particular, theword “bathe” does not appear in descriptor 4e.
19. That history may serve to explain why “bathe” is defined in Schedule 1 as: “includes getinto or out of an unadapted bath or shower;” but there no reference in descriptor 4e as to whetherthe bath or shower is an unadapted one. Rather, the descriptor simply asserts that claimant mustneed assistance to be able to get in or out of “a” bath or shower.
20. Be that as it may, Ms Walker submits that, in line with the spirit of the activity, the bathor shower referred to in descriptor 4e must be an unadapted one. It is, she says, clear from thedescription of the activity and definition of “bathe” that the activity in general is assessing theactions involved in a standard bathroom.
21. Adopting a purposive approach, I accept Ms. Walker’s submission. A claimant’sfunctional abilities should be considered in relation to whether they need assistance to be able toget in or out of an unadapted bath or shower. “
- Heading
- The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal made on 3 July 2023 under SC154/23/00620 was made in error of law. Under section 12(2) (a) and (b)(i)
- These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal
- First, whether a device can constitute an aid as defined in Social Security (Personal Independence Payment) Regulations 2013 (“the Regulations”), in circumstances where the device is a structural feat
- I am grateful to the Respondent for the supplementary submissions which are directed to the above issues The general scheme of the Welfare Reform Act 2012 and the Social Security (Personal Independence Payment) Regulations 2013
- Interpretation under Regulation 2, Schedule 1, Part 1 of the Social Security (Personal Independence Payment) Regulations 2013
- Supervision, prompting and assistance
- Regulation 4(2A) of the Social Security (Personal Independent Regulations) 2013
- Regulation 4(4) defines these concepts as follows
- The provision under consideration in the present case
- The context in which the present issues arise
- The Findings of the First-tier Tribunal
- The Appellant’s Grounds of Appeal
- Grant of Permission to Appeal
- The Secretary of State’s argument on the unsupported ground of appeal
- Analysis and Reasons
- Aids and Unadapted Bath or Shower
- As applied to the facts as found in this appeal
- Conclusions