[2024] UKUT 339 (AAC)

The First-tier Tribunal erred in law in relation to taking nutrition.

First, the First-tier Tribunal miscited the evidence.

The First-tier Tribunal said—

“Other inconsistencies are apparent in the papers. For example, the claimant denies any issue with eating or drinking, but includes this as an issue in her appeal” (paragraph 19) and

“In her claim form, the claimant confirmed she had no issue with eating or drinking … The Tribunal agrees with what was said in the claim form, and again no points are scored” (paragraph 54).

It was not correct to say that the claimant had confirmed in her claim form that she had no issue with eating and drinking nor to say that it was an inconsistency to include it as an issue in her appeal. It is true that she had in the claim form put “No” to the question “Does your condition affect you eating and drinking?”. But she had said otherwise in answering the questions immediately above that one (page 9, my emphasis)—

“Does your condition affect you preparing food, or ever prevent you from doing so?

Yes

Tell us about the difficulties you have with preparing food and how you manage them

I suffer with anxiety and depression some days i dont feel like eating or feel like cooking food i have also got a torn ligament (left foot ) which prevents me from standing”.

The claimant had reported to the HCP: “She only had 1 meal yesterday, sometimes she needs encouragement to eat/drink water” (page 19). The HCP did go on to say that “She tends to just drink coffee. She thinks this is due to pain from her wisdom teeth and it is painful to eat”. But the First-tier Tribunal needed to consider whether that undermined the claim made in the claim form and in the appeal that the lack of motivation to eat was due to anxiety and depression as stated on page 9 (“due to” was not used, but that was the result of how they were linked in the sentence: “I suffer with anxiety and depression some days i dont feel like eating”).

Second, motivation to eat having been put in issue, the First-tier Tribunal also erred in law: (i) in failing adequately to consider and make a finding as to whether the claimant needs prompting to be able to take nutrition; (ii) in failing to make findings as to whether the claimant can prepare and cook a simple meal unaided repeatedly, to an acceptable standard and within a reasonable time period; and (iii) in applying the wrong test and failing to make findings as to whether the claimant can do so on over 50% of the days (rather than “for the/a majority of the time” and "for more than 50% of the time”).