[2024] UKUT 339 (AAC)

In her Notice of Appeal, the claimant challenged the DWP’s decision on activities 1 (preparing food), 2 (taking nutrition), 3 (managing therapy), 6 (dressing and undressing), 7 (verbal communication), 8 (reading and understanding), 9 (engaging with people fact to face), and 10 (making budgeting decisions). She had already been awarded 2 points for activity 4 (washing and bathing), and a further 2 points for activity 9. Activity 5 (toileting) was not an area of difficulty.

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Findings of fact

The claimant has anxiety and depression, but the functional impact is intermittent.

This condition was managed by the claimant’s G.P.

There had been no previous counselling or other secondary support, although a referral was now underway.

Medication for anxiety and depression is not at maximum dosage.

Functional limitations are variable, depending on the claimant’s then mood.

In physical terms, the noted medical issues do not support claimed functional limitations, with the exception of activities 4 and 9. Reasons 42. The Tribunal had documents up to page 97.

There are a number of preliminary observations to make at this stage.

First, a descriptor applies if it reflects one’s ability for the majority of time.

Second, this appeal is concerned with the functional impact of any claimed difficulties. By reference to the claim form, the only medical issues were anxiety and depression and asthma. The Tribunal noted later claims for other conditions, but as they were not included in the claim form (other than the torn ligament), the Tribunal concluded their functional impact was not such as to prompt the claimant to list them as live issues in her claim.

Third, no medical evidence has been submitted by the claimant. The Tribunal found that surprising as it considered MRI scan reports would have been available and could have been submitted. As a consequence, this appeal may only be determined on the basis of the claim form for this benefit, the UC assessment report, and the PIP assessment report.

In terms of anxiety and depression, the Tribunal accept the diagnosis, but not the claimed functional impact. It noted the claimant was on modest medication, although it also noted she had been prescribed citalopram shortly before her assessment, and her treatment may change depending on its effectiveness.

We turn next to the specific tests.

Preparing food

The claimant noted that “I suffer with anxiety and depression some days I don’t feel like eating or feel like cooking food I have also got a torn ligament (left foot) which prevents me from standing”.

The claimant is reminded that points may only be awarded if the functional difficulty exists for the majority of time. By itself, the use of the word ‘sometimes’ suggests it is not for a majority of time, but in reaching its conclusion the Tribunal needs to be alive to the possibility that the claimant did not mean ‘sometimes’ in that context.

The HP noted the claimant was able to “prepare her own meals, and was able to stand for the duration of time required” [40/19].

The claimed inability to stand is inconsistent with what was reported to both the UC and HP assessors, and with an admitted ability to walk to a friend’s house, a local shop, the post office and a supermarket, and standing to take a shower.

The Tribunal concludes the claimant had, for the majority of time, the physical and mental ability to prepare and cook a simple meal for one, and accordingly no points are scored.

Taking nutrition

In her claim form, the claimant confirmed she had no issue with eating or drinking [30/9]. Although the claimant noted in her appeal form that she would eat unhealthy snacks, the nutritional quality of what is consumed forms no part of this test. The Tribunal agrees with what was said in the claim form, and again no points are scored.

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Reading and understanding

In her claim form, the claimant identifies a struggle to read words in e.g. a letter, due to her dyslexia. It should be noted that complex language in this context is considered to be two or more sentences, or somewhat less that the average letter or bill. It is noted the claimant was diagnosed as dyslexic when at college, although no extra provision was made as a consequence. It is also noted the claimant had passed a driving test (including the theory test), and attained level 1 in science, maths and English in addition to a qualification in travel and tourism 40/19]. It is unfortunate the HP did not detail the qualification, but having regard to the limited threshold for this test, the Tribunal is satisfied no points are scored.

Engaging with people

In her claim form, the claimant noted her “extremely bad anxiety”, which is not consistent with her levels of medication. Further, she reported to the HP she had good and bad days, appeared to have no problems in using taxis, and walked to shops and her friend’s house. She accepted she could make small talk if necessary, even with people she had not previously met [40/19]. In her UC assessment, it was noted the claimant would speak with friends and family and did not like speaking to people she did not know [72/51].

On the evidence available to it, the Tribunal concluded the claimant would need prompting to engage with people, but would not need social support. It agrees with the DWP and two points are scored for this activity

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Summary

The Tribunal accept the claimant has anxiety and depression, asthma, and suspected but unconfirmed musculo-skeletal issues in addition to a torn ligament. It does not accept the functional limitations arising from the medical conditions to be of such a degree as to score points in the daily living tests for this benefit, with the exception of activities 4 (washing and bathing) and 9 (engaging with people).

The Tribunal accepts the mental health issue is somewhat fluid, with a trial of a low dosage of citalopram, and planned secondary support. The physical position is unclear as the outcome of MRI scans was not disclosed to the Tribunal, and there was no medical evidence put before it. It may be the case the position has changed since the date of decision, but that is not something this Tribunal is able to take into account. It is however open to the claimant to make a fresh claim for this benefit if she wishes.”.