[2024] UKUT 339 (AAC)

Application of the wrong test and failure to make findings as to whether the claimant can do so on over 50% of the days (rather than “for more than 50% of the time” or “for the/a majority of the time”)

The First-tier Tribunal materially erred in law in misciting the test in regulation 7 and in applying the wrong test. The test is not “for more than 50% of the time” (as the First-tier Tribunal said at paragraph 13), or “for the majority of the time” (as the tribunal said at paragraph 44), or “for a majority of the time” (as the tribunal said at paragraph 50). It is “on over 50% of the days of the required period”. While some First-tier Tribunal panels do sometimes miscite regulation 7 in this way (a hangover from previous legislation), it is not always a material miscitation. Here, however, it appears that the First-tier Tribunal’s application of “for more than 50% of the time” and of “for the/a majority of the time” could well have led it to reject any needs for activity 1 by imposing too high a bar: “on” a day is a lower test; it can be satisfied even if the descriptor is satisfied for less (indeed much less) than 51% of the day.