Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 339 (AAC)

Fecha: 27-Oct-2024

Failure adequately to explain why the First-tier Tribunal found that the claimant had “for the majority of time, the…mental ability to prepare and cook a simple meal for one”

(iii)

Failure adequately to explain why the First-tier Tribunalfound that the claimant had “for the majority of time, the…mental ability to prepare and cook a simple meal for one”

42.

The First-tier Tribunal erred in law in failing adequately to explain why it found that the claimant had “for the majority of time, the … mental ability to prepare and cook a simple meal for one”. This did go further than simply finding that the claimant can prepare her own meals; it addressed mental ability and not just physical ability. But what the First-tier Tribunal said in the rest of its statement of reasons did not explain why the claimant’s mental ability was up to the task and why there was no need for prompting.

43.

This is what the First-tier Tribunal said in the rest of its statement of reasons, about mental health and functioning (paragraphs 36 to 40, 47 and 50)—

“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”;
“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”; and
In relation to the evidence that “I suffer with anxiety and depression some days I don’t … feel like cooking food”, the tribunal observed that “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”.

44.

It was in the claimant’s favour that the First-tier Tribunal did not find the reference to “sometimes” cited by the HCP, or “some days” stated in the claim form, to mean that “on over 50% of the days” was not met (or that “for a majority of the time” was not met, to which I return below). But it was still not apparent whether the First-tier Tribunal accepted the lack of motivation and a need for prompting, but did not accept that it was there on over 50% of the days (albeit not based on “sometimes” or “some days”), or whether the tribunal did not accept that there was a lack of motivation and a need for prompting at all for preparing food. The finding that functional Impact was intermittent did not go far enough.

45.

If the First-tier Tribunal’s findings were construed as meaning there was no need for prompting at all for preparing food, it is not apparent why that was, given the following points—

(1)

First, a need for prompting had been put in issue by the claimed lack of motivation on page 9 and the reference to being reminded in the Notice of Appeal to the First-tier Tribunal.

(2)

Second, the claimed lack of motivation was not contradicted by the HCP’s report that the claimant can prepare her own meals, as I have said above.

(3)

Third, such a need is readily conceivable in a case of depression and anxiety, especially when the activity is considered, as it should have been, by reference to “repeatedly”, “to an acceptable standard”, and “within a reasonable time period” (“safely” was probably not relevant to prompting).

(4)

Fourth, the First-tier Tribunal had been sufficiently persuaded of the adverse effects of the claimant’s mental ill-health to award 10 points for planning and following journeys. That high planning and following journeys score indicates a mental health issue that could have had more of an effect on daily living than the First-tier Tribunal found. The First-tier Tribunal said at paragraph 13: “As the claimant was awarded the highest possible rate of PIP for mobilising activities, there is nothing to be gained by setting out the reasons for the Tribunal’s decision in that respect. This statement will therefore focus on the claim for daily living activities”. While there might indeed not have been anything to be gained in terms of avoiding an error of law for mobility descriptor 1d, the reasons for awarding mobility descriptor 1d were potentially relevant to the daily living activities too. It is not apparent whether the First-tier Tribunal accepted that the need to be accompanied was due to the claimed fear of falling, or whether it was due to anxiety more generally. The HCP had reported on page 19 that “She doesnt go out anywhere else, unless her mother needs help with food shopping, she would then ask her brother to go with her due to anxiety about falling” (although the HCP went on to consider mobility descriptor 1 not due to fear of falling but due to the mental health conditions: page 37). If the First-tier Tribunal awarded the 10 mobility points due only to the fear of falling, the mobility descriptor 1d reasoning was less relevant to a need for prompting in daily living activities. But without the First-tier Tribunal’s explanation, we do not know which it was.