[2024] UKUT 339 (AAC)

I found in granting permission that Ground 3 was arguable in respect of daily living activities 1, 2 and 8, for the reasons set out in paragraphs 34 to 54 of this decision.

In granting permission, I found too – which I added to Ground 3 – that there was an arguable error of law in relation to activity 6, as regards physical functioning. Ground 3 mentioned lounge clothes but did not specify their relevance, and activity 6 was not expressly challenged in the grounds put to the Upper Tribunal. I found however in granting permission that it was arguable that the First-tier Tribunal had erred in failing adequately to consider and make a finding as to whether the claimant needs physical help to get dressed (she did not mention help getting undressed).

Dressing and undressing were said in the claim form to be a problem due to mental functioning (page 10): “If im mentally in a bad was i wont want to wash or change my clothes i have to be told by my Mum”. It was not arguable that the First-tier Tribunal had erred in law in not finding that the claimant needs prompting to dress (or undress). The First-tier Tribunal relied, among other things, on the report of what the claimant had told the assessor in her Universal Credit assessment of 30 May 2023 (Footnote: ²) (six weeks after the 17 April 2023 PIP assessment (Footnote: ³)): “In her UC assessment, she was noted to say would get dressed into clean clothes without a need for prompting”. This was broadly correct; the UC assessor had said on page 50: “After a coffee she will go upstairs and get dressed in clean clothes, she will wear track suit. She is not prompted to do this, this is part of her routine”. Given that the UC assessment was done only six weeks after the PIP assessment, the First-tier Tribunal was entitled to take account of what the UC assessment had said.

But mental functioning was not the only issue claimed with dressing and undressing. In the Notice of Appeal to the First-tier Tribunal, dressing and undressing had been said to be a physical problem for which the claimant sat on the bed and had help from her brother or mother to put on her top or jeans (page 3). Sitting on the bed will not attract points for using the bed as an aid: CW v SSWP (PIP) [2016] UKUT 197 (AAC) (Judge Edward Jacobs) and AP v SSWP (PIP) [2016] UKUT 501 (AAC) (Judge Kate Markus QC). But having help from her mother or brother to get dressed could indicate a need for such help (the claimant did not mention help with undressing).

I said in granting permission that, if the Secretary of State opposed the appeal, she must – in addition to addressing the other grounds on which permission was granted – make a submission as to whether there was an arguable error of law in relation to a need for physical help for activity 6. In the event, the Secretary of State has not needed to make such a submission.