[2024] UKUT 339 (AAC)

I refused permission to appeal for Ground 3 so far as relating to toilet needs (activity 5). It was argued that the First-tier Tribunal had failed to make proper findings of fact, that is, as to whether the claimant was able to undertake activity 5 safely, to an acceptable standard, repeatedly, within a reasonable time period and on over 50% of the days. The grounds pointed out that “the claimant is recorded as telling the HCP on page 19 that she used a raised toilet seat and grab rails”. In her claim form, the claimant had answered “No” to the question “Does your condition affect you using the toilet or managing incontinence?” (page 10). The First-tier Tribunal listed at paragraph 14 the activities that had been raised in the Notice of Appeal, and correctly excluded from that list toilet needs. The First-tier Tribunal also recorded that “Activity 5 (toileting) was not an area of difficulty”.

That the claimant did not raise toilet needs in her First-tier Tribunal appeal did not however mean, of itself, that the issue of toilet needs was not raised by the appeal (section 12(8)(a) of the Social Security Act 1998).

But I refused permission to appeal for toilet needs because I found that it was open to the First-tier Tribunal not to find that toilet needs were an issue raised by the appeal. The only evidence relied on as having raised toilet needs as an issue was what the HCP had said on page 19. But the grounds do not go far enough in citing what the HCP had said on page 19. She had said—

“She is able to get on/off the toilet and manage her toilet hygiene, there is a raised toilet seat for another family member that she uses, she also uses the grab rails that are there, she is unsure if she could manage without these there”.

So the evidence was that the raised toilet seat was for another family member. And there was no suggestion that the grab rails had been placed for the claimant. Neither point necessarily meant that the claimant did not need them, however. But the claimant had not said anywhere in the evidence that she needed them, and had not said that toilet needs were an issue at all. I found that it was open to the First-tier Tribunal not to take the claimant’s statement to the HCP that “she is unsure if she could manage without these there” as evidence that she needed the grab rails and raised seat.

And so I found that Ground 3 was not arguable so far as relating to toilet needs. This does not however mean that the claimant cannot ask for toilet needs to be considered afresh on remittal.