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Law
Law
Provision as to personal independence payment is made by sections 77 to 95 of the Welfare Reform Act 2012, and by the Social Security (Personal Independence Payment) Regulations 2013 (S.I. 2013/377).
At the relevant time, regulation 4 of the Social Security (Personal Independence Payment) Regulations 2013 provided—
“4. —(1) For the purposes of section 77(2) and section 78 or 79, as the case may be, of the Act, whether C has limited or severely limited ability to carry out daily living or mobility activities, as a result of C's physical or mental condition, is to be determined on the basis of an assessment.
(2) C's ability to carry out an activity is to be assessed –
(a) on the basis of C's ability whilst wearing or using any aid or appliance which C normally wears or uses; or
(b) as if C were wearing or using any aid or appliance which C could reasonably be expected to wear or use.
(2A) Where C’s ability to carry out an activity is assessed, C is to be assessed as satisfying a descriptor only if C can do so—
(a) safely;
(b) to an acceptable standard;
(c) repeatedly; and
(d) within a reasonable time period.
(3) Where C has been assessed as having severely limited ability to carry out activities, C is not to be treated as also having limited ability in relation to the same activities.
(4) In this regulation—
(a) “safely” means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity;
(b) “repeatedly” means as often as the activity being assessed is reasonably required to be completed; and
(c) “reasonable time period” means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity.”.
Regulation 7 of the Social Security (Personal Independence Payment) Regulations 2013 provided, at the relevant time—
“Scoring: further provision
—(1) The descriptor which applies to C in relation to each activity in the tables referred to in regulations 5 and 6 is—
where one descriptor is satisfied on over 50% of the days of the required period, that descriptor;
where two or more descriptors are each satisfied on over 50% of the days of the required period, the descriptor which scores the higher or highest number of points; and
where no descriptor is satisfied on over 50% of the days of the required period but two or more descriptors (other than a descriptor which scores 0 points) are satisfied for periods which, when added together, amount to over 50% of the days of the required period–
the descriptor which is satisfied for the greater or greatest proportion of days of the required period; or,
where both or all descriptors are satisfied for the same proportion, the descriptor which scores the higher or highest number of points.
For the purposes of paragraph (1), a descriptor is satisfied on a day in the required period if it is likely that, if C had been assessed on that day, C would have satisfied that descriptor.
In paragraphs (1) and (2), “required period” means—
in the case where entitlement to personal independence payment falls to be determined, the period of 3 months ending with the prescribed date together with—
in relation to a claim after an interval for the purpose of regulation 15 or 15A, the period of 9 months beginning with the date on which that claim is made;
in relation to any other claim, the period of 9 months beginning with the day after the prescribed date.
in the case where personal independence payment has been awarded to C—
during the period of 3 months following a determination of entitlement under a claim for the purpose of regulation 15 or 15A, the period of 3 months ending with the prescribed date together with, for each day of the award, the period of 9 months beginning with the day after that date;
in any other case, for each day of the award, the period of 3 months ending with that date together with the period of 9 months beginning with the day after that date.”.
Analysis
Errors of law
The First-tier Tribunal erred in law in relation to daily living activities 1, 2 and 8, as follows.
- Heading
- Mrs QWH’s appeal is allowed
- Factual and procedural background
- Appeal to the First-tier Tribunal
- Late application to the Upper Tribunal for permission to appeal to the Upper Tribunal
- Grounds of appeal to the Upper Tribunal
- Permission to appeal to the Upper Tribunal
- Ground 1
- Ground 2
- Ground 3: activities 1, 2, 6 and 8
- Ground 3: toilet needs (activity 5)
- Ground 3: budgeting (activity 10)
- Submissions
- Law
- Activity 1: Preparing food
- I take each of those points in turn Failure adequately to consider and make a finding as to whether the claimant needs prompting to be able to prepare or cook a simple meal
- Adopting the HCP’s flawed findings
- 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”
- Failure to make findings as to repeatedly, to an acceptable standard and within a reasonable time period
- 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”
- Activity 2: Taking nutrition
- Activity 8: Reading and understanding signs, symbols and words
- Ground 1 and dressing and undressing
- Disposal
- Conclusions