Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 357 (AAC)

Fecha: 01-Oct-2024

Why I am allowing the appeal

Why I am allowing the appeal

14.

In order to score more points for daily living activity 9, the appellant would need to meet the following descriptor:

Cannot engage with other people due to such engagement causing either –

overwhelming psychological distress to the claimant; or

the claimant to exhibit behaviour which would result in a substantial risk of harm to the claimant or another person. 8 points.

15.

In relation to each descriptor, the First-tier Tribunal needs to consider as required by regulation 4(2A) whether the claimant can carry out the activity safely, to an acceptable standard, repeatedly and within a reasonable time. By regulation 4(4) “safely” means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity, “repeatedly” means as often as the activity being assessed is reasonably required to be completed; and “reasonable time” 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. By regulation 7(1)(a), the claimant must normally satisfy the descriptor on over 50% of the days of the required period (as defined in that regulation). By regulation 7(2), a descriptor is to be regarded as satisfied on a day if it is likely that, if the claimant had been assessed on that day, they would have satisfied that descriptor. Further, by regulation 7(1)(b) where two or more descriptors are each satisfied on over 50% of the days, the descriptor which scores the highest number of points is the relevant one.

16.

In this case, the First-tier Tribunal’s reasons were in my judgment inadequate to explain why the appellant did not score 8 points on daily living activity 9.

17.

The First-tier Tribunal stated: “Whilst we accept that on occasions [claimant] had exhibited behaviour likely to result in harm to others, this was not for the majority of days, and mainly when she had been drinking excessively. She had been arrested for assault a long time ago”. However, the HCP had reported that the claimant “…had a recent altercation with her neighbour which became physical and the police were contacted. social services are now involved in regard to her sons welfare. She has had suicidal thoughts and the police and social services have been involved due her threatening to overdose, this last happened 5 weeks ago following her altercation with her neighbour…”. Moreover, Mr Sowter stated: “…[LAG] finds herself in conflict with others on a regular basis and this includes employers, work colleagues, neighbours and shop workers. This conflict manifests in arguments and aggression including violence toward others and also episodes of self-harm…”. The appellant had also given evidence, which her appointee emphasises in this appeal, that she sought to minimise confrontational situations by avoiding social situations altogether.

18.

In the light of the evidence, there are in my judgment three errors of law in the First-tier Tribunal’s reasons.

19.

First, the Tribunal should have been focusing on the situation at the time of the Secretary of State’s decision (as required by section 12(8)(b) of the Social Security Act 1998). It is not clear that it adhered to this requirement when considering daily living activity 9.

20.

Secondly, given the evidence from the HCP and Mr Sowter as to recent and frequent conduct that posed a risk of harm to the appellant and others, the Tribunal’s reasons are inadequate to explain why it concluded that the claimant’s risky behaviour was only occasional and that it had improved.

21.

Thirdly, as there was evidence that the appellant was avoiding social engagement in order to avoid confrontational situations, the Tribunal could not simply proceed on the basis that as the appellant had not in fact exhibited behaviour that posed a substantial risk of harm to herself or others on a majority of days descriptor 9d was not satisfied. The combined effect of regulations 4(2A) and 7 is that the descriptors need to be considered on the basis that a claimant is carrying out the activities as often as is reasonable for them to be carried out and, if the claimant is not carrying out the activities as often as is reasonable, the Tribunal needs to consider why the claimant is not doing so. If it is because of the claimant’s disability, then the Tribunal needs to consider whether the descriptor would apply on the majority of days if the claimant did in fact carry out the activity as often as was reasonable.

22.

These principles are well explained in two decisions of Judge Hemingway. The first is TR v SSWP [2016] AAC 23 where Judge Hemingway held as follows (emphasis added):

30.

I would certainly accept Ms Pepper’s contention that if a descriptor does apply at any point during a 24 hour period that must be a direct consequence of a claimant’s physical or mental condition. That follows logically from the wording of section 78(1)(a) and section 79(1)(b) of the Welfare Reform Act 2012. Ms Pepper also submits that the de minimis principle applies. Put simply, that is a legal doctrine by which a court refuses to consider a trifling or trivial matter. So, if that argument is right, then a brief or momentary inability to perform a task within a 24 hour period will not mean that a descriptor relevant to that task will be satisfied for the relevant day.

31.

Clearly Ms Pepper’s contention, in this regard, is an entirely sensible and logical one. A personal independence payment is designed, in broad terms, as is disability living allowance which it is replacing, to assist persons who are disabled mentally or physically to lead a normal life and to get about. It would be inconsistent with that legislative approach and intention if a claimant who was incapable of performing a task or function for only a fleeting or trivial period to be able to satisfy one or more of the descriptors for that reason.

32.

Following the above reasoning, therefore, it seems to me that for a descriptor to apply, on a given day, then the inability to perform the task or function must be of some significance, that is to say something which is more than trifling or, put another way, something which has some tangible impact upon a claimant’s activity and functioning during a day but not more than that. So, by way of illustration, to use the example given in the PIP Assessment Guide, if a person were to take his painkilling medication at the start of the day and it was to take effect quickly, so that his normal daily routine would not be inhibited in any way, then the relevant descriptors, in this context perhaps those relating to functions such as dressing, washing and toileting, would not be satisfied such that no points would be scored. If, however, the medication did not start to work for a period such as to delay his going about his daily business then it would be satisfied. Such a claimant, having taken his medication, could not be expected to await embarking upon his washing, dressing and toileting for a significant period for his medication to take effect. This, again, would seem to be in accordance with the overall legislative intention and seems to me to be consistent with the Government’s response.

33.

It may be, though, that with respect to at least some of the descriptors there will be a little more to consider. With respect to matters such as washing, dressing and toileting these are functions which, in general, will obviously need to be performed at some point during each 24 hour period. The position with respect to venturing out-of doors, for example, might be somewhat different. A person might, for example, simply have a lifestyle as a matter of choice not linked to disability which does not involve venturing out-of-doors during periods of dusk or darkness at all. So, in such a case, there may have to be a factual enquiry as to whether it is the disabilities or something else which is preventing such an activity. That is probably why Ms Pepper suggests, in this case, that there will need to be findings about the journeys the appellant embarks upon to and from work. However, it seems to me that detailed inquiries of that nature would be rare. Many people may tend to venture out-of-doors during the hours of daylight more than during the hours of darkness. Nevertheless, there are many reasons why a person might want to venture out after dark perhaps, dependent upon taste, to attend night school classes, or to visit the theatre, restaurants or perhaps even public houses. These activities might not be pursued every day and might indeed be pursued only rarely but if a person is effectively debarred from following the route of an unfamiliar journey or a familiar one without another person, an assistance dog or an orientation aid, which is in part what this appellant is contending, during the hours of dusk or darkness, then that person would not have to show, for the descriptor to be satisfied, that they would wish to undertake such a journey every day or anything like that but would only have to show that the particular disability which impacts upon them is sufficient to mean that that option is not, without the necessary assistance, available to them such that their lifestyle is restricted to more than a trivial extent.

34.

The key to all of this is the definition of repeatedly. In the examples above, it cannot properly be said that a claimant is able to wash, dress and attend to his or her toileting as often as the relevant activities are reasonably required to be completed if he or she is obliged to wait for a disruptive period of time until painkillers take effect. It cannot properly be said that a claimant is able to follow the route of a journey repeatedly if he or she cannot do so for a part of each day such that the claimant is obliged to live a restricted lifestyle.

23.

In the second decision, GG v SSWP (PIP) [2016] UKUT 0194 (AAC), Judge Hemingway explained the proper approach as follows at [7] (emphasis):

“7....The mere fact that a claimant might be sufficiently motivated to perform a task when there is specific or unusual impetus to do so does not, of itself, inform as to the overall position and the generality of the situation. So, it is not appropriate to limit the scope of the enquiry to such days. True an ability to perform a task without prompting when there is particular pressure to do so might be indicative of a claimant simply exercising a choice not to perform such a task on impetus absent days but that will not necessarily follow. What has to be undertaken is a more general and all-encompassing consideration. So, there needs to be an assessment, in such cases, of why it is that, on days when a claimant does not perform certain tasks, he/she does not do so. If it is because, without any specific impetus, he/she is not motivated to do so as a result of health difficulties and that such days exist for more than 50% of the time in the relevant assessment period, then absent other pertinent considerations, the relevant descriptor or descriptors will apply. That was not this tribunal’s approach, and I conclude that, in consequence, it did err in law.”

24.

Applying these principles to the present case, the First-tier Tribunal needed to consider the evidence as to why the appellant was not engaging with others on a daily basis and, if it was because she was seeking to avoid situations in which harm would arise to herself or others, the Tribunal needed to consider whether if she sought to engage with others on a reasonably frequent basis she would on the majority of days exhibit behaviour that posed a substantial risk of harm to herself or others.