[2024] UKUT 185 (AAC)

Mr S’s grounds of appeal for his application to the Upper Tribunal for permission to appeal against the First-tier Tribunal’s decision were set out in his Form UT1 and associated correspondence, as supplemented by his oral arguments at the permission hearing. As noted, he was mainly concerned with the Tribunal’s decision to refuse to make any award of the PIP daily living component.

As I explained at the oral hearing, and as Judge West had explained in earlier directions for the oral hearing, a disagreement over the facts is not sufficient to give permission to appeal. On that basis at least the grounds of appeal as set out on Form UT1 did not appear at first sight to be very promising.

However, I still consider it is arguable that the Tribunal erred in law. It is arguable that the Tribunal did not make sufficient findings of fact about the steps needed and the time taken to manage Mr S’s admitted condition of double incontinence. Alternatively, the Tribunal may not have given adequate reasons for its decision.

In particular, it is questionable whether the Tribunal found sufficient facts or gave adequate reasons as regards the regulation 4(2A) criteria of “acceptable standard” and “reasonable time” in para 13 of the statement of reasons (SoR).

As regards an acceptable standard, the Tribunal’s explanation seems to be focussed exclusively on what is or is not covered by the term “cleaning oneself afterwards”. It does not in terms appear to address whether Mr S can attain an acceptable standard in doing so, given the practical circumstances and difficulties he so vividly describes.

As regards reasonable time, there is no finding beyond that Mr S can manage his cleaning in a reasonable time period. But as Mr S argued at the oral permission hearing, the issue is not what he can do with his arms and hands but rather what he has to do by way of cleaning afterwards when compared with what a person without such a disability has to do, having been to the toilet (and as such the Tribunal may have lost sight of the respective time differential involved). I have to say Mr S seems to me to be at an extreme end of the spectrum of having difficulties with daily living activity 5. Given the likely time involved in cleaning up, especially when on the road at work, I am struggling to see how it could not take him at least as twice as long as a person without his disability. On that basis it is at least arguable that he should qualify for 8 points under descriptor 5f.

In this context it may be the decision of Upper Tribunal Judge Gray in the decision GP v SSWP (PIP) [2016] UKUT 444 (AAC) is relevant, at least by analogy. That was an appeal to the Upper Tribunal by the Secretary of State. The claimant in that case suffered from severe OCD. The First-tier Tribunal awarded him a total of 12 daily living points. This included 8 points for descriptor 4g, namely that the claimant could not (applying regulation 4(2A) wash or bathe at all within the terms of the legislation (because he took so long). According to Judge Gray (at paragraph 12):

The Secretary of State’s appeal in GP v SSWP (PIP) was dismissed on another point. However, there is nothing in Judge Gray’s decision to suggest that she considered there was anything amiss with the FTT’s conclusion on the facts about daily living activity 4g.

All in all, I am satisfied there is sufficient uncertainty here about the Tribunal’s approach to regulation 4(2A) to justify giving permission to appeal.