Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 267 (AAC)

Fecha: 03-Jun-2024

Why I am allowing the appeal

Why I am allowing the appeal

The notice of appeal included a large number of complaints about the First-tier Tribunal’s decision. I granted permission to appeal on an unlimited basis, but observed that it was in particular arguable that the First-tier Tribunal had erred in law in the following respects:-

Daily living activity 1 (preparing food) – As the appellant has to wear earplugs in order to carry out the activity of cooking, it is unclear to me why at least 2 points have not been awarded for requiring an aid. The First-tier Tribunal has not addressed this in its reasons. The First-tier Tribunal has also failed to make any findings about the level of pain that the appellant is in while cooking as a result of noise. The First-tier Tribunal arguably erred in law by failing specifically to address the requirements of regulation 4(2A) in relation to this activity.

Daily living activity 2 (washing and bathing) – As I read the evidence in the bundle, the appellant does have to wear earplugs for washing and bathing (that was my inference as he did not refer to removing them for this purpose). Further, the appellant confirms in his notice of appeal that this is indeed the case. As it is, it seems to me to be arguable that the First-tier Tribunal in this respect reached an irrational finding of fact and has arguably erred in law in failing to award the appellant at least 2 points for requiring an aid for this activity. Further (again), the First-tier Tribunal has also failed to make any findings about the level of pain that the appellant is in while carrying out the activity of washing and bathing as a result of noise. The First-tier Tribunal arguably erred in law by failing specifically to address the requirements of regulation 4(2A) in relation to this activity.

Daily living activity 9 (engaging with others face to face) – The First-tier Tribunal awarded 2 points for requiring prompting as a result of his Asperger’s condition. The First-tier Tribunal decided to award no further points on the basis that he “does not have a diagnosed mental health condition” and there is “no indication that he suffers from overwhelming psychological distress when engaging with other people”. The Tribunal suggests that his problems with engaging may be “due to his personality and the fact that he is a natural recluse”. It is arguable that the First-tier Tribunal has erred by:

Failing to deal with the appellant’s evidence about the effect of his hyperacusis on his ability to engage with people;

ii.

Failing to consider whether what he describes could amount, at least on the majority of days (regulation 7(1)(a)) to overwhelming psychological distress. Even on his own account to the HCP, the appellant describes leaving the house and engaging with others to the minimal extent he does on only a minority of days in the week;

iii.

Failing to consider the appellant’s ability to engage with others in social contexts; ability to engage with professionals when necessary is not sufficient. This activity is dealing with a person’s ability to meet and engage with others face to face in a social context. This means considering whether the individual can, to an acceptable standard, engage face to face in a social context with adults they do not know well, including whether they can (a) interact with others in a contextually and socially appropriate manner; (b) understand body language and (c) establish relationships. See, eg., SF v SSWP (PIP) [2016] UKUT 543 (AAC) at [9]-[10] and HA v SSWP (PIP) [2018] UKUT 56 (AAC) at [13]-[19].

Mobility activity 1 (planning and following journeys) – Essentially the same points as I have identified above in relation to daily living activity 9 also apply in relation to mobility activity 1. The Tribunal has arguably erred in failing to consider whether the appellant is able to plan and follow journeys on the majority of days (regulation 7(1)(a)) or whether his sensitivity to noise means that he would suffer overwhelming psychological distress if he did so.