[2024] UKUT 211 (AAC)

In conclusion, the meaning of “safely” in regulation 4(2A) and as defined in regulation 4(4) is apparent when one considers the legislation as a whole and with the assistance of the approach by the House of Lords to the likelihood of harm in the context of protecting people against future harm. An assessment that an activity cannot be carried out safely does not require that the occurrence of harm is “more likely than not”. In assessing whether a person can carry out an activity safely, a tribunal must consider whether there is a real possibility that cannot be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case. It follows that both the likelihood of the harm occurring, and the severity of the consequences are relevant. The same approach applies to the assessment of a need for supervision.”

In line with the above if, for the majority of days, an appellant was unable to carry out an activity safely then the relevant descriptor would apply. A point scoring descriptor may apply even though the harmful event or the event which triggered the risk occurred on less than 50% of the days. What is important is whether there is a real possibility of harm occurring that cannot be ignored.

In this case the FTT has failed to explicitly state in its written reasons whether regulation 4(2A)(a) safely had been considered in the context of Activity 5. It also failed to make sufficient findings of fact on which to base its conclusions. Finally, it either failed to consider regulation 4(2A) (a) in the context of this activity, or if it did so, by focussing on the occasional nature of the muscle spasms, it conflated the consideration of regulations 4 and 7 with the result that the incorrect test was applied in relation to regulation 4(2A)(a) safely and, axiomatically, priority was incorrectly accorded to regulation 7 (the 50% rule).

I find that the First-tier Tribunal erred in law as set out above. There is no need to rule on the remaining ground (the appellant has not requested that the Upper Tribunal does so). The First-tier Tribunal’s decision is set aside.

The appellant did not object to the Secretary of State’s invitation to the Upper Tribunal to remit his case to the First-tier Tribunal for re-hearing and given further findings of fact are required, it is appropriate to remit the case back to the FTT. As a matter of law, the next tribunal cannot, in its reasoning, take into account the findings of fact or conclusions of the tribunal whose decision I have set aside. The undetermined grounds of appeal are just that – undetermined.

Although I am setting aside the previous Tribunal’s decision, I am making no finding, nor indeed expressing any view, on whether the appellant is entitled to PIP (and, if so, which component(s) and at what rate(s)). That is a matter for the judgment of the new Tribunal. That new Tribunal must review all the relevant evidence and make its own findings of fact.