[2024] UKUT 211 (AAC)

The appellant told the Health Professional that he suffers with muscle spasms and pain in his legs. There is also a GP factual report (page 91 of the FTT bundle) which indicates the appellant suffers with tingling/ stabbing pain and a feeling of weakness in all limbs. In addition, the appellant’s representative advised the appellant’s leg goes dead on the toilet, so a grab rail was due to be installed on the left-hand side of the toilet (addition E, page 4).The FTT refers in paragraph 12 of its written reasons to the fact the appellant no longer drives a car alone, subsequent to an incident in October 2022, when his foot went into spasm causing him to crash into the car in front.

The First-tier Tribunal has provided comprehensive written reasons, however, when considering daily living activity 5, it found that the claimant’s leg “does give way occasionally and a rail will definitely assist on these occasions” (para 18) but the FTT then goes on to conclude the request for this aid “does not meet the legal test of being required for the majority of the time” and awards no points for activity 5.

This reasoning is problematic in several respects. Firstly, as the appellant’s representative pointed out, it appears inherently inconsistent with the FTT’s findings in the preceding paragraph where, in the context of the consideration of Activity 4 (Washing and bathing), the FTT found the Appellant “had no control over when this (muscle spasm) would exacerbate itself to the extent it made the activity (washing and bathing)....unsafe.” The FTT took the view an aid was required in order for the appellant to carry out this activity safely and awarded 2 points. The FTT reached a different conclusion in respect of Activity 5. While it is noted this is a different activity requiring some different functional ability, it is not clear why, given the FTT appear to have accepted the uncontrolled nature of the muscle spasm(s), a different conclusion was reached in relation to Activity 5. Specifically, in my view, insufficient findings of fact were made by the FTT in its consideration of this issue to support this conclusion. Without findings of fact about, inter alia, whether the appellant had sufficient warning to grab the rail in the event of the fall, it is not sufficient for the FTT to reason as the leg does not give way most of the time, he does not need to use an aid (in this instance a rail), most of the time. In this regard the FTT was in error of law.

I am also in agreement with both the appellant’s representative and the respondent that the FTT was in error in its (lack of) consideration of Regulation 4(2A) (a) safely. The First-tier Tribunal has focussed its reasoning in respect of activity 5 on the fact that the appellant’s leg gives way “occasionally” but not the majority of the time. While the FTT accepts by it’s finding the appellant’s leg gives way occasionally and he has no control over when this would exacerbate itself to the extent washing and bathing became unsafe, there is no explicit consideration in the FTT’s reasons of the issue of whether Activity 5 could be performed safely as per Regulation 4(2A) (a). This is not referred to in the FTT’s written reasons in respect of Activity 5. Although the First-tier Tribunal appear to have had some regard, in general terms, to the likelihood of harm occurring, it is not clear that it has considered the consequences that might occur if the appellant’s leg gave way. As such the First-Tier Tribunal has not applied the correct legal test when considering if the appellant requires the use of an aid, such as a grab rail, to carry out the activity in accordance with the “safely” requirement in regulation 4(2A). On this basis the FTT is in error of law. Given the appellant scored 6 points for the activities of daily living, both errors of law identified above are material as they may have impacted on the appellant qualifying for an award of the daily living component of PIP.

Given my reasons above I am not required to consider the appellant’s first ground of appeal. I indicated in my grant of permission it was my view this ground had less merit than the second ground advanced. This remains my view.