[2024] UKUT 283 (AAC)

This view inevitably involves a disjunctive interpretation of the word “or” in the term “written or printed” and in that regard is similar to the interpretation of the word or in the phrase "needs assistance to be able to get in or out of a bath or shower" adopted by Judge Rowley in relation to Activity 4, Washing and bathing in SP v SSWP [2016] UKUT 190 (AAC) (CPIP/2094/2015)  . The word "or" in that case is used in the disjunctive sense ie if a claimant cannot do one of the activities of (i) getting in or out of a bath or ii) getting in or out of a shower, they will satisfy the descriptor. The respondent has taken a similar approach to the interpretation of or in this context ie if a claimant cannot read and understand (i) basic or complex written information or (ii) basic or complex printed information this will be relevant to consideration of whether they can satisfy the descriptor. In my view this is a very persuasive submission indeed and is entirely consistent with previous case law, however given the FTT are in error of law on the grounds adumbrated above this point is not germane to my decision.

I agree with the Respondent’s submission that both the FTT’s findings of fact and adequacy of the written reasons are problematic in respect of this activity. Within the PIP2 questionnaire it states:

“[The appellant] is not very good at managing money. [The appellant] is not able to accurately calculate the cost of things she wants to purchase. She never checks the change she is given.” [ Question 12 of the claim form]

The functional history section of the HCP report reads “When going to the shop, she struggles to tell what something costs, usually when her mum gives her money for something, she overspends and needs to ask her mum for mum (presumably more). She tries to add up costs, but she forgets.” [page 50 FTT bundle]

While this evidence was accepted by the Tribunal, I agree with the respondent’s submission that it appears the FTT has relied on the appellant’s lack of experience and age in dealing with money as the reason for her difficulty, rather than her diagnosed ASD. Furthermore, it does not appear that the Tribunal have explored the appellant’s understanding of budgeting decisions, and the implications of the decisions made. At paragraph 42 of the written reasons, it states:

“J was only 17 at the time of the decision and would therefore not be particularly experienced at dealing with money. It is not surprising that she would rely to some extent on her parents. She does not at this stage need to manage the household budget or pay household bills. However, in the Tribunal’s judgment, she has the cognitive ability to manage finances and there are no other barriers to her doing so. She can calculate change and access her bank account. She can shop online. No learning disability has been diagnosed and she gave a detailed medical history to the HCP [52].” [para 42]

It does not appear that the Tribunal have had sufficient regard to the guidance set out by Upper Tribunal Judge Ward in SE v SSWP (PIP) [2021] UKUT 1 (AAC) regarding the clarification of ‘decisions involving' meaning an appellant must not only be able to do the calculation but must also have an understanding of the budgeting and spending outcome and the consequences of the decision;

“27.

The second point made by [the appellant], equally validly, is that the definitions refer to “decisions involving” the matters in limbs (a) to (c), or (a) to (b), of the respective definitions. This means not merely being able (in the case of simple budgeting decisions) to do the calculation, but to have sufficient understanding of the outcome and its implications to take a decision based on it. In CPIP/184/2016 Upper Tribunal Judge Grey QC explained (at [28]) that “The issue under Activity 9 [the judge must have meant Activity 10] is the ability to make “decisions” about financial issues, and this requires a focus upon intellectual capacity.

28.

It does respectfully seem to me that what is said at para 31 of CPIP/3015/2015 regarding a “simple budgeting decision” may fail to give sufficient weight to the requirement for a “decision”. Even though the paragraph references an earlier paragraph recording a submission by the Secretary of State that the activity is concerned with the “decisions” themselves, that was in distinction to the physical acts (e.g. seeing the price tag) involved in the process. While that is true, the requirement for a “decision” in my view is not so limited. I do however accept Ms Smythe’s submission that the focus of “simple budgeting decisions” is on the decision immediately in front of the person. Contemplating future purchases will tend to fall within limbs (c) and, to some extent, (a) of the definition of “complex budgeting decisions.”

As such, in my respectful view, I consider the FTT were in error of law on the basis of its failure to find sufficient facts, to provide adequate reasons and to apply the law correctly in accordance with the guidance provided by Judge Ward above in its consideration of this activity.

Although the FTT is entitled to afford weight to whatever evidence it chooses, where there is conflicting evidence, it must in the first instance explore and consider it in a holistic manner, make sufficient findings of fact and provide adequate reasons explaining why it preferred the evidence that it has. In this appeal the FTT has not done that. The FTT must also proceed with caution when extrapolating or “reading across” from activities to ensure the activity is genuinely comparable to the one it is considering in order to avoid comparing “apples with pears”.

For the sake of completeness, in relation to the appellant’s submission that the FTT failed to give sufficient consideration to the ASD diagnostic report dated 29^th August 2023, I note the FTT made a fleeting reference to it in paragraph 12 of the written reasons where it simply observed there was some “initial hesitancy” regarding diagnosis. This is essentially a diagnostic report and is therefore not written with the activities and descriptors comprised in PIP in mind. Having said that it may have potential relevance to a number of activities (not just activity 9 Engaging with other people). In my view the FTT’s cursory consideration of this significant piece of evidence was sub optimal however, given the errors of law identified above, I am not required to decide whether this in itself was an error of law.

I consider the errors of law identified above are material as they may impact on the assessment of the appellant qualifying for a standard or enhanced award of either or both components of PIP.For the purposes of completeness,I note the appellant has not made a further claim for PIP.

I find that the First-tier Tribunal erred in law as set out above. 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 her 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.