[2024] UKUT 283 (AAC)

In my respectful view, which again agrees with the respondent’s submission, the FTT has not been mindful of the guidance set out by Commissioner Stockman in C25/18-19(PIP), paragraph 20:

“It is legitimate for a tribunal to consider how the actions involved in driving a car may read across into the scheduled daily living and mobility activities. Nevertheless, that general principle is subject to the qualification that the activity in question is genuinely comparable and that it is done with the same level or regularity as the scheduled activity. The ability to perform daily living activities has to be addressed within the context of regulation 4 and regulation 7 of the PIP Regulations.”

While of persuasive authority, the view that in order to “read across” from the ability to perform one activity to the ability to do another, it seems eminently sensible that the activity is genuinely comparable in terms of, for example, movement(s) required, cognitive demands etc in addition to, as is explicitly referred to by Commissioner Stockman, the degree of regularity with which it is performed. At first blush it is difficult to see how passing “key” GCSEs, playing video games and the inevitably speculative consideration of driving lessons which may occur at a future date fall within the “genuinely comparable” category in the context of assessing the appellant’s ability to prepare and cook a simple meal.

Furthermore, I am also in agreement with the respondent’s submission that it is not apparent from the written reasons that the FTT have made sufficient findings of fact to determine if the appellant can complete daily living activity 1 safely in accordance with Regulation 4(2A) of the Social Security (PIP) Regulations 2013, considering the evidence proffered that the appellant has burned herself and needs reminding if something is hot. For these reasons the FTT is in error of law in regard to making sufficient findings of fact, providing adequate reasons and extrapolating beyond the bounds of what is “genuinely comparable” in relation to its consideration of this activity.

In regard to daily living activity 8, reading and understanding signs, symbols, and words, within the PIP2 questionnaire the appellant’s mother states she required blue overlays as an aid in order to read the written word, these were no longer provided after and during GCSEs and the appellant then struggled but was provided a ‘reader’ and a laptop.

a.

“[The appellant] has always struggled with reading. She skips words when reading and then has to re-read the subject being read again before she can process it. Due to inattentiveness [the appellant] will often loose her place when reading. [The appellant] finds reading a chore and will put off completing subjects/homework.” [Question 10 claim form, page 29 FTT bundle].

b.

“Difficulty around reading handwriting, she no longer gets print on blue paper. When she did her GCSEs, she didn't have the blue overlays, she struggled with reading. When she is scrolling through social media, she is able to read it but it goes back out of her head.” [page 50, functional history section of HCP report]

The appellant needed to use a laptop with a blue background and a large font. She also required additional (one to one) support at college.However, it is my view that the Tribunal have failed to make sufficient findings of fact to ascertain whether an aid for this activity is reasonably required. The somewhat blinkered approach of the FTT in this regard is set out at paragraph 38 of the written reasons:

“The Tribunal regards it as significant that J does not use blue overlays at college. That suggests that she does not need them, even if they may have helped a little at school. She does not, therefore, require an aid or adaptation within descriptor (b).”

In my judgment, the FTT has failed in its inquisitorial duty to make sufficient findings of fact as to whether the appellant might reasonably require an aid to assist her with reading. It is not sufficient to simply rely on the suggestion that an aid is not required, it is incumbent on the FTT, as part of its inquisitorial role, to make the necessary findings of fact that will allow it to come to a reasoned, rational conclusion on this point. The FTT did not sufficiently explore how a blue overlay might improve the appellant’s ability to understand and read the written word. In my respectful view, which again accords with the view of the respondent, it has failed to investigate and make sufficient findings of fact and is in error of law in this regard.

The respondent has also submitted the tribunal appear to have relied on the appellant using a laptop at college to demonstrate her ability to complete daily living activity 8 but that the Tribunal should also have considered the appellant’s ability to read printed information. Schedule 1 Part 1 of the Social Security (Personal Independence Payment) Regulations 2013 provides;