[2024] UKUT 283 (AAC)

The appellant’s grounds of appeal, as set out by her representative, relate to the activities of Preparing food, Washing and bathing, Dressing, Reading, Making budgeting decisions and Planning and following journeys. In general terms it is argued the FTT provided inadequate reasons for its findings and failed to consider Regulation 4(2A) of the Social Security (PIP) Regulations 2013. It is also submitted on behalf of the appellant the FTT failed to consider whether an aid was reasonably required in the context of Activity 8 (Reading), that the appellant’s mum had applied to be her appointee in the context of Activity 10 (Making budgeting decisions) and that the FTT had failed to consider the totality of the evidence, in particular the ASD assessment report of 29/8/23 and had in effect adopted a “blanket assumption” expert evidence, particularly that of the HCP, had more value than that of a lay person (in this case the appellant and her mother) which was contrary to the decision of Judge Ovey in CE V SSWP. Unfortunately, neither the citation nor a copy of this decision was provided with the appellant’s written grounds of appeal.

I granted permission to appeal on 22^nd April 2024. In doing so I suggested the FTT may have been in error of law by failing to provide adequate reasons, to fully consider Regulation 4(2A) Social Security (PIP) Regulations 2013, and to consider the totality of the evidence. The respondent has forwarded a submission supporting the appeal.

I have decided this case on the papers as I consider I have sufficient information to do so fairly, bearing in mind the overriding objective. Neither party requested an oral hearing. I have provided full reasons at the appellant’s request, and I also consider it may be helpful in assisting Tribunals in making specific findings of facts, how this might be reflected in the written reasons and the pitfalls of elliptical extrapolation.

The appellant has been diagnosed with autism spectrum disorder (ASD) and suffers from significant social anxiety.

In regard to this activity, the appellant and her mother submit that due to the experienced functional limitations from ASD, the appellant requires supervision and prompting when preparing a simple microwave meal in order to meet the provisions of Regulation 4(2A) of The Social Security (Personal Independence Payment) Regulations 2013 (‘PIP Regulations’), particularly safely.

“[The appellant] needs supervision and prompting from another person when preparing a simple microwave meal or snack, for example she is able to use a microwave and kettle to prepare snack and microwave meals but needs to be told how long the microwave needs to be set to as she cannot read and make sense of the cooking instructions on the item being prepared, [the appellant] needs to be reminded that the food tray coming out of the microwave will be hot and to be careful. It’s the same thing with the cooker [the appellant] needs to be told what the oven knob needs to be set on. She needs to be reminded to set a timer she cannot tell if the food is cooked or needs a bit longer after the timer has ended. She cannot remove the food from the oven safely without the supervision of someone else. [The appellant] would struggle with preparing a more complex meal unsupervised as she struggles with starting tasks that require organising, she is also easily distracted and would leave for example something in the oven and forget about it.” (Question 3 of the claim form, page 14 of the FTT Bundle)

“She (the appellant) doesn't know how to cook but she has tried to attempt to cook with the help of her mum in case she messed up. She would be able to make herself a microwaved meal, she would ask her mum how long to put something in for as she gets confused with instructions and is unsure what buttons to press on the microwave. Had incidents where she burnt herself in the past, last time this happened was 2 months ago.” (HCP report at page 49, FTT Bundle]

While the FTT acknowledge the evidence submitted by the appellant and her mother in the PIP2 questionnaire and the HCP report in regard to her functional limitations due to her neuro-divergent condition, I am in agreement with the respondent that the FTT has not, in my respectful view, provided sufficient reasons for its decision to reject this evidence. The FTT is entitled to reject what evidence it (rationally) choses, but it must say why it is doing so.

The FTT’s reasoning in respect of the appellant’s ability to do other activities and the somewhat strained extrapolatory exercise it has carried out in respect of the relevance of these activities to preparing food is also problematic. In my view the FTT has not adequately explained how passing “key” GCSEs, playing video games and driving lessons which will take place in the future demonstrates the appellant’s ability to cook and prepare a simple meal. Within the written reasons it states at paragraph 19: