[2025] UKUT 240 (AAC)

I will take this ground of appeal first because, as with Judge Hemingway in CB, I have less to say about it and it featured less in the arguments before me. Furthermore, as the appeal is being disallowed I do not need to concern myself with directing a new FTT on what the law requires in respect of dentures as an aid to taking nutrition.

The Secretary of State argues in essence that even if the FTT erred in law in failing to consider properly on the evidence whether the appellant’s dentures were an aid to his taking nutrition (most notably in terms of his chewing food), an award of two points for daily living descriptor 2(b)(i) would not itself affect the FTT’s decision as, the arguments under daily living activity 1 and the other grounds of appeal apart, it would still have left the appellant with a daily living score of less than 12 points. In other words, any error of law the FTT may have made in its approach to whether daily living descriptor 2(b)(i) was met was not a material error of law as it would not change the standard daily living component award which the FTT upheld.

I agree. The FTT upheld an award of the daily living component of PIP of 9 points: 2 points for daily living activity 1, 3 points under daily living activity 4 (washing and bathing), and 2 points each under daily living activities 5 (managing toilet needs) and 6 (dressing an undressing). The high point of the appellant’s case under daily living activity 2 is he needs to use an aid (his dentures) to take nutrition. That could only lead an award of another 2 points, and so a daily living score of 11 points. 12 points are needed for the enhanced rate of the daily living component of PIP. If it was the case that any of the other grounds of appeal succeeded then an error of law by the FTT in its consideration of the use of dentures as an aid to taking nutrition could be material, but none of the other grounds of appeal do succeed (for reasons which I explain below). In these circumstances, I limit what I say about dentures as an aid to taking nutrition. The point is better decided in a case where it may affect the result.

The Secretary of State’s written submissions on the appeal say the following about dentures being an aid to taking nutrition.

“4.

…it cannot be said in general that dentures are an aid to take nutrition…Whether dentures are an aid to the activity (that is, being able to ”chew and swallow food and drink”) depends on the facts of each particular case. Further fact finding would be required in the Appellant’s case to determine his ability in this respect, including his need for dentures and the aid which they give him for the purposes of this activity.

28…..the role of dentures as a general matter in the activity of taking nutrition is a subject which requires expert evidence from a suitably qualified expert in dentistry. There are issues of functionality surrounding dentures and what, if any, contribution they make to chewing and swallowing and the taking of nutrition on which only a dentist can give evidence.

29.

That said, there would have to be adequate findings in fact in a particular case before it would be proportionate to obtain an expert opinion from a dental expert, for the expert to be able to give both a general opinion and one which is of use in the particular case. Given that there are inadequate findings of fact in the Appellant’s case on his need for dentures and their role for his ability to take nutrition, it is not appropriate in this appeal to obtain an expert opinion.

30.

As a general matter, but subject to any contrary expert view, there will be an obvious difference between a person who has a full set of dentures and someone who only has a plate with one or more dentures. There will also be cases where a denture (or dentures) mainly serve cosmetic ends and have no relevance to the activities of chewing or swallowing food. Detailed fact finding is required about dentures in an individual case before any view could be taken about their role as an aid to taking nutrition.

31.

Furthermore, a person’s needs for chewing or swallowing and what can or can’t help with this are factual issues, requiring an assessment of the facts and personal needs of different cases. Dentures may be able to “help with function as in chewing ability” but, then again, dentures in many cases will not assist adequately or at all with chewing or swallowing. There may also be issues in particular cases about the implications of bone absorption, or bone loss leading to receding gums, which factors will inevitably be relevant to the function of dentures for the purposes of chewing or swallowing to take nutrition.

32.

In the Appellant’s case, it is notable that he has had dentures for a long period without, apparently, interfering with the type of food he eats. No issue in this respect was raised during the HCP assessment but only during the FTT appeal. It is not possible to address the contribution of dentures, if any, to taking nutrition in the Appellant’s case without much more detailed factual findings on this activity. That being so, the Respondent respectfully declines to make any further submission on the general utility of dentures to taking nutrition.”

The appellant’s case on dentures as an aid to taking nutrition relies on the decision of the Upper Tribunal in CB. However, CB does not decide whether dentures may amount to an aid to taking nutrition. The appeal in CB was allowed on the basis that the First-tier Tribunal had erred in its approach to toileting and that was the material error of law. Moreover, although Judge Hemingway went on to give his (self-styled) opinion about the PIP activity of ‘taking nutrition’, that was only on whether, whatever the device was that said to aid taking nutrition, it had to assist both with chewing and swallowing. At highest, as Judge Hemingway made clear in paragraph [10] of CB, the decision in CB proceeds on no more than an assumption that in principle dentures can be an aid or appliance for taking nutrition; it does not decide that dentures are an aid or are capable of being an aid.

However, the Secretary of State does not dispute that in principle dentures may be an aid to taking nutrition and could have been an aid in this case, and it seems to me that that must be right. To take perhaps the most obvious example, if a person through an infectious illness or cancer loses all of their teeth and has them replaced with dentures, that person on the face of it will (per regulation 2 of the PIP Regs) have an impaired physical function of chewing and the dentures will amount to a device which “improves, provides or replaces” that impaired function. The gap for the FTT in terms of dentures being an aid to taking nutrition was an evidential one rather than a legal one of dentures in principle not constituting an aid. Both parties agree the FTT erred in law in not exploring that evidence further, but as I have explained above that error was not a material error of law.

The Secretary of State adhered at the hearing before me to her argument that expert evidence would be needed from an expert in dentistry before a fact-finding decision maker could decide whether the dentures in fact constituted an aid to taking nutrition (and in particular chewing). I am not persuaded why this should be so. If the Secretary of State wishes to seek such evidence in any individual case or class of cases, that is a matter for her. However, the First-tier Tribunal deciding PIP appeals is an expert tribunal and like any issue of fact it ought to be for the First-tier Tribunal to decide on the evidence before it, in a case where the issue is raised, whether an appellant’s dentures are an aid to the appellant taking nutrition. Indeed, the Secretary of State accepts that the FTT failed to take such sufficient evidential steps in this case.

I am not clear about the relevance of the appellant having had his dentures for a long time to whether they would constitute an aid to his chewing and swallowing food, but as the point was not argued out before me I say no more about it. It does not seem to me, however, that the analysis in CW v SSWP (PIP) [2016] UKUT 197 (AAC); [2016] AACR 44 would apply to exclude dentures as an aid as, unlike a bed, dentures are not usually or normally used by someone without any limitation in carrying out the activity of taking nutrition. Nor did the Secretary of State argue that the CW analysis would apply.