[2025] UKUT 240 (AAC)

It is perhaps worth emphasising two factual perspectives for this argument. The first is that the FTT agreed with the Secretary of State that the appellant needed an aid or appliance to be able to either prepare or cook a simple meal. In other words, daily living descriptor 1(b) was met. To score two more additional points would require the appellant to have needed supervision or assistance to either prepare or cook a simple meal, and in the context of this ground of appeal that would seemingly be supervision (or assistance) to mobilise (or carry food) in the kitchen. The second factual point is that the FTT correctly (in the sense of lawfully) decided that the appellant was able to stand and then move with his crutches in excess of 20 metres. Given the extent of the appellant’s ability to mobilise and that the FTT were entitled to find that the appellant did not need someone to keep an eye on him because of, inter alia, falls, even if mobilising were part of the assessment under daily living activity 1, it may be unlikely on the evidence the appellant would have qualified for four points under descriptor 1(e): see relevantly Upper Tribunal Judge Butler’s decision in RM v SSWP (UA-2024-000709-PIP) at paragraphs [34]-[35]. On the other hand, if the FTT never asked itself about mobilising in the kitchen, or perhaps more importantly did not address whether the appellant could carry (in the sense of walk holding) foodstuffs in the kitchen, that may have constituted an error of law if daily living activity 1 includes mobilising/carrying in the kitchen.

The appellant’s case before the FTT under daily living activity 1 was that he was unable to carry (in the sense of walk holding) food which had been peeled and chopped to the sink to wash it, carry (in the same sense) food from the sink to the table or cooker, and carry (again in the same sense) food from the cooker to the sink (e.g., to drain pasta). The key aspects of the FTT’s rejection of this argument were its view that JMcG did not assist on the ‘carry’ point and that neither “prepare” or “cook” under daily living activity 1 included carrying food between various places within the kitchen. (In addition, the FTT found there was no need in fact for the appellant to carry a pot of boiling water from the cooker to the sink.) In essence, I agree with the FTT.

In the grounds on which permission to appeal was granted, the argument focused on whether daily living activity 1 includes consideration of a person’s ability to move around a kitchen.

At the oral hearing before me the argument for the appellant changed somewhat. This resulted in the Secretary of State needing time after the hearing to address the revised argument and for the appellant to then reply to the Secretary of State’s response. In fact, the appellant’s position had changed in a written submission dated 27 November 2024 but, for reasons which were never properly explained, that written submission (on which the appellant’s representative was assisted by CPAG’s Upper Tribunal Project) was not filed until two days before the hearing and served on the Secretary of State’s representative until the day before the oral hearing. Despite this unexcused omission, I regret to have to record that the appellant’s representative did not provide his reply to the Secretary of State’s post-hearing response within the extra time with which that representative had been provided. The appellant’s reply was due by 4 April 2025 (the date his representative had sought) but was not in fact provided until either 7 or 8 April 2025. The appellant’s representative provide no explanation why these extra three or four days were needed. Despite this, I extend time to consider all the written arguments.

Three arguments were made on behalf of the appellant at the oral hearing.

The first argument was that the FTT had misdirected itself in law in holding that carrying food around a kitchen (and implicitly moving around the kitchen) did not fall to be considered under daily living activity 1 because it had wrongly focused exclusively on the terms “prepare” and “cook”. This led the FTT, so the appellant argues, to mistakenly decide that “if a person can both “prepare” and “cook” food they would not score points (or if they could do that with an aid they score just 2 points)”. The appellant’s argument continues:

“10.

What that approaches fails to appreciate is that the test is not whether someone can “prepare food” and “cook food”. Rather it is essentially whether they can produce a simple meal by preparing and cooking food. That connects the tasks of “prepar[ing] food” and “cook[ing] food” such that they must be done to produce a specific result.

11.

Once this connection is appreciated, then it is obvious that the task would require moving food between the station where food is heated at waist height and the station where it is made ready to be so heated. Those are the things that must be done in reality to achieve a connection between the preparation of food and its cooking so as to produce that result.

I am not persuaded by this argument. In my judgement it is wrong for two, related reasons. First, the statutory test in daily living activity 1 does not use the phrase “produce a simple meal”. No such phrase appears in daily living activity 1 and the word “produce” does not feature at all in the activity or the descriptors within it. Nor is this language needed as a gloss to the statutory wording and, more importantly, to apply such a gloss would materially change the focus of the statutory. Second, and following on from the very last point I have just made, the language of daily living descriptors 1(b) and 1(d) to 1(e) is, contrary to the appellant’s argument, not about, or testing, an ability to prepare and cook a simple meal. As the statutory language makes plain what is being tested is whether the claimant needs an aid, prompting or supervision or assistance to be able either to prepare or cook a simple meal. In other words, the language is disjunctive and not conjunctive.

If, for example, the claimant needs an aid to cook a simple meal, they will score two points under descriptor 1(b) regardless of whether (or not) they also need an aid to ‘prepare’ the food for a simple meal using fresh ingredients. If the claimant does not need an aid (or prompting or supervision or assistance) either to cook a simple meal or to prepare the food, it follows that they can, per daily living descriptor 1(a), prepare and cook a simple meal unaided. Likewise, if the claimant cannot either prepare food or cook a simple meal even with an aid, prompting and supervision or assistance, descriptor 1(f) will be met as the claimant cannot, under the statutory wording, prepare and cook food. However, both in the case of descriptor 1(a) and 1(f) the answer is not arrived at by asking the question can the claimant produce a simple meal. The answer instead is arrived at by asking two separate questions: (i) can the claimant prepare (the food for) a simple meal and (ii) can the claimant cook a simple meal. And, as far as descriptors 1(b) and 1(d)-1(e) are concerned, to find an award of the relevant points score to be merited it may be necessary to answer only one of those two questions.

There is therefore nothing in the statutory language which, as the appellant argues, ‘connects’ the discrete daily living activity 1 processes of ‘preparing food’ and ‘cooking a simple meal’ to the specific result of producing a simple meal. And with that the foundation for the appellant’s argument, that the prepared food needs, under daily living activity 1, to be moved to the area where it is to be cooked falls away. The two processes of ‘preparing (the food for) a simple meal’ and ‘cooking a simple meal’ are separated out under daily living activity 1 and, as a result, do not involve moving or carrying between them as part of the tests under the daily living descriptors.

Nor do I find anything in the Government’s response to the consultation on the Personal Independence Payment assessment criteria and regulations of 13 December 2012 which supports a need to read the statutory wording of PIP daily living activity 1 in the manner for which the appellant contends. Even assuming that this response can be used as an aid to statutory construction, it would fall into being a secondary aid: per paragraph [30] of R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255. More importantly, perhaps, there is nothing in that Government’s response which addresses the wording of the descriptors in daily living activity 1 and whether descriptors 1b) and 1(d) to 1(e) are to be read conjunctively or disjunctively. And the language in the response that “[t]he activities have been selected to cover the key activities that are essential to everyday life, cumulatively providing a good proxy for individuals’ levels of participation”, does not assist one way or the other. This statement is referring to the PIP activities generally and not any one of those activities or the descriptors within an individual activity. Moreover, it is not obvious that the structure of the descriptors which I have found applies would necessarily offend against a proxy for claimants’ levels of participation in acts of daily living.

The appellant also relies on comments I made in paragraph [47] of KJ v SSWP (PIP) [2017] UKUT 358 (AAC). The ratio of the decision was that daily living activity 1 is not concerned with preparing or cooking the “right” or “dietarily appropriate” food. I did then say, arguably in passing, that the tasks needed to prepare a simple meal for cooking included “lifting and carrying”. However, I was not deciding that point in KJ and KJ was not about whether the focus of the descriptors under daily living activity 1 was on ‘producing a simple meal’. KJ does not therefore assist the appellant on his main argument.

The appellant’s second, and alternative, argument is foreshadowed by my comment in KJ. It is an argument that mobilising or carrying is part of the ‘preparing food’ bit of daily living activity 1. The argument is that Part 1 of Schedule 1 to the PIP Regs sets out that ‘prepare food’ means “make food ready for cooking or eating” and making food ready for cooking must mean moving (by carrying the prepared food) to the cooker to heat it at or above waist height.

It is perhaps worth noting at this stage, although it is a point of more general consideration and so also may impact on what I have said in paragraphs 44 and 45 above, that the definitions in Part 1 of Schedule 1 to the PIP Regs do not perhaps on first reading fit easily with the wording used in daily living activity 1 in Part 2 of Schedule 1. Nor does daily living activity 1 perhaps use uniform wording. The activity with which daily living activity 1 is concerned is “preparing food”. However, save for descriptor 1(f), none of the descriptors in daily living activity 1 use the word “food” or the phrase “prepare food”. Descriptor 1(c) apart, on the face of the language of descriptors alone that might suggest that what is being tested is a claimant’s ability to “prepare a simple meal” or “cook a simple meal”. A “simple meal” is defined in Part 1 of Schedule 1 as meaning “a cooked one-course meal for one using fresh ingredients”. It makes no sense, however, to read “prepare a simple meal” in descriptors 1(b) and 1(d)-(e) as meaning prepare a cooked one-course meal, as the cooking of the simple meal (by heating it at or above waist height) is dealt with separately.

The answer to this possible difficulty, it seems to me (although I should caution that I need did not receive any direct argument on this particular point of statutory construction), is to read in the definition of “prepare” found in Part 1 of Schedule 1 to the descriptors under daily living activity 1. This definition provides that the word “prepare”, when it appears in the rest of Schedule 1 in the context of food, means “to make food ready for eating or cooking”. The disjunction between “eating or cooking” is important as it indicates that daily living activity 1 is not focused solely on preparing or cooking a cooked one-course meal for one using fresh ingredients, to which making the food ready for cooking would be a constituent part of preparing the one-course meal to be cooked. Daily living activity 1 also involves consideration of whether the claimant has the functional ability to make food ready for eating, not just making it ready for cooking.

If this is the correct construction of daily living activity 1 and its descriptors, its focus is therefore not just on preparing the food for, or cooking, the simple cooked meal. A claimant may also score points if instead, and by way of using descriptor 1(b) as the example, they need an aid or appliance to be able to make food ready for eating. And given the definition of the word “prepare” in the descriptors in daily living activity 1, this must mean, or at least include, making uncooked food, or food which does not need to be cooked, ready for eating. In other words, what is being prepared for eating is not the simple cooked meal. And if this is the correct construction of daily living activity 1, it provides a further reason for rejecting the appellant’s argument that daily living activity 1 is about “producing a simple meal by preparing and cooking food”. The tests in descriptors 1(b) and 1(d)-1(e) not only divide off the cooking from the preparing for the reasons I have given already, but also because the act of “preparing” under those descriptors need not involve cooking the food at all. This therefore further undermines the appellant’s argument that moving (by carrying) the food to be cooked is a necessary part of the functional abilities which daily living activity 1 is assessing.

Returning to the appellant’s second argument, I do not accept it. It is useful to consider the part of the definition of “prepare” which, as has just been highlighted, is “to make food ready for eating”. Nothing in the process or act of making food ready for eating necessarily involves taking it to the place where it is to be eaten. The sandwich a person makes for someone else is just as much ‘ready for eating’ if it is on plate on the worktop where it has been made as it is when the person for whom it has been made comes to collect it. The act of collecting the sandwich, or carrying it to the person for whom it has been made, does not make that food any more ready for eating than when it had been made. If that is the case for making food ready for eating, I do not see why a different result should obtain on the statutory language where that statutory is about making the food ready for cooking.

The focus of the statutory test is on preparing the food, and, in the context of the cooked simple meal, that means making the food ready for cooking. The acts involved in making the food ready for cooking are separate from the acts involved in cooking the food, for the reasons I have given above. The acts involved in preparing food for cooking would not in my judgement involve moving the food to the place where it is to be heated (at or above wait height), as that is not about preparing the food. Likewise, it seems to me, making the food ready for cooking is about readying the food for the (separate) act of cooking it, which will involves acts such as peeling and chopping the food. It does not entail then carrying it to the place where it is to be cooked. The food will be ‘prepared’ and ‘ready for cooking’ once it has been washed, peeled and chopped, or unpackaged and chopped, and that will be so, in my judgement, before it may then need to be moved to the cooker to be cooked. Putting this perhaps another way, as matter of ordinary language the food will be ‘prepared’ and ‘ready’ for cooking before it may need to be moved (or carried) to the place where it is to be cooked. That food will not be able to be cooked before it is moved to the place where it is to be cooked, but as food it will have been ‘prepared’ and ‘made ready’ for cooking. Furthermore, had the obvious and discrete function relating to cooking a simple meal of carrying the prepared food to the place where it was to be cooked been intended to be included in the statutory test, such wording could and should have been used. As it is, I do not see why such a function should be shoehorned into statutory language which does not as a matter of ordinary language include such a function.

Nor does anything said in JMcG affect or alter this analysis. To take the most obvious point first, JMcG does not decide that ‘carrying’ is part of the functional tests under daily living activity 1. It was deciding a different issue: whether an aid to get items out of a cupboard was an aid needed to make food ready for cooking. Secondly, nothing in what JMcG says about the tasks involved in making food ready for cooking being only those tasks immediately preliminary to the process of heating food at or above waist height, necessarily points to carrying the (prepared) food to the place where it is to be heated. It is instructive that the examples of making food ready for cooking provided for in paragraph [35] of JMcG focus (rightly) on making the food ready for being heated at or above waist height. For the reasons I have sought to explain in paragraphs 48-49 above, that does not involve carrying the (prepared) food to the place where it is to be cooked.

The third argument made by the appellant was that Judge Butler’s decision in the RM had decided that mobilising can be considered under daily living activity 1. I do not accept this. It is plain in my judgment that RM proceeds on no more than an assumption that mobilising may be relevant to the activity of ‘preparing food’: see the opening words of paragraph [36] of RM. As RM has not been published, I set out the key passages from it.

“Appeal ground 1: (preparing food – explaining apparent conflict between awarding descriptor 1.e and mobility descriptor 2.e)

32.

While I am not bound by the decision in JMcG, as Mr Martinez concedes, it is a decision of persuasive value. It considers a test for PIP in Northern Ireland that uses identical legislative language to the PIP test in England, Wales and Scotland.

33.

In JMcG, Commissioner Stockman explained that the definition of “cook” in Schedule 1 to the 2013 regulations confirmed it relates to heating food at or above waist height. Commissioner Stockman also decided that the wording “to make food ready for cooking”, used to define “prepare” in Schedule 1, has a narrow meaning, which is a range of tasks immediately preliminary to the process of heating food at or above waist height. He described examples of these at paragraph 35 of his decision.

34.

Mr Martinez argues that it would be impossible for someone to have their sink, kitchen equipment and cooker all within reach while seated at a perching stool. He therefore argues that there is inconsistency between the Tribunal accepting that RM should score mobility descriptor 2.e and the Tribunal deciding that she could carry out all those preliminary steps.

35.

In my assessment, this argument might have had more force if the Tribunal had awarded RM mobility descriptor 1.f (cannot, either aided or unaided: (i) stand; or (ii) move more than one metre). However, the Tribunal decided that RM should be awarded descriptor 2.e, which is awarded where a person can stand and then move more than one metre but no more than 20 metres, either aided or unaided. The Tribunal acknowledged expressly that RM experienced pain when walking, and that as a result, it decided she could not undertake the activity of walking 20 metres to an acceptable standard (paragraph 51 of Statement of Reasons). The Tribunal decided RM was able to walk a distance of less than 20 metres once it took into account the pain she experienced when moving around. In my assessment, this defeats Mr Martinez’s argument that some level of mobilising must be inherent to both the preparation and cooking parts of the test and that the Tribunal had accepted RM was unable to achieve even that level of mobilising for the purpose of mobility activity 2.

36.

In any event, if one assumes that the actions of preparing and cooking a simple meal do involve elements of mobilising that RM could not achieve as a result of the effects of her patella difficulties, the Tribunal awarded RM descriptor 1.e, and explained that it considered she could prepare and cook a simple meal with some supervision and some assistance. The word “assistance” is defined in Schedule 1 to the 2013 regulations as “physical intervention by another person”. I am satisfied the Tribunal’s choice of descriptor 1.e allowed for another person to undertake mobilising as part of the activity if required and if RM was unable to perform it. The Tribunal explained that it had found that RM would also need to use aids, such as a perching stool, in addition to receiving assistance (my emphasis added). Regulation 7(1)(b) of the 2013 regulations allows for this approach to be taken.

37.

The Tribunal made factual findings that RM’s patella fracture caused her severe pain, and that she experienced daily headaches with pain and associated fatigue. However, it decided that for the purpose of preparing food, these functional limitations (pain, fatigue, headaches) could be addressed within the meaning of regulation 4 if RM used aids and a combination of assistance and supervision.

38.

In those circumstances, RM’s disagreement with this aspect of the Tribunal’s decision becomes a disagreement with those specific factual findings made by the Tribunal. However, the Tribunal is the primary Tribunal of fact, and had the benefit of hearing and evaluating RM’s evidence. The Upper Tribunal must respect the FTT’s fact-finding role with its range of experience and expertise, which includes legal, medical and in relation to disability matters.

39.

I am therefore not satisfied that the Tribunal made a material error of law in the terms described in appeal ground one.”

I have not found it necessary in the exercises in statutory interpretation which I have undertaken above to determine whether, as the Secretary of State argues, mobility activity 2 (moving around) is in law the sole statutory focus for assessing a claimant’s ability to mobilise and thus removes, as a matter of law, mobilising (or carrying) from consideration under daily living activity 1. The Secretary of State argued that to read the PIP Regs as allowing for problems with mobilising to be taken into account under both daily living activity 1 and mobility activity 2 would lead to unwarranted double-counting. That argument relies on the legal rule or maxim in statutory construction that where two provisions are capable of governing the same situation, a law dealing with a specific subject matter overrides a law which only governs more general matters (in Latin “lex specialis derogat legi generali) (Footnote: ¹): see Moohan v Lord Advocate [2014] UKSC 67; [2015] 1 AC 901 at paragraph [62] and SSWP v TMcL [2016] UKUT 574 (AAC) at paragraph [14].

A potential difficulty with the Secretary of State’s argument may be that if (as seems to be the case) the appellant’s case is really about carrying (in the sense of mobilising while holding) food items, PIP mobility activity 2 is not about the specific subject matter of the ability to ‘carry’ and so the maxim would not apply. However, all this may then highlight is that if the ability to carry food or food-related items was intended to be part of the functional assessments under the descriptors in daily living activity 1, it would have been easy for the PIP Regs to have made this clear: compare and contrast the ‘lifting and carrying’ activity which was in place in activity 8 in Part I of the Schedule to the Social Security (Incapacity for Work (General) Regulations 1995 (Footnote: ²).

Had it been necessary to address this argument of the Secretary of State, I would have been inclined to accept the appellant’s arguments in opposition to it. The first of those arguments points out that no decision of the Upper Tribunal has concluded that PIP mobility activity 2 is the only place where a claimant’s difficulties with ‘standing and then moving’ may be taken into account in the PIP activities in Schedule 1 to the PIP Regs. The second argument is that of the Upper Tribunal decisions which have addressed a potential overlap between the PIP activities:

In these circumstances, I would have needed to hear more by way of argument from the Secretary of State on her lex specialis argumentthan the general proposition(s):

“that all difficulties with mobility are properly only assessed under the mobility descriptors. There is no place for an assessment of mobility difficulties as part of the daily living activities. If there were, there would be double counting, which is contrary to principle.”

As I hope I have made clear above, my decision that mobilising and carrying are not part of the functional abilities assessed under daily living activity 1 arises on the wording of that activity and its descriptors.