[2025] UKUT 240 (AAC)

The Secretary of State by a decision dated 5 April 2022 had awarded the appellant the standard rate of both the daily living component and the mobility component of PIP for an indefinite period from 9 November 2021. The appellant appealed that decision to the First-tier Tribunal (“the FTT”), but by its decision of 8 June 2023 the FTT upheld the Secretary of State’s decision and dismissed the appeal. Materially, the FTT upheld the award of two points under PIP daily living activity 1 on the basis of the appellant needing to use an aid or appliance to be able to either prepare or cook a simple meal. The FTT also confirmed that the appellant did not score any points for taking nutrition under PIP daily living activity 2 (taking nutrition).

The material parts of the FTT’s reasons for its decision suitably frame the two points in issue on the appeal. They read as follows:

“10.

In relation to the activity of 1 - Preparing Food, the respondent has scored the appellant 1b - 2 points. The appellant reported to the HCP that he usually prepares microwave meals. If sitting down, he would be able to peel and chop vegetables, open packaging and cook at a hob. He has pain in his back and his

leg that restricts him standing for longer than 5 to 10 minutes.

11.

Mr Khan's principle submission is that the appellant would still need to move around the kitchen when preparing and cooking a simple meal. Mr Khan argues that the appellant is not able to carry out the following parts of cooking a simple main meal safely, in a reasonable time or to an appropriate standard:

a)

Carry food which has been peeled and chopped to the sink to wash it

b)

Carry food from the sink to the table or cooker

c)

Carry food from the cooker to the sink (e.g. to drain rice, pasta, cooked vegetables)

12.

Mr Khan argues that the above tasks are all normal procedures which are required when cooking a simple meal from fresh ingredients. Mr Khan argues that carrying items to the sink safely and without pain, fatigue etc. must therefore be considered a necessary part of the simple meal test. Mr Khan submits that the Northern Ireland case of JMcG v Department for Communities (PIP) supports the submission he makes.

13.

We have carefully considered JMcG v Department for Communities (PIP). With respect, we find the case does not contain the ratio decidendi ascribed to it by Mr Khan. The relevant paragraphs are 33 to 36. We find there is nothing here to suggest that carrying food between various points in the kitchen and

elsewhere can come within the definition of either "prepare" or "cook". Both "prepare" and "cook" are defined in the PIP Regulation 2013 and both have a narrow meaning. Neither definition encompasses carrying food between various places within the kitchen.

14.

The appellant states in oral evidence that he is worried about carrying a pan of boiling water from the cooker to the sink which he states is a distance of about 10 to 15 feet. His friend Simon Sharp states that the distance between the cooker and sink is about 5 to 6 feet. We find there are inconsistencies in the

oral evidence regarding the distance between the cooker and sink. Whatever that distance might be, we find the appellant does not need to carry a pan of boiling water. We find the appellant could easily use a slotted spoon to remove the cooked food from the pan of boiling water during the cooking process. We

find the use of a slotted spoon is wholly unlikely to increase the appellant's level of pain and fatigue. We are not persuaded the appellant requires assistance or supervision to prepare and cook a simple meal for one person. We find that the preparing and cooking process can easily be accomplished with the use of various aids in the kitchen. We find he is likely to be able to prepare and cook a simple meal with aids safely, repeatedly, within a reasonable time period and to an acceptable standard for over 50% of the days in the required period. We have scored the appellant no more points for this activity.

15.

In relation to the activity of 2 - Taking nutrition, the appellant reported to the HCP he uses normal cutlery to eat. Mr Khan's principle submission is that the appellant needs to be prompted to eat. It is argued that the appellant often lacks appetite and his carer regularly prompts him to eat. It is also argued relying on CB v SSWP (PIP) [2022] UKUT 100(AAC) that the appellant has been given dentures and this can be considered as an aid.

16.

Dealing firstly with the issue of prompting, we find there is nothing within either the HCP report or the oral evidence we have heard to indicate the appellant requires prompting to eat. The appellant confirmed that when food is placed in front of him, he is able to use normal cutlery to feed himself. We heard no evidence to indicate he would require any more than the food being placed in front of him for him to eat. We reject the submission that the appellant requires prompting to eat. We find the submission to be unsupported by the oral and documentary evidence.

17.

As for whether dentures can be an aid, we find Judge Hemmingway's comment to be obiter dicta and in any event related to just one aspect of the many questions of whether in principle, dentures can be an aid or an appliance. The questions posed in CB v SSWP (PIP) were whether any loss of teeth must be attributable to an identifiable health condition; and whether an aid, to count as such, must assist with anything more than chewing. Judge Hemmingway only expressed a view that dentures did not need to assist with more than one of the necessary components of the definition of "take nutrition" for it to count as an aid. No other views were expressed. We find that the comments of Judge Hemmingway were in any event non-binding. Mr Khan did not adduce any relevant evidence as to whether the appellant's need for dentures was related to a health condition and we heard no relevant submissions on this point. The Tribunal gleaned from the appellant's oral evidence that he has had dentures for over 30 years and that he wears them every day. The appellant told us that he has not changed the food that he eats because of having dentures. Whilst we accept the appellant does have dentures, we are unable to conclude that the dentures is an aid to take nutrition because there is nothing to suggest, on the facts of this case, that it is a device which improves or replaces the appellant's impaired physical or mental function. We conclude there is nothing to indicate the appellant requires either an aid or prompting to take nutrition. We find that he is likely to be able to carry out this activity safely, repeatedly, within a reasonable time period and to an acceptable standard for over 50% of the days in the required period. He scores no points on this activity.”