[2025] UKUT 240 (AAC)

Part 4 of the Welfare Reform Act 2012 (“the WRA”) created the social security benefit PIP. By section 77(2) of the WRA a person can have an entitlement to the daily living component of PIP or the mobility component of PIP, or both.

Section 78 of the WRA deals with the daily living component of PIP and provides, insofar as is material, as follows:

“Daily living component

78:-(1) A person is entitled to the daily living component at the standard rate if—

(a)

the person's ability to carry out daily living activities is limited by the person's physical or mental condition….

.

(2)

A person is entitled to the daily living component at the enhanced rate if—

(a)

the person's ability to carry out daily living activities is severely limited by the person's physical or mental condition….

(4)

In this Part “daily living activities“ means such activities as may be prescribed for the purposes of this section.

Section 80 of the WRA has the heading “Ability to carry out daily living or mobility activities” and, again only insofar as is material, sets out:

“80:-(1) For the purposes of this Part, the following questions are to be determined in accordance with regulations—

(a)

whether a person's ability to carry out daily living activities is limited by the person's physical or mental condition;

(b)

whether a person's ability to carry out daily living activities is severely limited by the person's physical or mental condition…

(3)

Regulations under this section—

(a)

must provide for the questions mentioned in subsection… (1)… to be determined, except in prescribed circumstances, on the basis of an assessment (or repeated assessments) of the person;

(b)

must provide for the way in which an assessment is to be carried out;

(c)

may make provision about matters which are, or are not, to be taken into account in assessing a person.

(4)

The regulations may, in particular, make provision—

(a)

about the information or evidence required for the purpose of determining the questions mentioned in subsections (1) and (2);

(b)

about the way in which that information or evidence is to be provided;

(c)

requiring a person to participate in such a consultation, with a person approved by the Secretary of State, as may be determined under the regulations (and to attend for the consultation at a place, date and time determined under the regulations).”

The decision in TK v Secretary of State for Work and Pensions (PIP) [2020] UKUT 22 (AAC); [2020] AACR 18, helpfully elucidates what is meant by a claimant’s ability to carry out daily living activities being limited by their physical or mental condition. As Upper Tribunal Judge Markus KC explained at paragraphs [39]-[40] of TK:

“39.

As with DLA, there is a limit to the scope of section 78. The phrase “limited by the person’s physical or mental condition” means that there must be a physical or mental cause of their limitation. A person must lack the physical or mental power or capability to perform the activity in question. A person will not qualify if the limitation on their ability to carry out an activity is due to their belief or habits (see paragraph 39 of R (DLA)3/06), choice or other circumstances such as their living arrangements or financial position (SC v Secretary of State for Work and Pensions (PIP) [2017] UKUT 0317 (AAC) at paragraphs 14-15). Although in practice a claimant’s limitation will very often be a consequence of what might be described as a “health condition”, it is not appropriate to add words to the statutory language. The unqualified use of the word “condition” reflects the aim of the legislation to focus on a functional approach to entitlement.

40.

Moreover, there is nothing in the statutory wording which requires a physical or mental condition to be a direct cause of the limitation. As in relation to DLA (see R(DLA) 4/01 at paragraph 18), it is permissible to take into account a physical or mental condition which gives rise to some other factor which itself causes the limitation. In R(DLA) 4/01 the claimant’s functional limitation was caused by anxiety which itself was a consequence of deafness. Ms Apps [counsel for the Secretary of State] gave the examples of a physical or mental condition which gives rise to lack of appetite or brain fog.”

The details of the entitlement rules for PIP are found in the Social Security (Personal Independence Payment) Regulations 2013 (“the PIP Regs”).

Under regulation 2 of the PIP Regs an “‘aid or appliance’ means any device which improves, provides or replaces [the claimant’s] impaired physical or mental function”. And Part 1 of Schedule 1 to the PIP Regs sets out that “aided” means “with the use of an aid or appliance”.

Regulation 4 of the PIP Regs is concerned with the “Assessment of ability to carry out activities” and provides, relevantly, as follows (with ‘C’ meaning ‘the claimant’):

“4(1) For the purposes of section 77(2) and section 78 or 79, as the case may be, of the [WRA], whether C has limited or severely limited ability to carry out daily living or mobility activities, as a result of C's physical or mental condition, is to be determined on the basis of an assessment…. (2A) Where C’s ability to carry out an activity is assessed; C is to be assessed as satisfying a descriptor only if C can do so—

(a)

safely;

(b)

to an acceptable standard;

(c)

repeatedly; and

(d)

within a reasonable time period….

(4)

In this regulation—

(a)

“safely” means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity;

(b)

“repeatedly” means as often as the activity being assessed is reasonably required to be completed; and

(c)

“reasonable time period” means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity.”

Regulation 5 of the PIP Regs provides for an assessment by reference to the daily living activities listed in Part 2 of Schedule 1 to the PIP Regs. Each applicable descriptor under each activity attracts specified points. A claimant will have limited or severely limited ability to carry out daily living activities where they score at least 8 or 12 points respectively.

The activity in Part 2 of Schedule 1 to the PIP Regs with which daily activity 1 is concerned is “Preparing food”. Part 1 of Schedule 1 to the PIP Regs helps with what is meant by “prepare” in this context. It provides that “‘prepare’, in the context of food, means make food ready for cooking or eating”. Part 1 of Schedule 1 also tells us that “‘cook’ means to heat food at or above waist height”, and it further provides that “simple meal” means “a cooked one-course meal for one using fresh ingredients”.

The following point scoring descriptors apply under daily living activity 1.

Daily living activity 2 in Part 2 of Schedule 1 to the PIP Regs is about the activity of “taking nutrition”. Part 1 of Schedule 1 also assists with what is covered by “taking nutrition” as it sets out that “take nutrition” means (inter alia) “cut food into pieces, convey food a drink to one’s mouth and chew and swallow food or drink”.

The following points scoring descriptors apply under daily living activity 2.

Two decisions of the Upper Tribunal lay at the heart of the appellant’s arguments and are worth referring to here.

The first is the decision of Mr Commissioner Stockman in JMcG v Department for Communities (PIP) [2019] NICom 77. The relevant debate in that case was whether a litter picker could be an aid under, what in Great Britain, is PIP daily living activity. It was accepted by the appellant in JMcG that the litter picker was not an aid to ‘cooking’, but it was argued that it could be an aid to ‘preparing food’ if that part of daily living activity 1 involved bending. The respondent argued that the litter picker was used to gather utensils and food and therefore was involved at a stage preliminary to preparing food. Commissioner Stockman decided that a litter picker could not constitute an aid to preparing food, for these reasons.

“32.

I accept Mr Black’s concession that a litter picker is not an aid in cooking food. The definition of “cook” in the 2016 Regulations is to heat food at or above waist height. This removes any consideration of bending to take things out of an oven or reaching for things below waist height. The [PIP Regs] also provide a definition of preparing food. “Prepare”, in the context of food, means make food ready for cooking or eating.

33.

Mr Black indicates that the litter picker is used by the appellant to reach utensils and food from low cupboards. Ignoring the question of why someone with the claimed level of disability would store regularly used items in low cupboards, the more immediate question is whether preparing food includes taking items out of a cupboard.

34.

It seems to me that there are many preliminaries before a claimant arrives at the activities assessed in the legislation. Food needs to be obtained, which typically involves shopping. Shopping bags need to be carried and items unloaded from bags. Items may then be stored and may need to be accessed from cupboards, refrigerator or freezer. Work surfaces may need to be cleared and cleaned. Items such as chopping boards, knives, pans and stirring spoons may need to be put into place.

35.

It seems to me that “to make food ready for cooking …” has quite a narrow meaning, however. To make food ready for cooking implies to me that only a range of tasks immediately preliminary to the process of heating food at or above waist height can be considered. This might include washing, peeling and chopping fresh vegetables; preparing meat or fish, including cutting it into smaller pieces; opening packets of pasta, rice or noodles; opening tins and packets containing other foodstuffs, including frozen items; pouring or emptying foodstuff items from packets or tins; using common kitchen equipment such as graters, grinders and food processors; putting food into pots or pans, and adding boiled water to pots. I do not intend to be prescriptive but to give a broad range of examples to which other relevant tasks may be analogous.

36.

I consider that the act of taking an item out of a cupboard – whether a cooking utensil or a cooking ingredient - cannot reasonably bear the meaning of making food ready for cooking. That expression can only refer to some action that readies an item of food for cooking forthwith. Simply taking an item from a cupboard does not do that, whether an aid is required to accomplish it or not. I see no reasonable function for the litter picker in the context of preparing food. I therefore do not accept the submission of Mr Black that the tribunal has erred in its approach to this issue.”

The second decision was made by Upper Tribunal Judge Hemingway in CB v SSWP (PIP) [2022] 100 (AAC). In that case Judge Hemingway made it clear (in paragraph [1] of the decision) that he had not considered it appropriate to decide whether dentures used by the claimant are an aid with respect to her ability to take nutrition. What that ‘obiter’ qualification in mind, the other relevant parts of the decision in CB read as follows:

“3……The argument under 2b(i) was founded upon a contention that the claimant had missing teeth and so used dentures which, in such circumstances, ought to be regarded as an aid or appliance. The F-tT, whilst deciding the claimant scored 6 points under the activities and descriptors relevant to the daily living component and 10 points under the activities and descriptors relevant to the mobility component (translating into the award of the standard rate of the mobility component only) rejected [this] contention... On my reading of the statement of reasons it decided the claimant’s dentures could not be an aid or appliance for three reasons being: a) Parliament could not have intended dentures to be an aid or appliance for PIP purposes because they are a commonly used item; b) even if there were circumstances whereby dentures could be an aid or appliance such was not the case here due to a lack of any identifiable health condition which had led to the claimant’s loss of teeth and hence her need for dentures; and c) the definition of “taking nutrition” as set out at Part 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (“the PIP Regulations”) requires an item to be needed for both chewing food and (my underlining) swallowing food before it can count as an aid…..

4…….As to the dentures issue, I thought the F-tT might have erred through speculating as to what Parliament might or might not have intended as opposed to focusing on the words used in the relevant legislation, through wrongly requiring an identifiable health condition which had led to the loss of teeth, and through thinking that to be an aid as defined an item had to assist with both chewing and swallowing rather than with just one of those functions…..

6.

The Secretary of State, through her representative and having taken legal advice (paragraph 2 of a holding submission of 13 December 2021), accepted, I think essentially for the same reasons which had caused me to give permission on the point, that the F-tT had erred with respect to its consideration of the toileting issue…..and I was, therefore, invited to set aside the F-tT’s decision on that basis and to substitute my own decision awarding a further 2 points under daily living descriptor 5b, thus enabling the claimant to reach the threshold for entitlement to the standard rate of the daily living component. The representative for the Secretary of State, Mr R Naeem, acknowledged my direction that the issue of the dentures be dealt with too but addressed it by suggesting that, if I were to do as asked, the issue would be rendered immaterial because a further 2 points under daily living descriptor 2b(i) would not change the level of entitlement. It was also suggested that there had been insufficient findings by the F-tT to demonstrate whether any inability of the claimant to chew was limited by a physical or mental condition (see section 78(1) of the Welfare Reform Act 2012) such that there would be little merit in the Upper Tribunal attempting to take matters further. But striking a partially conciliatory note, Mr Naeem did say “It is, however, my submission that if any claimant cannot carry out any of the relevant actions prescribed in the statutory definition of taking nutrition, it can be said they cannot take nutrition”.

[Having decided to allow the appeal on the issue of toileting and not deciding the dentures issue, Judge Hemingway went on to give his opinion on one aspect of the F-tT’s reasoning on dentures as follows]

9……..I do not see the harm in my expressing an opinion as to the F-tT’s view that to be an aid or appliance an item must assist with both chewing and swallowing, as the matter has been addressed and effectively conceded on behalf of the Secretary of State in the context of this appeal.

10.

The F-tT thought that for dentures to be an aid or appliance (assuming in principle that they could be) they would have to assist with both the task of chewing and the task of swallowing. Regulation 2 of the PIP Regulations defines the term “aid or appliance” to mean “any device which improves or replaces C’s impaired physical or mental function” and to “include a prosthesis”. Schedule 1 Part 1 of the above Regulations contains a definition of “aided” which includes “the use of an aid or appliance” and defines taking nutrition as “(a) cut food into pieces, convey food and drink to one’s mouth and chew and swallow food and drink; or (b) take nutrition by using a therapeutic source”. Moving to Part 2 of Schedule 1, daily living activity 2 is “Taking nutrition” and descriptor 2b(ii) relevantly reads “(b) Needs-(i) to use an aid or appliance to take nutrition”.

11.

I do not agree with the conclusion reached by the F-tT that for dentures to count as an aid or appliance they must assist with both chewing and swallowing. That is because the language used in the legislation does not point to such an interpretation; because the process of taking nutrition involves four components being cutting food, conveying it to the mouth, chewing it and swallowing it all of which are necessary (according to the definition) to achieve the taking of nutrition such that if only one of the components (such as chewing) cannot be done the overall task cannot be done; because the F-tT’s interpretation would seem to require an aid or appliance of considerable and quite probably unrealistic versatility if it is required to assist with all four components, and because Mr Naeem has, both fairly and realistically in my view, conceded the point in his submission on this appeal. So, I have formed what is only an opinion, albeit I have to say a very strongly held one, that for an item to count as an aid or appliance for the purpose of taking nutrition it does not need to assist with more than one of the necessary components as set out in the definition appearing at Schedule 1 part 1 of the PIP Regulations and set out above.”