[2025] UKUT 240 (AAC)

The appellant sought permission to appeal on five grounds. The grounds relevant to daily living activities 1 and 2 in summary were: (i) whether the need to move within a kitchen is a part of daily living activity 1; and (ii) whether a denture may be an aid under daily living activity 2. These grounds were expanded as follows:

“Moving around a kitchen

1.

The tribunal was asked to decide whether Daily Living component Activity 1 requires consideration as to whether a person could move around a kitchen safely (e.g. risk of falls, knocking things over or dropping things) and to an acceptable standard (without causing significant pain).The tribunal decided that JMcG-v-Department for Communities (PIP) [2019] NICom 77 did not support the need to move around a kitchen and I would submit that this is wrong in law. In paragraph 35 of this decision Judge Stockman stated the following:

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.

2.

I accept only those tasks immediately preliminary to the process of heating food at or above waist height can be considered. I .would submit that some of the above tasks implicitly involve moving around a kitchen e.g. washing food items (getting to the sink and back to the cooker or preparation table), opening frozen items (involves getting to the freezer, taking things out and putting unused food back in the freezer). The tribunal was asked to consider CPIP/1695/2015 in which the use of lever taps was considered as an aid. This would imply that getting to the sink to use the lever tap must be considered.

3.

In paragraph 14 of the full statement the tribunal has stated that a slotted spoon could be used to take cooked food out of a pot of boiling water. This may be appropriate for cooking foods such as peas it would not be appropriate for foods such as rice or pasta which generally need to be removed from the water at the same time to avoid some of it being overcooked. I would submit that the tribunal applied the law incorrectly when deciding that my client's ability to safely move around the kitchen carrying food as part of the normal meal preparation and cooking process did not need to be considered…..

Dentures as an aid

6.

The tribunal found that my client's use of dentures did not amount to him

using an aid for nutrition. I would submit that this is wrong in law based on

CB v SSWP (PIP). Although Judge Hemingway's comments were obiter

dicta he did state the following:

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

7.

In paragraph 17 of the full statement the tribunal stated that I did not adduce

any relevant evidence as to whether the need to use dentures was due to a health condition. The tribunal was told that my client had used dentures for about fifteen years because of the 'loss of his teeth. The tribunal stated that it was unable to conclude that my client's dentures were an aid to help with taking nutrition and I would submit that this is irrational finding as well as a failure to apply the law correctly.”

I gave permission to appeal as I considered the issues raised in the grounds of appeal about ‘moving around a kitchen’ and ‘dentures as an aid’ were arguable and raised potentially important points of law. I did not refuse permission to appeal on the remaining three grounds of appeal, but I said those remaining grounds would only need to be addressed if the first two grounds were not determinative of the appeal to the Upper Tribunal.

The other grounds of appeal may be summarised as follows. Under daily living activity 3 (managing therapy or monitoring a health condition) it is argued that the FTT had failed to consider the appellant’s risk of falls, had failed to consider evidence showing the appellant’s medical condition was at risk of deterioration due to his high blood pressure and evidence that he had an increased risk of hospital admission and that his mental health had deteriorated. The fourth ground of appeal argues the FTT had ignored evidence which it is said was relevant to whether it was reasonable for the appellant to use hearing aids at the date of the decision under appeal to the FTT. The final ground of appeal concerns PIP mobility activity 2 (moving around). This raises various points about the evidence before the FTT including whether the appellant walked to the Co-op twice a week.

When giving permission to appeal I suggested that these three remaining grounds of appeal might fall into the category of reargument of the evidential merits of the appeal to the FTT. I consider that is the case and will briefly explain why once I have dealt the first two grounds of appeal.