[2025] UKUT 153 (AAC)

“Assessing whether you were able to wash and bathe to an acceptable standard, including other point-scoring descriptors within this activity: The tribunal decided you scored descriptor 4.a (0 points) for the activity of washing and bathing. It found you showered three or four times a day due to the body odour caused by your Trimethylaminuria (“TMAU”). The tribunal accepted you used special soaps to help manage your condition. This is a reference to soaps with a specific pH between 5.5 and 6.5 that your treating doctors recommended you use to help manage the symptoms of your condition.

The tribunal decided you had no difficulties with the physical act of showering and that you did not need prompting to undertake it. The tribunal decided you could shower safely and within a reasonable time. It stated there was no medical evidence in which it had been recommended you shower frequently per day, and no evidence to suggest you showered due to obsessive compulsive disorder. It rejected the suggestion by the healthcare professional that you showered frequently as a matter of choice, and stated you were doing so because of your medical condition. However, the tribunal stated (paragraph 36) that it did not consider showering several times a day and with the frequency that you did, meant you were washing to an unacceptable standard.

Washing is not defined in the Social Security (Personal Independence Payment) Regulations 2013 (“the 2013 regulations”). The word “bathe” is defined in Schedule 1 to the regulations as including getting in and out of an unadapted bath or shower and therefore deals with the mechanical process of entering / exiting them.

It is arguable that when read together with the requirement in regulation 4(2A)(b) of the 2013 regulations of carrying out the activity to an acceptable standard, the PIP activity of washing includes removing body odour successfully.

The tribunal’s Statement of Reasons does not confirm whether showering three or four times a day would enable you to achieve this. At paragraph 24(6) of the Statement of Reasons, the tribunal found that your TMAU affects how your body smells, in a way you find unpleasant and is strong enough for other people to notice, making you anxious and sweaty, which exacerbates your symptoms.

The tribunal accepted (and therefore found as a fact) that you needed to use special soaps to help manage your condition. The appeal bundle describes these soaps in the medical letters dated 29.09.21 (page 19 of bundle), 07.04.22 (page 68 of appeal bundle) and in the Guys and St Thomas’ NHS medical information sheet about TMAU (Addition B, page 16 – soaps, and specific soaps listed at Addition B, page 22). I note the letter dated 07.04.22 on page 68 of the bundle stated the use of the soaps with a pH level of 5.5-6.5 was reported to be helpful (to you) in the reduction of body odour. I also note the medical information sheet, at Addition B, page 16, describes the mechanism of the specific pH of the soaps acting to reduce the chemical reaction that generates TMAU symptoms.

The tribunal arguably made an error of law by not making clear findings of fact about whether showering three or four times a day, including using medically recommended soap with a specific pH range, enabled you to successfully remove body odour.

Related to this, you wrote in your PIP2 form (page 11 of appeal bundle) that in addition to showering at home, if you had to make trips outside for shopping or appointments, you would always use the sink in the public toilet first, and wash your armpits, below your breasts and your back, before the shopping or appointment. You also wrote that before you returned home, you would repeat the same routine of washing your body off in a public toilet sink before getting into the taxi. This evidence was also relevant to whether you were able to wash to an acceptable standard. One interpretation of it is that you needed to carry out additional washing immediately before you came into proximity with other people, to be able to manage the effects of your medical condition.

The tribunal did not address this evidence as part of its decision about the activity of washing and bathing. This was arguably an error of law, because it was relevant to the question whether washing several times a day enabled you to carry out that activity to an acceptable standard.

While the tribunal explained why it ruled out descriptors 4.c (requiring supervision or prompting) and 4.d and 4.e (requiring assistance), given the specific effects of your TMAU on you, and the requirement to assess washing and bathing in terms of regulation 4(2A) (b), the tribunal arguably should have considered you against other point-scoring descriptors as well.

These descriptors included descriptor 4.b, which concerns whether you required an aid or appliance in order to wash. An aid or appliance is defined in regulation 2 of the as “any device which improves, provides or replaces C’s impaired physical or mental function”. In your circumstances, it appears the effects of your TMAU left you with an impaired physical function of being able to wash your body to remove odour successfully. There was evidence that using soap in a specific pH range would help manage removing that odour.

The Upper Tribunal in AP v SSWP [2016] UKUT 0501 (AAC) confirmed that to be relevant to a PIP activity, an aid or appliance must be connected in some way to the activity in question. This distinguishes persons who choose to carry out an activity in a specific manner, from those who need to do so in order to be able to overcome the consequences of their impaired function to carry it out. Given your particular circumstances, and the documentary evidence, the tribunal arguably made an error of law by failing to provide adequate reasons about whether the medically recommended soaps constituted a device connected to the activity of washing and bathing, which improved your impaired physical function of washing to remove odour.

The tribunal arguably also needed to consider whether the most applicable descriptor was 4.g, although this is expressed in not being able to wash at all and needing another person to wash the entire body. It is not immediately clear that another person washing you would enable you to wash to an acceptable standard. This raises the more general question about which descriptor in PIP Daily Living Activity 4 is appropriate for a person who is physically able to wash and bathe (including safely, repeatedly and in a reasonable timescale) and who is motivated to perform the activity but may remain unable to carry it out to an acceptable standard.

By failing to address the other descriptors within the activity of washing and bathing, the tribunal arguably failed to provide adequate reasons for its decision about this activity.

The tribunal’s assessment of mobility activity 1 (planning and following a journey): the tribunal stated at paragraph 42 of its Statement of Reasons that you confirmed you could go to local places not too far away, for example, the local park, the local shop to top up your gas or electricity and your GP and dentist. The tribunal recorded in paragraph 26(8) of the Statement of Reasons (findings of fact) that you were able to undertake short, familiar journeys, such as going to the park for exercise or walking to your GP, which is 15 minutes away. The Statement of Reasons does not include any specific findings about whether you carried out those journeys alone, although the remainder of paragraph 26(8) confirms you did not undertake unfamiliar journeys on your own. It is arguable the tribunal failed to make adequate or clear findings of fact about this activity.

Further or alternatively, the tribunal arguably failed to provide adequate reasons for its decision in terms of its evaluation of the following evidence in the bundle:

If the Tribunal did make an error of law in one or more of the ways I have described at paragraphs 6 to 21 above, that error could be material in the sense that had it not been made, the outcome of your appeal might have been different. This satisfies the relatively low bar to be granted permission to appeal to the Upper Tribunal.

I therefore grant permission in relation to the grounds set out at paragraphs 6 to 21 above.

It is also appropriate to grant permission to appeal, to consider how the descriptors for PIP activity 4 (washing and bathing) are to be applied in the context of regulation 4(2A) of the 2013 regulations, in particular, carrying out this activity to an acceptable standard. See the observations at paragraph 18 above. This provides the good reason described in Smith v Cosworth for also granting permission to appeal.

In relation to your argument that you needed prompting when taking nutrition, the tribunal awarded you descriptor 3.b (1 point) for requiring prompting to take your medication. To the extent that your vitamins were prescribed medication, the award of descriptor 3.b (1 point) would have included them. Taking nutrition is defined in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 to “cut food into pieces, convey food and drink to one’s mouth and chew or swallow food and drink”. As held by the Upper Tribunal in MM and BJ v SSWP (PIP) [2016] UKUT 490 (AAC), this wording has a limited and narrow meaning, which focuses on the act of eating and drinking, and not on the nutritious quality of what is being eaten and drunk. On this basis, it is unclear that being prompted to take vitamins to improve the nutritious quality of your diet, would be capable of counting as you reasonably requiring prompting to take nutrition.

I do not refuse you permission to appeal on the ground addressed at paragraph 25 above (Taking nutrition). However, that ground will only need to be considered if the above grounds where I have given permission to appeal are not considered determinative of your appeal to the Upper Tribunal.”

The First-tier Tribunal’s decision