[2025] UKUT 153 (AAC)

There is a further aspect to the definition of ‘aid’. Judge Jacobs held in CW v SSWP [2016] UKUT 0197 [para 33] that there must be an impairment to a function which is required for carrying out the activity, and not required just for one manner of carrying out the activity. Thus in CW v SSWP [2016] UKUT 0197 it was held that the bed was not an aid because the claimant’s ability to sit while dressing was not impaired. The bed assisted with the impaired function of standing to dress, but that was not a function required to carry out the activity of dressing.

The point did not arise in this case. If, as I have found, there is no relevant impaired function, then the question of whether that impaired function is required for carrying out the activity was not reached.

However, I address one aspect of the Secretary of State’s submissions which touch on this issue. The Secretary of State submits that using water to clean oneself is one of the normal manners of cleaning oneself after going to the toilet. The use of water generally is not to the point. The claimant in this case used a bottle with sterilised water to clean herself, including after urinating. That is not one of the ‘usual and normal’ ways to carry out the activity. A bottle, and sterilised water, is not usually used by someone without a limitation in those circumstances. That, however, cannot make it an aid where, as here, the first stage of the test is failed because there is no relevant impaired function.

The next step is to consider whether the object in question ‘improves, provides, or replaces’ a relevant impaired function.

As an example in this context of Activity 5, there are long-handled devices which can assist those who do not have the dexterity or strength to clean themselves using toilet paper in the usual way. Such an object plainly ‘improves’ the impaired function: it directly compensates for the reduced ability and make it easier or possible for the person to carry out the activity of cleaning themselves.

In this case, this step is in one sense not reached, because there is no relevant ‘impaired function’ which any aid could improve. However, it is a useful test to check that the ‘impaired function’ has been identified accurately. The bottle was not used to compensate for a difficulty with performing the act of cleaning. It was used to improve personal hygiene, in order to reduce the incidents of urinary tract infection. The use of the bottle was, in effect, a preventative therapy. It was linked to the management of the claimant’s health condition, not to the management of toilet needs.

I agree with Judge Brunner that the concept of an impaired function is not an abstract, but requires an impairment that affects the ability to execute the actions the activity is assessing.

In terms of the need for an aid, the distinction between the management of the health condition and the management of the activity under consideration is apposite here: the medicated soap is not being used to compensate for an inability to perform the mechanical functions of washing and bathing. Its purpose is to ameliorate the consequences of the appellant’s impaired metabolic function that prevents her body from neutralising the chemical which causes the odour that washing does not overcome. I adopt Judge Brunner’s phrase in saying that its use is linked to the management of the appellant’s health condition rather than to the management of washing and bathing. The connection between the use of the medicated soap and the functional tasks of Activity 4 is not there.

Just as activity 5 is testing the functional abilities in respect of managing toilet needs or incontinence, including cleaning oneself after using the lavatory, Activity 4 is testing the functional capacity to bathe - the mechanical actions of getting in and out of an unadapted bath or shower, and the ability to wash certain parts of the body.

Accordingly, as in the situation before Judge Brunner, the issue of whether something is an aid, or if an aid is required, does not need to be considered. This is because the initial question as to the connection between the impaired function and the asserted aid is not made out; however, her ‘sense check’ also assists here, and it confirms that interpretation: does the object improve, provide or replace the impaired function? Where the medicated soap is substituted in Judge Brunner’s question, the answer is as for the bottle of water in her case; the purpose of the medicated soap is not to aid the functional process of washing and bathing, but to lessen the effects of the appellant’s underlying medical condition.

I reiterate the importance of identifying the functional limitation or impairment within the terms of the activity. Per DA, the aid issue becomes redundant because Activity 4 is calibrating the functional capacity to wash and bathe.

The arguments Mr Kamara made before me have been to the effect that the appellant’s inability to eliminate the malodour produced by her bodily secretions means that she cannot wash to an acceptable standard; submissions about treating a medicated soap as an aid, likewise embody that concept.

In BB & MB the nutritional value of the food prepared and consumed was not being assessed; in DA, the cleaning after using the lavatory was to achieve a normal, and not bespoke, level of cleanliness, without taking into account issues relating to an underlying health condition that may be improved by performing the activity in a particular way.

That latter point is relevant here; if the acceptable standard test is to a bespoke standard for the effects of TMAU, and whether it is subjective or objective, the continued performance of the actions of washing and bathing cannot effect a result that will satisfy either the appellant, or people she may encounter, by whom she has, regrettably, been the subject of adverse comment. Her condition produces the odour which is not removable by washing; only a cure or recommended ways of ameliorating the effects can do that. If looked at through that lens it becomes more understandable that her disability within the overall PIP framework is not in fact washing and bathing, but the known mental health problems that frequently result from the syndrome which are calibrated under different activities.

The effect of the appellant’s condition TMAU is not that it prevents her from washing or bathing, but that it causes her to be reluctant to engage with people to the extent that she leads a rather isolated life. The effects of this considerable limitation do not arise under Activity 4, but Activity 9.

It is now agreed between the parties that in its approach to Activity 9 and Mobility Activity 1 the tribunal did fall into error.

I remind myself of the considerable case law as to the extent of the need to explain; reasons do not need to be perfect but adequate, and broadly, this was a good SOR. On these two activities, however, the tribunal did not clarify its assessment of evidence that might well have pointed to a higher score than that awarded. On each of these activities any further points would have led to a different outcome, thus proper explanation was critical.

I confirm that in this respect the tribunal fell into error. It failed to give adequate reasons for material findings per R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ. 982.

Further, the consideration of the various strands of the evidence was not, in my judgment, sufficiently rounded to do justice. There was a mismatch between evidence that it accepted in the mobility sphere, but appears to have rejected, or perhaps failed to consider, in respect of a similar test under Activity 9 (d) (i). I agree with Mr Edwards that the appellant’s account of her difficulties with engaging with others was consistent with what she said in connection with mobility activity 1, but the FTT failed to look at the evidence in these respects as a composite whole: it isolated the evidence for the Activity 9 assessment to that pertaining directly to it, rather than draw inferences that might bear upon the mobility assessment. There was a clear connexion between the appellant’s problems with these two different activities, and either inferences should have been drawn, or the failure to do so explained.

Mobility activity 1 relates to planning and following a journey. The FTT’s decision was to award only the ten point descriptor, 1(d), and not the twelve point descriptor, 1(f) that is now accepted as appropriate by the Secretary of State.

I have made some general observations about the way in which the evidence should be considered across the piece, but as this activity was not in dispute and has not been argued before me, I say no more about it.

I turn to deal with the grounds which Judge Butler said would only need to be considered if the other matters were not determinative of the appeal. Activity 2, taking nutrition, was placed into dispute in the original grounds of appeal when the appellant acted in person. She had been awarded no points, and argued that she needed prompting to take the vitamin supplements that her medical advisers had recommended. As Judge Butler pointed out, the tribunal awarded descriptor 3 (b) (1 point) for requiring prompting to take medication, and to the extent that her vitamins were prescribed medication, the award of descriptor 3 (b) would have included them. She did not rule out her arguing this at an appeal if the matter was still relevant after the matters upon which she had granted permissions were decided.

The Secretary of State does not support the appeal in relation to daily living activity 2. Mr Edwards relies on the decision of the Upper Tribunal in MM & BJ, explaining the narrow meaning of the term “take nutrition”.

Mr Kamara has not put forward argument on the point.

I have considered the point because, after the Secretary of State’s concession on Activity 9, the appellant has eleven points in the daily living category and is thus close to the threshold for an enhanced award of that. However, my considerations are against her. Despite her articulate submissions I will neither increase the daily living points score beyond the eleven points awarded, nor remit the case for a tribunal to consider the issue.

As discussed above in the context of Activity 4, MM & BJ is settled law on the meaning of Activity 2: Judge Wright decided that the quality of what was being consumed was not being tested under that activity, but just the acts of cutting up, chewing and swallowing food. That being so, I agree with Judge Butler’s cautious warning in her grant of permission: given Judge Wright’s authoritative decision there is no possibility of an award of points founded upon a problem taking, or remembering to take, vitamin supplements, which arguably may not be food or drink in any event.

In making the decision that the Secretary of State suggests, I make no comment about the basis of the Secretary of State’s concessions. Mr Kamara accepts them.

The award is the standard rate of the daily living component and the enhanced rate of the mobility component. The daily living component has never been in payment. It will be backdated to the date of claim, as will the uplift in the mobility component, which has been paid thus far at the standard rate.

I have been materially assisted by both advocates; however, I extend my particular thanks to Mr Kamara who acts pro bono before me. The law in this area is complex and it is of assistance in providing both equality of arms between the parties and in streamlining proceedings where the parties are each represented.