Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 153 (AAC)

Fecha: 18-Mar-2025

My conclusions as to Activity 4

My conclusions as to Activity 4

47.

The appellant has no physical or mental problems that prevent her from bathing, showering or otherwise washing. She needs neither prompting nor assistance from another person, and if she had that it would not improve the odour.

48.

The difficulties in attempting to construe Activity 4 to include this appellant’s circumstances point to the solution: Activity 4 is testing not the quality of the result of washing and bathing, but the physical or mental ability of a person to do so.

49.

I am fortified in that conclusion by the decision of Upper Tribunal Judge Wright in MM & BJ (PIP) [2016] UKUT 512 (AAC). There, the issue was as to Activity 2, taking nutrition, but the principles Judge Wright established in that case are applicable here. He said, at [25]

“The plain focus of the activity “taking nutrition” in my view is therefore on, and is only on, the act of eating and drinking, and thus the enquiry under the PIP scheme has on be on whether, per sections 78(1) and 80(1)(a) of the Welfare Reform Act 2012, a person’s ability to carry out the activity of cutting food into pieces, conveying food and drink to their mouth and chewing and swallowing food or drink, is limited by their physical or mental condition. Once it is understood that, putting matters colloquially, it is the activity of eating and drinking and the physical and mental actions needed to carry out that activity which is in issue under the activity “taking nutrition”, then the word “nutrition” ceases to have any special quality beyond its being a term to cover both eating and drinking, and therefore the nutritious quality of what is being eaten or drunk can be recognised as being irrelevant under the PIP statutory scheme….

And further at [27]

Once the above is understood it seems to me that the flaw in the arguments of the claimants relying on the “acceptable standard” provision in regulation 4(2A) of the PIP Regs is revealed. As regulation 4(2A) makes clear, it applies where a claimant’s ability to carry out an activity is assessed, and the claimant is to be assessed as satisfying a descriptor only if they can do so “to an acceptable standard”. What has to be assessed, therefore is the ability to carry out an activity to an acceptable standard. The activity under activity 2 “taking nutrition” is, as set out above, the ability to cut food into pieces, convey food and drink to one’s mouth and chew and swallow food or drink. It is those acts, which make up the activity, e.g. the act of cutting food into pieces, which have to be done to an acceptable standard: see to similar effect paragraphs 22 to 24 of PE –v- SSWP [2015] UKUT 309 (AAC); [2016] AACR 10. The (nutritious) quality of what is eaten or drunk is not part of those acts, and so the contents of what is being eaten or drunk does not need to be to “an acceptable standard”

To an “acceptable standard”