[2025] UKUT 252 (AAC)

I will take this ground of appeal first because in the end there was little, if anything, between the parties on it. Moreover, for the reasons I have given above when discussing the CE and TR cases, this ground of appeal may well cover off the ‘need to rest before’ issue with which the appellant is concerned.

It is important to bear in mind the terms on which the FTT gave permission to appeal and, in consequence, the issue of law on which it sought the Upper Tribunal’s guidance. (Although the grant of permission to appeal was not limited, no further and legally separate grounds of appeal have been advanced by either party.) This ground is whether the FTT provided adequate reasons for its finding that the appellant was able to undertake activities “repeatedly” notwithstanding his need to rest before and after carrying out activities.

It is not disputed between the parties that the FTT failed to give adequate reasons for whether the appellant could carry out the PIP activities and descriptors in issue on the appeal “repeatedly”. I agree with the parties on this.

Given the effect of decisions in CE and TR, in my judgement the Secretary of State is correct when she argues that “resting between activities is relevant [to a] claimant’s ability to undertake the particular activity repeatedly”. It must follow from this that resting before an activity is repeated may be relevant to a PIP claimant’s ability to carry out the descriptors under that activity repeatedly. This is because, per paragraph [34] of CE and the statutory test of “repeatedly”, the FTT had to take into consideration the appellant’s reasonable need to complete the activity (or more accurately any of the descriptor(s) under the activity) again, and that then necessarily required it to assess the appellant’s ability after he had previously been able to complete the activity. As a matter of fact, that may involve consideration of the appellant’s ability before he may reasonably require to complete the activity again. However, that is a result of the application of the statutory “repeatedly” test in regulation 4(2A)(c) of the PIP Regs and is not because resting before carrying out a PIP activity is inherent in the activity (Footnote: ¹).

The FTT therefore erred in a law in ruling out resting before carrying out a task for all regulation 4(2A) purposes. Furthermore, it erred in law in failing to show that it had applied the law as set out in TR, CE and AE in explaining why it had assessed that the appellant could “repeatedly” carry out the descriptors under the activities in issue on the appeal. It is important to note in this respect that in paragraph 6 of its Decision Notice the FTT appeared to find that the appellant would need to rest after carrying out PIP activities and before repeating them. That factual finding was not properly worked through or addressed (or explained away) by the FTT in its reasons for its decision or in any properly focused consideration by the FTT on whether the appellant could satisfy the descriptors in issue on the appeal “repeatedly”: per regulation 4(2A)(c) of the PIP Regs.

It is on this basis that the appeal is allowed.