[2025] UKUT 252 (AAC)

A number of decision of the Upper Tribunal have been referred to in the parties’ arguments and I shall seek to address those decisions here. I will start with the decisions to which I referred when directing an oral hearing of this appeal.

The first is the decision in PM v SSWP (PIP) [2017] UKUT 154 (AAC). The key paragraph in that decision is paragraph [20], but it does throw any light on whether resting before an activity is undertaken is (or is not) to be taken into account as a matter of law when determining whether a person who has claimed PIP can undertake a PIP activity within a reasonable time period. What paragraph [20] of the decision in PM is concerned with is the definition of “repeatedly” in regulation 4(4)(b) of the PIP Regs. Critically, PM is authority for the proposition that periods of rest during an extended walk (to the shops and then on to the park) may be relevant to whether the PIP claimant can undertake the descriptors under mobility activity 2 “repeatedly”. The Secretary of State accepts this. The Secretary of State also accepts that resting while undertaking a PIP activity may also be relevant to whether the claimant, as a result of their physical or mental condition, can carry out (i.e., complete) the relevant descriptor within a reasonable period of time.

The second decision is CE v SSWP (PIP) [2015] UKUT 643 (AAC). The claimant in that case suffered from intractable nocturnal grand mal epileptic seizures. Because of this, she had to rest and sleep for long periods after she had a seizure. The FTT awarded the claimant daily living descriptor 1(f) on the basis that the claimant could not safely either prepare or cook food. The Secretary of State’s appeal to the Upper Tribunal was allowed, inter alia, on the basis that the FTT had not provided an adequate explanation for its decision. Having dealt with this and other issues concerning the statutory definition of “safely” within the PIP Regs, Upper Tribunal Judge Hemingway went on to address another error the FTT had made, which he described in paragraph [34] of the decision as follows:

“…..it is important to note that [the FTT] did not appear to consider whether the claimant, the morning after a night in which she had experienced a nocturnal seizure, would be able to perform functions relevant to the daily living and mobility activities and descriptors repeatedly. As set out above, a person is only to be regarded as capable of performing a task or function if able to do so repeatedly. The definition, by way of reminder, is to the effect that the word means “as often as the activity being assessed is reasonably required to be completed”. The claimant’s evidence is, of course, that she is unable to do very much at all due to the adverse impact upon her of a seizure and the tiredness she feels as a result of it until late morning or midday. It seems to me it makes no sense to say a person is able to perform an activity as often as reasonably required if they cannot do so for a part of the day in which they would otherwise reasonably wish or need to do so.…”

This again is about “repeatedly”. Nothing in CE is about completing a descriptor within a reasonable time period. However, in my judgement the above passage in CE is of importance in recognising that an inability to undertake an activity because of, for example, tiredness or extreme fatigue, at time when it would otherwise be reasonable for that activity to be undertaken, may mean that a descriptor or descriptors under that activity cannot be satisfied “repeatedly”. This may therefore be another way, or the way, in which needing to rest before undertaking an activity is taken into account under the PIP legislative scheme.

This point is perhaps emphasised by what is said in paragraph [35] of CE:

“…..I would accept, as I did in TR v SSWP (PIP) [2015] UKUT 626 (AAC) that any inability to perform a function for part of a day must be a direct consequence of a claimant’s physical or mental condition and must be of some significance. Thus, a momentary inability to perform a function would not lead to a conclusion that a descriptor will apply. However, if the inability is such as to have some tangible impact upon a person’s activity and functioning during a day then it might well do. By way of illustration, a person who, having awoken in the morning has to wait for a lengthy period for his or her painkilling medication to take effect before going about his daily business which might include such as washing, dressing and toileting, may well score points in relation to certain of the daily living activities and descriptors. Similarly, a person suffering a significant adverse reaction to a seizure, as this claimant says she frequently does, might also score points on that basis in relation to a range of descriptors.”

Judge Hemingway was not in this passage in CE deciding that resting before an activity could be undertaken fell to be taken into account by calculating how long in terms of time it would take the claimant to “satisfy” (that is, complete) a descriptor under a PIP activity. No part of the analysis in CE is about regulation 4(2A)(d) of the PIP Regs and its “within a reasonable time period” test. However, what CE is authority for it seems to me, is that the need (because of the person’s physical or mental condition) to rest before being able to undertake an activity, if that need is accepted by the decision maker, may fall to be taken into account in deciding whether the person can carry out the relevant descriptors under that activity “repeatedly”.

I do not accept that the points I have highlighted above from CE are limited to the facts of that case or to people with epilepsy, as the Secretary of State argued. The illustrative examples given by Judge Hemingway in paragraph [35] of CE stand against this. Moreover, paragraph [34] of CE contains part of its ratio (what it was deciding). Nor do I consider, in relation to an argument made by the appellant, that paragraph [37] adds anything to CE’s analysis of the law. As I see it, all paragraph [37] contains is a forensic analysis of what the FTT ought to have done in its consideration of the evidence as a result of what Judge Hemingway had decided about “safely” and “repeatedly” in regulation 4(2A) and (4) of the PIP Regs.

The third decision I referred to in my oral hearing directions is TR v SSWP (PIP) [2015] UKUT 626 (AAC);[2016] AACR 23. Its key ratio is referred to in paragraph of paragraph [35] of CE. TR, too, is not about whether the “within a reasonable time period” test in regulation 4(2A)(d) of the PIP Regs. Its focus is again on “repeatedly”. The following passages from TR are worth setting out:

“32……for a descriptor to apply, on a given day, then the inability to perform the task or function must be of some significance, that is to say something which is more than trifling or, put another way, something which has some tangible impact upon a claimant’s activity and functioning during a day but not more than that. So, by way of illustration, to use the example given in the PIP Assessment Guide, if a person were to take his painkilling medication at the start of the day and it was to take effect quickly, so that his normal daily routine would not be inhibited in any way, then the relevant descriptors, in this context perhaps those relating to functions such as dressing, washing and toileting, would not be satisfied such that no points would be scored. If, however, the medication did not start to work for a period such as to delay his going about his daily business then it would be satisfied. Such a claimant, having taken his medication, could not be expected to await embarking upon his washing, dressing and toileting for a significant period for his medication to take effect. This, again, would seem to be in accordance with the overall legislative intention and seems to me to be consistent with the Government’s response.

34.

The key to all of this is the definition of repeatedly. In the examples above, it cannot properly be said that a claimant is able to wash, dress and attend to his or her toileting as often as the relevant activities are reasonably required to be completed if he or she is obliged to wait for a disruptive period of time until painkillers take effect. It cannot properly be said that a claimant is able to follow the route of a journey repeatedly if he or she cannot do so for a part of each day such that the claimant is obliged to live a restricted lifestyle.”

Pausing at this point, it might be thought that CE and TR cover the appellant’s case of needing to rest before he can undertake activities at the time it would be reasonable for him to carry out those activities.

The appellant sought, however, to rely on three other cases in support of his argument that resting which was needed before an activity could be undertaken fell to be taken into account in assessing whether the activity had been carried out within a reasonable time period.

The first case TF v SSWP [2015] UKUT 661 (AAC). I do not find anything of substance in TF which supports the appellant’s argument. The reasons given by Upper Tribunal Judge Parker, as she herself said, were “brief”. Moreover, the key focus of the decision, at least in terms of regulation 4(2A), was on pain and needing to stop for rest being relevant to whether the claimant could complete a mobility descriptor (under PIP mobility activity 2) “to an acceptable standard”. Even within that context, however, the language of paragraph [6] of TF makes clear that what Judge Parker was addressing was stops during, and not before, the act of mobilising. Nor is there anything in paragraph [7] of TF, whether read with paragraph [37] of CE or not, which decides as a matter of law that a ‘broad approach’ should be taken to the way in regulation 4(2A)(c) and (d) of the PIP Regs interact.

Likewise, KW v SSWP (PIP) [2024] UKUT 410 (AAC) is about difficulties doing an activity due to pain. Indeed, KW is really only following TF on this point, and was not deciding (even by inference) that resting before carrying out an activity was relevant to the time in which the activity’s descriptors could be completed.

The last case the appellant relied on is AE v SSWP (PIP) [2024] 381 (AAC). This appeal concerned a claimant with CFS. This left her unable to cook a meal from fresh ingredients after a day of work. Again, however, nothing in AE addresses, let alone decides, that resting before undertaking a PIOP activity is relevant to the assessment of time under regulation 4(2A)(d) of the PIP Regs. At best, in terms of its relevance to this appeal, AE simply follows Judge Hemingway’s decisions in TR and CE about “repeatedly”.

I should add in this discussion about case law that the Secretary of State also sought to rely on arguments about unnecessary ‘double counting’ following paragraph [14] of SSWP v TMcL [2016] UKUT 574 (AAC). As I understood the argument it was that “resting” between different PIP activities should be ruled out because the activities themselves do not overlap. Given, for the reasons I set out below, I have not accepted the appellant’s argument that resting before an activity is undertaken has to be taken into account as part of assessing the time within which the descriptors under the activity are completed, I need say no more about this argument. Paragraphs [56]-[59] of MP v SSWP (PIP) [2025] UKUT 240 (AAC) highlight some difficulties with the lex specialis argument which the Secretary of State was relying on here.