[2025] UKUT 252 (AAC)

Part 4 of the Welfare Reform Act 2012 (“the WRA”) created the social security benefit PIP. By section 77(2) of the WRA a person can have an entitlement to the daily living component of PIP or the mobility component of PIP, or both. As the FTT’s grant of permission to appeal focussed on the daily living activities, I shall do so also in this decision. However, the issues of law raised in this decision may also extend to the mobility activities under the PIP legislative scheme.

Section 78 of the WRA deals with the daily living component of PIP and provides, insofar as is material, as follows:

“Daily living component

78:-(1) A person is entitled to the daily living component at the standard rate if—

(a)

the person's ability to carry out daily living activities is limited by the person's physical or mental condition….

.

(2)

A person is entitled to the daily living component at the enhanced rate if—

(a)

the person's ability to carry out daily living activities is severely limited by the person's physical or mental condition….

(4)

In this Part “daily living activities“ means such activities as may be prescribed for the purposes of this section.

Section 80 of the WRA has the heading “Ability to carry out daily living or mobility activities” and, again only insofar as is material, sets out:

“80:-(1) For the purposes of this Part, the following questions are to be determined in accordance with regulations—

(a)

whether a person's ability to carry out daily living activities is limited by the person's physical or mental condition;

(b)

whether a person's ability to carry out daily living activities is severely limited by the person's physical or mental condition…

(3)

Regulations under this section—

(a)

must provide for the questions mentioned in subsection… (1)… to be determined, except in prescribed circumstances, on the basis of an assessment (or repeated assessments) of the person;

(b)

must provide for the way in which an assessment is to be carried out;

(c)

may make provision about matters which are, or are not, to be taken into account in assessing a person.

(4)

The regulations may, in particular, make provision—

(a)

about the information or evidence required for the purpose of determining the questions mentioned in subsections (1) and (2);

(b)

about the way in which that information or evidence is to be provided;

(c)

requiring a person to participate in such a consultation, with a person approved by the Secretary of State, as may be determined under the regulations (and to attend for the consultation at a place, date and time determined under the regulations).”

The decision in TK v Secretary of State for Work and Pensions (PIP) [2020] UKUT 22 (AAC); [2020] AACR 18, helpfully explains what is meant by a claimant’s ability to carry out daily living activities being limited by their physical or mental condition. As Upper Tribunal Judge Markus KC explained at paragraphs [39]-[40] of TK:

“39.

As with DLA, there is a limit to the scope of section 78. The phrase “limited by the person’s physical or mental condition” means that there must be a physical or mental cause of their limitation. A person must lack the physical or mental power or capability to perform the activity in question. A person will not qualify if the limitation on their ability to carry out an activity is due to their belief or habits (see paragraph 39 of R (DLA)3/06), choice or other circumstances such as their living arrangements or financial position (SC v Secretary of State for Work and Pensions (PIP) [2017] UKUT 0317 (AAC) at paragraphs 14-15). Although in practice a claimant’s limitation will very often be a consequence of what might be described as a “health condition”, it is not appropriate to add words to the statutory language. The unqualified use of the word “condition” reflects the aim of the legislation to focus on a functional approach to entitlement.

40.

Moreover, there is nothing in the statutory wording which requires a physical or mental condition to be a direct cause of the limitation. As in relation to DLA (see R(DLA) 4/01 at paragraph 18), it is permissible to take into account a physical or mental condition which gives rise to some other factor which itself causes the limitation. In R(DLA) 4/01 the claimant’s functional limitation was caused by anxiety which itself was a consequence of deafness. Ms Apps [counsel for the Secretary of State] gave the examples of a physical or mental condition which gives rise to lack of appetite or brain fog.”

The details of the entitlement rules for PIP are found in the Social Security (Personal Independence Payment) Regulations 2013 (“the PIP Regs”).

Regulation 4 of the PIP Regs, as has been noted already, is concerned with the “Assessment of ability to carry out activities” and provides, relevantly, as follows (with ‘C’ meaning ‘the claimant’):

“4(1) For the purposes of section 77(2) and section 78 or 79, as the case may be, of the [WRA], whether C has limited or severely limited ability to carry out daily living or mobility activities, as a result of C's physical or mental condition, is to be determined on the basis of an assessment….

(2A) Where C’s ability to carry out an activity is assessed; C is to be assessed as satisfying a descriptor only if C can do so—

(a)

safely;

(b)

to an acceptable standard;

(c)

repeatedly; and

(d)

within a reasonable time period….

(4)

In this regulation—

(a)

“safely” means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity;

(b)

“repeatedly” means as often as the activity being assessed is reasonably required to be completed; and

(c)

“reasonable time period” means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity.”

Regulation 5 of the PIP Regs provides for an assessment by reference to the daily living activities listed in Part 2 of Schedule 1 to the PIP Regs. Each applicable descriptor under each activity attracts specified points. A claimant will have limited or severely limited ability to carry out daily living activities where they score at least 8 or 12 points respectively.