[2025] UKUT 252 (AAC)

The appellant was fortunate to be represented by the Free Representation Unit (“FRU”) after I directed the oral hearing. Through FRU he invited the Upper Tribunal to decide that:

In support of these propositions, the appellant argued as follows:

“5.

The Appellant contends that he can only undertake one burst of activity at a time, lasting roughly 20 minutes on a good day, with 30 minutes of rest before and after. The more activities he performs in a day, the greater the degree of fatigue he experiences. The cumulative fatigue accrued by these activities is also a significant factor in the ongoing requirement for rest.

13.

Case law takes a broad approach towards the way in which the Regulation 4(2A)(c-d) interact: CE v SSWP [2015] UKUT 643 at [§37], TF v SSWP [2015] UKUT 661 at [§7]. While each ground is taken separately, there is some overlap in approach. Furthermore, over the course of a day rest periods between activities can, to some extent, ‘blur’. Resting after showering becomes part and parcel of resting before dressing, for example. A flexible approach to rest periods, for purposes either of the ‘reasonable time’ or the ‘repeatedly’ criterion is suggested, as the Tribunal thus takes full account of a claimant’s daily life.

14.

This is subject to the Tribunal’s satisfaction that a claimant’s resting is a need rather than a preference…..On the basis of what follows, there is authority for this approach.

15.

The First-Tier Tribunal was wrong to conclude that ‘resting before an activity is not part of an activity’ [§22]. This is because:

a.

The dicta of a number of cases considering the mobility component of the award indicate that resting during, after and between an activity counts towards the length of time it takes to complete that activity.

b.

The Tribunal is invited to reason analogously and incorporate rest periods undertaken prior to an activity. There is authority for this based on AE v SSWP [2024] UKUT 381 (AAC)..and KW v SSWP [2024] UKUT 410...

16.

Firstly, as per TF v SSWP [2015] UKUT 661, which concerned a claimant’s ability to walk the required distance without a rest, [§6], ‘matters such [...] the frequency and nature, including extent, of any rests required by a claimant, are relevant to the question of whether a claimant can complete a mobility activity descriptor ‘to an acceptable standard’”.

17.

As per that judgment, this ‘inevitably links with two of the further relevant matters under regulation 4(2A): ‘repeatedly’ and ‘within a reasonable time period” [§7]. As such, the Upper Tribunal is invited to reason analogously: ‘rest’ and ‘reasonable time’ are connected. The Appellant’s need to rest before is an exercise in ‘pacing’. In order to reduce the time needed to rest after an activity, he gathers energy before.

18.

This is supported by KW v SSWP [2024] UKUT 410 (AAC) (“KW”). The appellant experienced chronic pain and fatigue even on ‘mild exertion’. The Upper Tribunal opined at [§24] that pain and implicitly fatigue ‘can and often is relevant to a claimant’s ability to carry out a PIP activity to an acceptable standard’. It may ‘also be relevant to whether the activity can be done repeatedly and within a reasonable time.’ [§24].

19.

Secondly, that judgment states that there is ‘no logical reason why the same approach should not be applied to the other PIP activities’ [§24]. Although the difference between resting while walking and resting prior is acknowledged, the above cases indicate that there is authority for a broad approach of the Tribunal towards fatigue and that this can be applied across a range of descriptors.

20.

Furthermore, in AE v SSWP [2024] UKUT 381, it was found that a claimant’s CFS, which left her unable to prepare a meal after a day of work could engage Regulation 4. The claimant was ‘so tired that she [was] not able to function normally in the evening’ [§17]. As such, the effect of cumulative fatigue falls to be (and should have been) considered by the Tribunal.

21.

There is as such no reason why the Upper Tribunal should not take account of fatigue experienced across the range of PIP activities, and logically, why resting prior to an activity should not be considered, if it is deemed necessary to do so.

22.

The effects of a condition on a claimant’s ability to undertake a task can be considered as part of the ‘repeatedly’ assessment in Regulation 4(2A)(c).

23.

The approach to rest periods and collateral effect of a condition in CE v SSWP (PIP) [2015] UKUT 643 (AAC)…, provides a foothold for the Tribunal to account for rest periods taken in anticipation of an activity. The claimant, unable to properly function as a result of ‘post-epileptic fugue’ and fatigue, resulted in a finding of Regulation 4 extended beyond the points awarded by the First-Tier Tribunal. As such, the Upper Tribunal found that a claimant’s ‘inability to perform a function for part of a day’ as a ‘direct consequence of a claimant's physical or mental condition’, can have an effect on ‘a range of descriptors’ [§36].

24.

The Tribunal illustrated this with the example of ‘waiting for medication to take effect before washing, dressing and toileting’, which ‘may well score points in relation to certain of the daily living activities and descriptors’, particularly if a claimant cannot, as a result, complete an activity as often as ‘they would otherwise reasonably wish to do so’. [§36].

25.

It is accepted that CE makes something of an elision between the elements of Regulation 4: a claimant needing to rest before undertaking an activity can take them both beyond the requirements of ‘reasonable time’ and prevent them from undertaking an activity ‘repeatedly’. CE notes that the Tribunal, when assessing the after-effect of the seizures, should have necessitated an assessment ‘in accordance with the regulation 4 2(A) considerations including the “repeatedly” requirement as defined’ [§37]….

28.

TR v SSWP [2015] UKUT 626…suggests that points may be awarded across a range of descriptors if ‘the inability to perform the task or function [...] has some tangible impact upon a claimant’s activity and functioning during a day’ [§32]. The Upper Tribunal utilised the example of waiting for medication to work ‘so as to delay [a claimant’s] going about his daily business [...] for a significant period’ [§32].

29.

This impacts on the ability of a claimant to perform an activity ‘repeatedly’ [§34]. If a claimant cannot do an activity for part of the day as a direct result of their condition (demonstrated in [this] case by the need to rest), then the descriptor is satisfied for the whole of that day…..

31.

The similarities between the case at hand and the examples raised in CE and TF indicate the Upper Tribunal should apply the same approach. Having made breakfast and lunch and undertaken a journey, as detailed at FtT p.76, the appellant is then unable to undress, wash, and make the final meal of the day due to the fatigue accrued. The First-Tier Tribunal’s finding at [24] that ‘having to rest would make all of the activities unrepeatable’ is rather the point.”