[2025] UKUT 252 (AAC)

The Secretary of State in her skeleton argument for the oral hearing continued to support the appeal being allowed. On the specific issues of law identified by the FTT when giving permission to appeal, the Secretary of State’s case was, as summarised, as follows:

“6……resting before starting one of the daily living activities, and equally pacing between the activities, forms no part of an assessment for an award of points under any of the descriptors of the PIP daily living or mobility activities. Both the activities and the descriptors in respect of each of them are self-contained and, properly construed, envisage no overlap between them. If an overlap were to be permitted, the obvious risk is that an assessment would give rise to double counting of points, for example, where having been awarded points under one activity for difficulties associated with that one, a further award of points for resting before starting the next activity would arise even though the difficulty might be the result of the previous activity, including its repetition or completion within a reasonable time, but having nothing at all to do with the claimant’s ability to do another activity.

7.

In so far as resting between activities is relevant at all to an assessment of a claimant’s ability reliably to undertake the activities, it must focus only on the claimant’s ability to undertake the particular activity repeatedly. Pacing or resting between activities has no relevance to the question whether an activity can be undertaken within a reasonable time period because the assessment in this respect must only focus on the time it takes to perform the particular activity.

24…..subject to it being shown that it is the result of a physical or mental health condition, resting while performing an activity may be relevant to whether the activity can be completed within a reasonable time. It is also accepted that a claimant’s ability to repeat an activity repeatedly (such 8 as taking breakfast lunch and dinner during the day) is a relevant part of an assessment. Accordingly, if a person could not, because of chronic fatigue syndrome, repeat the activity of preparing food having done it once within a 24 hour period, that would, in principle, amount to a relevant difficulty. However, in both these cases, the focus is on the same activity or a claimant’s needs during the activity, such as the need to rest while performing the activity. It is not concerned with the need to rest between different activities, or before performing the activity in the first place.

28.

While [TR v SSWP [2015] UKUT 626 (AAC)] and, equally, [CE v SSWP (PIP) [2015] UKUT 643 (AAC)] suggest that a difficulty arising before an activity is undertaken, where this is the result of a condition, is relevant to the PIP activities, the Respondent notes that the focus in these cases is always on the relevance of ‘repeatedly’ in regulation 4(2A). This is in line with the Respondent’s analysis of the law set out below, that a person’s need to rest between repeating an activity may be relevant to an assessment of whether a person can perform an activity reliably within a 24 hour period. However, there is nothing in these 3 cases to suggest that pacing activities, or resting between different activities, is relevant to a PIP assessment. This is almost certainly because pacing activities and resting between performing different activities is a perfectly normal way of performing the daily living and mobility activities for everyone. 30. The context and structure of the activities in the Regulations means that the focus of an assessment must always be on performing the activities themselves, rather than what is performed before or after them, subject to any issue arising from safely performing an activity after its conclusion.

31.

While policy documents cannot determine the construction of legislation, it is worth observing that the original PIP consultation paper, at paragraph 4.18, brings within the concept of ‘repeatedly’ the notion that completing one activity 10 may adversely affect a person’s “ability to subsequently complete other activities”. This is substantially repeated in PIPAG.

32.

In these respects, the consultation paper and PIPAG accept that it is relevant to have some regard to the impact on a person of performing the daily living activities. To this extent, a holistic approach should be taken to an assessment of a person’s abilities. But this does not mean that resting before performing an activity or between different activities is normally part of an assessment. Rather, it only acknowledges that impacts on a person of performing activities will not be the same for everyone. It is not the case that there is one size fits all.

33…..[although in] Secretary of State for Work and Pensions v. MM [2019] UKSC 34, the UK Supreme Court when considering daily living activity 9 (engaging with other people), concluded that it is relevant to an assessment of a person’s difficulties with this activity to consider a person’s need for support or counselling before they engage with others……….this is inherently related to being able to perform some descriptors in activity 9, in particular 9(c). It does not follow that what happens before other activities are performed is therefore also relevant to an assessment of a person’s ability to perform those other activities…..

35.

The Respondent accepts that a person may not be able to undertake some activities without prompting or encouragement, for example, to get them into the frame of mind to undertake an activity. It follows that prompting before an activity is undertaken will be relevant to an assessment in some cases. However, this is only relevant if the ‘prompting’ is from another person. Similarly, ‘supervision’ requires the continuous presence of another person, implicitly, while the activity is being undertaken. Nowhere do the Regulations envisage support by and for oneself to be relevant to an assessment of a person’s ability to perform activities.”