[2025] UKUT 252 (AAC)

As I have suggested above, the correct approach to determining whether the appellant could satisfy (i.e., complete) any of the descriptors in issue on the appeal “repeatedly”, may well cover issues around whether the appellant needed to rest before carrying out a descriptor again. The appellant rightly accepts that that need for rest would have to arise from his physical or mental condition. To this extent, whether rest before an activity is undertaken is also relevant to whether the appellant could carry out the activity within a reasonable period of time may not matter in fact, or at least matter less. However, the issue of statutory construction has been raised by the FTT when giving permission to appeal. It also needs to be addressed in order to properly direct the new FTT to which this appeal is being remitted on the law.

In my judgement, resting before an activity or a descriptor under it is carried out is not part of the time within which the activity (or descriptor) is undertaken. This is for several interlocking reasons.

First, I reject the appellant’s attempt to argue by analogy with the Upper Tribunal decisions which have addressed other criteria within regulation 4(2A), most notably the decisions which have addressed the “repeatedly test. Those decisions are all in rooted in the particular legislative provision with which they were concerned and are not authority for any wider legal principle about taking account of matters before an activity is undertaken.

Second, had it been intended that matters arising before the PIP activities are undertaken should generally be taken into account, such statutory intendment could have been provided for more easily and in clearer language. As I have noted in paragraph 35 above, the potential need to have regard to rest before a PIP claimant repeats the activity or descriptor is because of the requirement of regulation 4(2A)(c) of the PIP Regs. Further, where it has otherwise been necessary to consider actions before a descriptor is satisfied, the legislative text provides for this expressly (see footnote 1 above). No such language appears in regulation 4(2A)(d). Nor does it arise by necessary implication.

Third, the statutory language in sections 78(1) and 79(1) the WRA is about measuring the limitations (caused by their physical or mental condition) on a person’s ability to carry out the daily living or mobility activities. That is a verb phrase which has its focus on the performance of the task (e.g. “taking nutrition” or “dressing and undressing”) rather than steps anterior to the carrying out of the task. It is perhaps noteworthy that the appellant’s arguments did not seek to grapple with the statutory language.

Fourth, consistently with section 80(1) and (3) of the WRA, assessing the “ability to carry out activities” is the heading to regulation 4 of the PIP Regs. Regulation 4(1) is concerned with whether the claimant has limited or severely limited ability to carry out daily living or mobility activities. Again, this has a statutory focus on the performance of the activities as the means of measuring the claimant’s limitation rather than any wider focus.

Fifth, the language of regulation 4(2A)(d) is, in my judgement, just as focused on the claimant’s ability to perform the activity. What is being assessed is the PIP claimant’s ability to carry out an activity, and what that involves in terms of the descriptors within an activity is that the claimant will only satisfy a descriptor if they can do so within a reasonable time period. Logically, the word “within” can only be measured on the basis of a start and end point for satisfying the descriptor. Although regulation 4(4)(c) of the PIP Regs might seem to muddle up the activity and the descriptors under it, it seems tolerably clear that what is meant by “satisfying” the descriptor “within” a reasonable time period is the point at which the descriptor (or activity) is completed. That provides the end point. But it also in my judgement indicates the statutory intendment that the beginning point for measuring the “within” is when the activity or descriptor was started, because an act or activity cannot be completed unless it has been started. What regulation 4(2A)(d) is assessing is whether the PIP claimant can satisfy (and in this particular context this means complete) the descriptor within a reasonable time period. The only sensible means of measuring this, and thus of construing regulation 4(2A)(d) of the PIP Regs, is that it is concerned with measuring the time it takes the PIP claimant to complete the relevant activity or descriptor once they have started to undertake it (i.e., started to carry it out).

In answer to the FTT’s grant of permission to appeal, the FTT did not err in law in excluding from its consideration the time spent before any relevant PIP activity or descriptor was undertaken in deciding whether the appellant could complete the activity or descriptor within a reasonable time period under regulation 4(2A)(d) of the PIP Regs.