Kate Smith takes a look at some Upper Tribunal decisions on PIP criteria to see how they assist advisers to make sense of the benefit (or not).
The Upper Tribunal decisions published so far give support and guidance on the correct interpretation and application of the PIP rules. There is not enough space to examine all of the case law on daily living activities, so this article will concentrate on the decisions that look more generally at how the criteria should be applied, and those that deal with ‘aids and appliances’.
Duration of PIP awards
When introducing PIP, the government made clear its intention that the default position would that PIP awards would be for a fixed period. To this end, section 88 Welfare Reform Act 2012 provides that a PIP award is to be for a fixed length unless this would be inappropriate. It further states that in deciding whether a fixed term award would be inappropriate, the decision maker must have regard to guidance issued by the Secretary of State. At the date the Upper Tribunal decided UK/5459/2014  UKUT 85(AAC), no such guidance had been issued.
The Judge reviewed section 88 and highlighted that the only guidance available to PIP ‘case managers’ is contained in the guidance manual - Advice for Decision Makers - and this was flawed in that it did not refer to the possibility of making indefinite awards. The Judge encouraged the Secretary of State to redraft this guidance to reflect the possibility of indefinite awards and went on to give guidance in which he confirmed that the stability or otherwise of the individual’s relevant limitations is a key consideration. A factor in favour of deciding that a fixed term award would be inappropriate is where no material change is expected. It would not necessarily be wrong to make a fixed term award even if stability of the conditions was reasonably likely, but there will be cases where the prospect of an improvement is remote enough that the only reasonable decision is that a fixed term award would be inappropriate.
It is clear that indefinite awards of PIP will only be made in exceptional cases, and in the absence of further guidance from the Secretary of State, it will be open to decision makers and Tribunals to make an indefinite award if the chances of improvement in the claimant’s condition are remote.
Those who represent at Tribunals will appreciate the impact a claimant’s behaviour, demeanour and appearance at a hearing can have on the panel. CPIP/2433/2015  UKUT 692 (AAC) considers the extent to which a Tribunal can rely on their observations when making a decision. In this case, the Tribunal’s statement of reasons recorded that the claimant was upset for a short period at the start of the hearing, but recovered quickly and displayed a very high level of concentration, logical thought and good communication skills throughout the rest of the hearing. These observations were relied on when awarding points for activity 9 and mobility activity 1, though there was nothing to show that the claimant had been given the opportunity to comment on the observations.
In deciding the case, the Judge referred to R(DLA)8/06, which summarises the principles relating to the reliance by Tribunals on observations made at hearings. A Tribunal was entitled to take relevant and reliable observations into account. However, a failure to give a claimant the opportunity to comment on the observations may be an error of law. If the observations helped formulate the Tribunal’s conclusions as opposed to confirm conclusions that the Tribunal would have reached anyway, there may be an error of law because fairness required that the observations were put to the claimant for comment and asking for a response.
This decision reinforces that a Tribunal which relies on observations made at a hearing and who does not put those to the claimant for comment risks going wrong in law, particularly where they do not rely on other evidence to support their conclusion.
In CPIP/2287/2015  UKUT 643 (AAC), the Judge considered the correct application of regulation 4 Personal Independence Payment Regulations 2013 in relation to claimant who experienced night time seizures but who had at least once experienced a daytime seizure. The Tribunal awarded 8 points under activity 1 on the basis that the principle of a remote but dire risk applied (as established by the Court of Appeal in Moran v Secretary of State for Social Services ), and that the claimant would be at genuine risk if she tried to prepare and cook a meal.
Briefly, regulation 4 requires a claimant to be able to carry out an activity safely; to an acceptable standard; repeatedly; and within a reasonable time period. The Judge considered both the wording of the Regulation, and after acknowledging that it was not binding, the government’s response to the consultation on the PIP assessment criteria and regulations published on 13 December 2012. He concluded that the definition of ‘safely’ focused on the likelihood of harm being caused as opposed to the gravity of any harm if it is caused. Decision makers and Tribunals must therefore focus on the likelihood of an event occurring not the degree of harm likely to be caused if it does.
The Tribunal had also gone wrong by not considering whether the claimant would be able to perform the daily living and mobility activities and descriptors repeatedly on the morning after a night time seizure. Noting that the regulations require the claimant to be able to repeat the descriptors as often as reasonably required, and highlighting that the government’s response states ‘if a descriptor applies at any point during a 24 hr period, it should be considered as applying on that day’, the Judge decided that a descriptor will be met if the claimant is unable to perform it for only part of a day.
A similar conclusion was reached in another decision, CPIP/2054/2015  UKUT 626 (AAC). These are useful decisions for people who have a condition which means they are unable to perform a descriptor for part of a day but who would be able to manage it at other times of the day. For example, a claimant who has a condition causing prolonged joint and body stiffness in the morning may satisfy some of the descriptors if they cannot perform the descriptors as often as is reasonably required.
Less favourable decisions
Case law, including CDLA/884/2008, clearly establishes that a Tribunal may go wrong if they do not give a claimant a warning that the appeal could result in a less favourable decision being made. In CSPIP/33/2015  UKUT 155 (AAC), the Judge considered the duty of a Tribunal dealing with such a case to give the claimant a chance to comment on new issues that arise during the hearing.
In this case, the claimant had appealed a decision that she was not entitled to the daily living component of PIP. At the hearing the Tribunal warned that the standard rate mobility award may be at risk, went ahead with the hearing with the claimant’s consent and decided that she was not entitled to either the daily living or mobility components of PIP.
The Judge could see no reason why the Tribunal should have wanted to consider whether the award of mobility component was too generous. The award was fully reasoned, even if the claimant did challenge it on the ground that Regulation 4 was not taken fully into account. The Tribunal’s decision to consider whether to remove the mobility component led to precisely the kind of error envisaged in CDLA/884/2008. The Tribunal relied on the claimant’s evidence that she could walk from home to her G.P.’s surgery and on what she did while on holiday, when she could not know that those matters would be crucial to the Tribunal’s decision. This deprived the claimant of the opportunity to correct any errors by the Tribunal and amounted to serious breaches of the requirement of fairness.
This case makes clear that a Tribunal who are considering exercising the power to remove or reduce an award must not only give a warning to the claimant (giving them an opportunity to consider whether to go ahead with the appeal) but must also make sure that the claimant has a chance to comment on, and correct facts being relied on by the Tribunal.
Variable and fluctuating conditions
Unlike DLA the rules for PIP provide a formula for working out whether a descriptor is met by a claimant who may not satisfy the condition on each and every day. When dealing with a claimant who has a variable or fluctuating condition, the Upper Tribunal has confirmed that the ‘broad brush’ approach, established in the case of Moyna v SSWP  UKHL 44 in relation to DLA does not apply. In CSPIP/754/2014  UKUT 144 (AAC), the Judge considered that although PIP deals with the same group of claimants as DLA, it has different and distinct statutory criteria of entitlement. In particular, regulation 7 of the Personal Independence Payment Regulations 2013 makes provisions for variability using the 50% rule and as such clearly provides for ‘an arithmetic formula’ to be used.
This decision confirms that claimants with variable or fluctuating conditions will only score points under a descriptor if they show that they meet the descriptors for at least 50% of the time. There is no room for using a ‘broad brush’ approach when applying the descriptors and a decision maker or Tribunal must apply the 50% rule when deciding if a descriptor is met.
The mathematical approach has also been confirmed in another decision. In UK/972/2015  UKUT 620 (AAC), the Judge considered a case where the claimant had two separate conditions the effects of which fluctuated from day to day. The Judge set aside the Tribunal decision that had found the descriptors were not met for 50% of the time, finding that they had erred in law by failing to make sufficient findings of fact to determine whether the effects of each of the claimant’s conditions would, independently, satisfy sufficient descriptors for at least 50% of the time. It also erred by assuming that both health conditions affected her on the same days in a typical week.
Although it placed a burden on the Tribunal, the probability of either of two events occurring must be calculated by the formula: Probability (A or B) = Probability (A) plus Probability (B) minus Probability (A and B). Having undertaken the calculation, there was a probability of the claimant meeting the descriptors on more than 50% of days. The Judge set aside the Tribunal decision and remitted to a new Tribunal.
Advisers will need to make sure claimants present evidence and information about the frequency with which they meet the descriptors and make use of their mathematical skills when advising people with variable conditions.
Risk requiring supervision need not be related to a particular activity
In CPIP/1671/2015  UKUT 680 (AAC), the Judge confirms that a risk giving rise to a need for supervision need not be related to the activity in question. In this case, the claimant had angioedema which could cause his throat to swell up and cut off the air supply to his lungs causing him to pass out. If he had warning he could administer his epipen but often he had no warning and simply passed out and needed assistance to administer the medication. One question for the Tribunal was whether the supervision he required as a result could count for the purposes of activity 1 ‘preparing and cooking a simple meal’ as it was not a risk unique to the activity.
The Judge decided that the issue for the Tribunal was whether the claimant had a need for supervision when cooking. If he did, it did not matter whether that need was specifically related to that activity or was a general one that would affect other activities and even exist when the claimant was doing nothing at all. The descriptor was satisfied. This applies whether the other activities affected are within the scope of personal independence payment or not. The same applies for all activities, including planning and following journeys.
This is a sensible decision confirming that a claimant who requires supervision (i.e. the continuous presence of another person for the purpose of ensuring his safety) regardless of what they are doing, will meet the point scoring descriptors even where supervision is not connected to the activity.
Aids and appliances
Several of the daily living and mobility activities include descriptors that award points where a claimant is only able to carry out an activity with the use of an aid or appliance. Advisers need to be alert to the points that can be gained by a claimant who relies on aids to carry out the activities and understand what may count.
Regulation 2 Personal Independence Payment Regulations 2013 explains that an ‘aid or appliance’:
(a) means any device which improves, provides or replaces C’s impaired physical or mental function; and
(b) includes a prosthesis;
There have been several Upper Tribunal decisions looking at what constitutes an aid and they confirm that the term ‘aid’ has a broad meaning and that an ‘aid’ does not need to be a specialist device designed specifically for that purpose. The decisions also emphasise that that the type of ‘aid’ itself is perhaps not as important as the need for the person to use it to be able to carry out the activity. The fact that other people may choose to use a device to carry out an activity is not so relevant, if a disabled person cannot carry out the activity without the aid they will satisfy the descriptor.
In CPIP/2168/2015  UKUT 572 (AAC), the Judge decided that an ordinary chair or bed can constitute an ‘aid’ in relation to activity 6 ‘dressing and undressing’ providing it is required to enable the claimant to dress/undress. At paragraph 12 of the decision Judge Mark says:
‘the question is not whether other people might choose to use a chair or a bed to assist when dressing or undressing, but whether a claimant is unable to dress or undress without using them or some other qualifying aid or appliance.’
The Judge here was happy that a bed could be an aid to assist in dressing/undressing. However, in a later decision, CPIP/3369/2015  UKUT 197 (AAC), Judge Jacobs decided that a need to sit on a bed or chair does not mean an aid is being used. In order to be relevant, an aid or appliance must relate in some way to the particular activity, this was the connection argument. Many people with no functional limitation choose to sit on a bed while dressing and undressing even though they could do so standing. It was a normal or usual way of carrying out the activity. Although the claimant in this case may have been unable to dress and undress standing up, she could do so while sitting on her bed, which was an equally common way of carrying out the activity. The bed was not, therefore, an ‘aid’ which enabled her to overcome a functional inability to dress or undress. Needing to sit does not show an impaired function for carrying out the activity, but only for one manner of carrying out the activity.
As both are decisions of a single Upper Tribunal Judge, First Tier Tribunals are able to follow either CPIP/2168/2015 or CPIP/3368/2015, but as Judge Jacobs decision is later and considers CPIP/2168/2015, it may be viewed as having greater weight.
In CPIP/1695/2015  UKUT 546 (AAC) Judge Wright decides that levered taps can be an ‘aid’ for the purpose of preparing food. In the case he was dealing with evidence that the claimant had arthritis in his hands and had had lever taps fitted in his kitchen to assist him. The Judge found that this supports both that he needed to use the lever taps to be able to prepare food and that they are an aid in the statutory sense.
In UK/4056/2014  UKUT 275 (AAC), Judge Wright considers the question again in relation to a walking stick or stool used by a claimant when preparing and cooking food. At paragraph 6 of the decision Judge Wright says;
‘….the definition for ‘aid’ is very broad, meaning ‘any device which improves, provides, or replaces [a claimant’s] impaired [physical or mental] function’. It is not a specialist device… On this definition it seems to me that a stool (or walking stick) is a device which improves (walking stick) or replaces (stool) the appellant’s impaired function of standing.’
CPIP/1787/2015  UKUT 570 (AAC) illustrates the point that ordinary devices can count as aids. In that case the Judge accepted that a brush or shower head used for cleaning the body after using the toilet can be an aid or appliance. On the facts of this case a shower head or brush would fall within the definition of an aid or appliance. The claimant used them to replace the function of wiping himself using toilet paper with his hand in order to clean himself after going to the toilet.
Advisers will need to keep up to date with new case law as it will continue to shape and interpret the PIP rules to aid understanding of the benefit.
Kate Smith works for Citizens Advice Expert Advice team and is a member of the Adviser editorial board.
This article was first published in Issue 176 of Adviser magazine (July/August 2016)