CK v SSWP (PIP); JM v SSWP (PIP)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ward |
| Neutral Citation | [2022] UKUT 122 (AAC) |
| Subject Matter | Human rights law - article 14 (non-discrimination),Ward,C |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 25 May 2022 |
CK v SSWP (PIP); JM v SSWP (PIP)
[2022] UKUT 122 (AAC)
1
IN THE UPPER TRIBUNAL Appeal Nos: UA-2018-002190-PIP
ADMINISTRATIVE APPEALS CHAMBER UA-2020-000227-PIP
Previously: CPIP/2427/2018
CPIP/1721/2020
On appeal from First-tier Tribunal (Social Entitlement Chamber)
Between: (1) CK
(2) JM Appellants
- v –
Secretary of State for Work and Pensions Respondent
Before: Upper Tribunal Judge Ward
Hearing dates: 19 July and 13 September 2021 (with brief post-hearing written
submissions)
Representation:
Appellant: Tom Royston, instructed by Kirklees Law Centre
Respondent: Jack Anderson and Fiona Paterson, instructed by Government
Legal Department
DECISION
The decision of the Upper Tribunal is to dismiss the appeals.
REASONS FOR DECISION
1. These two appeals raise, by differing routes, whether it is lawful for tribunals to
give effect to Regs 2(2) and 2(3) of the Social Security (Personal Independence
Payment) (Amendment) Regulations 2017 (SI 2017/194). In this decision I refer to
the statutory instrument as “the 2017 Regulations” and regs.2(2) and 2(3) as “the
2017 amendments”. The 2017 amendments amended Schedule 1 of the Social
Security (Personal Independence Payment) Regulations 2013 (SI 2013/377) (“the
2013 Regulations”) in relation to Activity 3 (“Managing therapy or monitoring a health
condition”) and related parts of Part 1 of the Schedule, dealing with Interpretation.
2. The 2017 amendments were made in an attempt to reverse the decision of the
Upper Tribunal in SSWP v LB (PIP) [2016] UKUT 0530 (AAC). A summary relied
CK v SSWP (PIP); JM v SSWP (PIP) [2022] UKUT 122 (AAC)
CK -v- SSWP (PIP) Case nos: UA-2018-002190-PIP
JM -v- SSWP (PIP) UA-2020-000227-PIP
2
upon by both parties explains the effect of that decision as being that “support to
manage medication or monitor a health condition could in certain circumstances also
count as support to manage therapy, and could therefore again score 2 or more
points depending on the number of hours involved per week, rather than being
limited to a score of 1… “. Mr Royston summarises the effect of the 2017
amendments as being to
“restrict a need for support with a medication and a health monitoring
regime to scoring a single point under descriptor 3b, however complex and
temporally extensive the required support and however serious the
consequences of non-compliance.”
While accurate, it should not be inferred from that that all those with such a need
were necessarily able to score more than a single point even under the 2013
Regulations.
3. In LB at [34], Upper Tribunal Judge Mesher summarised his preferred reading
(“alternative interpretation A”) of the provisions as they originally stood (which may
discerned by leaving out of account the effect of the marking-up at [10] below):
“The essence of alternative interpretation A […], is that descriptor 3(b)(ii)
does not apply if supervision, prompting or assistance is needed for both
managing medication and monitoring a health condition and only applies if
it is needed for one only of those alternatives. It also does not apply if the
supervision etc is needed for elements of what would ordinarily be
regarded as therapy that go beyond either managing medication or
monitoring a health condition within the meaning of descriptor 3(b)(ii). In
both those circumstances in which descriptor 3(b)(ii) does not apply, the
case would potentially fall within the therapy provisions in descriptors 3(c)
– (f), depending on how far the supervision etc relates to something that
can properly be called undertaking therapy and with the scale of points
depending on the time for which the supervision etc is needed. All
elements of therapy in its ordinary meaning could then be considered,
including any taking of medication or monitoring of a health condition. If
the need for supervision etc is limited to one or other of those alternatives
in descriptor 3(b)(ii), then in order to allow the descriptor to have any
practical application the application of descriptors 3(c) – (f) would be
excluded.”
The appellants
4. Both appellants have Type 1 diabetes.
5. The following should be understood as description for the purposes of this
decision, rather than as findings of fact. JM is a very heavy sleeper. For his Type 1
diabetes, which is relatively uncontrolled, he requires a catheterised insulin infusion
pump which automatically dispenses insulin into his blood and also sounds an alarm
when he is at risk of hypoglycaemia or hyperglycaemia and human intervention is
required. In those circumstances he may not wake and cannot be woken. His
mother has to attend to him to administer glucose tablets or other tablets while he
sleeps. JM contends that he needs supervision, prompting or assistance with those
matters, taking more than 14 hours a week.
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