RJ, GMcL and CS v Secretary of State for Work and Pensions v RJ (PIP)
| Jurisdiction | UK Non-devolved |
| Judge | Lady Carmichael,Judge Knowles,Judge Markus |
| Neutral Citation | [2017] UKUT 105 (AAC),[2017] UKUT 105 (AAC),[2017] AACR 32 |
| Subject Matter | Personal independence payment – general,Three Judge Panel |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 09 March 2017 |
[2017] AACR 32
(RJ v SSWP)
(Three-Judge Panel)
1
[2017] AACR 32
RJ, GMcL and CS v Secretary of State for Work and Pensions (PIP)
[2017] UKUT 105 (AAC))
Lady Carmichael CSPIP/97/2016
Judge Knowles QC CSPIP/106/2016
Judge Markus QC CSPIP/385/2016
9 March 2017 CPIP/1599/2016
Personal independence payment – assessment of activity – interpretation of “safely” in
regulation 4(2A) and (4) – assessment of likelihood of harm - interpretation of “safety” for
the purpose of supervision in Part 1 of Schedule 1
Each of the three appellants made claims for personal independence payments (PIP). RJ suffered from epilepsy and
was at risk of seizures which could occur without warning. The Department for Work and Pensions decided she was
not entitled t o PIP. She appealed to the First-tier Tribunal (F-tT). The F-tT decided that she n eeded supervision to
make a meal, assistance to manage therapy while she was suffering a seizure and in the hours after, and prompting
or encouragement to shower. It also found that the risk of suffering a seizure meant she needed to be encouraged and
accompanied to go out and so awarded h er points for needing prompting to undertake a journ ey. Due to the
infrequency of the seizures however, it found that she was conscious most of the time and could move around freely
and so awarded her no points for mobility activit y 2. She was a warded the daily living component but n ot the
mobility component of the award. She appealed to the Upper Tri bunal on the ground that the supervision
requirements which a pplied to the relevant daily living activities applied equally t o th e mobility activities and the
Secretary of State cross-appealed against the award for daily living activities 1 and 3. GMcL suffered from epilepsy,
depression and anxiety, and was at risk of seizures which could occur at any time without warning. On his appeal to
the F-tT against a decision refusing him PIP, the F-tT found that given the infrequency of the seizures he would not
require supervision or assistance to carry out the r elevant daily living and mobility activities for th e majority of th e
time. CS was profoundly deaf and used cochlear implants which she was unable to wear in the bath. She claimed to
require supervision because she would not hear a fire alarm while she was bathing, and that she needed someone
with her when outside because she could not hear cars or warning noises, h ad poor road sense and ha d difficulty
understanding instructions and timetables. The Secretary of State decided she was not entitled to PIP and she
appealed to the F-tT. The F-tT found that there was only a remote possibility of a fire occurring while CS was in the
bath and that was a minimal risk when assessing the safety of the activity. It found that, while she preferred to be
accompanied when out for reassurance, using her hearing and vision she was able to be safe when following a route.
The F-tT rejected CS’s claims for points under activities 8 or 10. The principal issue before the three-judge panel of
the Upper Tribunal was the interpretation of the word “safely” as defined in r egulation 4(4), and of the word
“safety” in the phrase “for the purpose of ensuring C’s safety” in the definition of supervision in Part 1of Schedule 1
of the Social Security (Personal Independence Payment) Regulations 2013.
Held, allowing the appeals, that:
1. the meaning of “safety” in the definition of “supervision” in Part 1 of Schedule 1 of th e PIP Regulations
was to be approached consistently with “safely” in regulation 4(4)(a) (paragraph 27);
2. an assessment under paragraph 4(2A)(a) of the PIP Regulations that an activity cannot be carried out safely
did not require that the occurrence of harm was “more likely than not”, a tribunal must consider whether there was a
real possibility t hat could not be ignored of harm occurring, having regard to the nature and gravity of the feared
harm in the particular case. Both the likelihood of the harm occurring an d the severity of the consequences were
relevant (paragraphs 33, 37 and 56);
3. if, for the majority of da ys, a claimant was unable to carry out an activity safely or required supervision to
do so, then the relevant descriptor applied. That may be so even though the harmful event or the event which
triggered the risk actually occurred on less than 50 per cent of the day (paragraphs 54 to 55);
4. the same approach applied to the assessment of a need for supervision (paragraph 56).
The Upper Tribunal set aside the First-tier Tribunal’s decision and r emitted the case for hearing before a differently
constituted tribunal.
[2017] AACR 32
(RJ v SSWP)
(Three-Judge Panel)
2
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The decision of the Upper Tribunal is to allow the appeals.
The decisions of the First-tier Tribunals are set aside under section 12(2)(a) and (b)(i) of the
Tribunals, Courts and Enforcement Act 2007 and the appeals are remitted to be reconsidered by
fresh tribunals in accordance with the following directions.
Directions
1. These cases are remitted to be reconsidered by First-tier Tribunals, each comprising
members who are not the same as those who made the decisions which have been set
aside.
2. The parties should send to the relevant HMCTS offices within one month of the
issue of this decision, any further evidence or submissions upon which they wish to
rely.
3. The new tribunals will be looking at the claimants’ circumstances at the times that
the decisions under appeal were made. Any further evidence, to be relevant, should
shed light on the position at those times.
4. The new First-tier Tribunals will consider all aspects of the appeals entirely afresh.
These Directions may be supplemented by later directions given by a Tribunal Judge in
the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
1. Entitlement to personal independence payment (PIP) is determined by assessment of a
claimant’s ability to carry out specified daily living and mobility activities. A claimant is not to
be assessed as able to carry out an activity unless she or he can do so safely. The central question
in these appeals concerns the meaning of “safely” in this context, in particular the correct
approach to the assessment of the likelihood of harm in the definition of “safely”.
Legislative framework
2. Entitlement to PIP is governed by the Welfare Reform Act 2012. There are two
components: daily living and mobility. By section 78 a person is entitled to the daily living
component if their ability to carry out daily living activities is limited (standard rate) or severely
limited (enhanced rate) by their physical or mental condition. Section 79 makes similar provision
for entitlement to the mobility component if their ability to carry out mobility activities is limited
or severely limited by their physical or mental condition. The Social Security (Personal
Independence Payment) Regulations 2013 (SI 2013/377) (“the Regulations”), made under
section 80 of the 2012 Act, provide for determination of whether a person’s ability to carry out
daily living or mobility activities is limited or severely limited by their physical or mental
condition.
3. The daily living and mobility activities which form the basis of assessment are set out in
Schedule 1 to the Regulations. Each activity is subdivided into descriptors representing degrees
of limitation in carrying out the activity, each of which attracts a specified number of points. The
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