TK v Secretary of State for Work and Pensions (PIP)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Markus |
| Neutral Citation | [2020] UKUT 22 (AAC),[2020] UKUT 22 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Personal independence payment – daily living activities,Personal independence payment – daily living activities - Activity 2: taking nutrition,Personal independence payment – daily living activities - Activity 3: managing therapy or monitoring a health condition,Markus,K |
| Date | 17 January 2020 |
| Published date | 03 March 2020 |
TK v Secretary of State for Work and Pensions (PIP) [2020] UKUT 22 (AAC)
1
IN THE UPPER TRIBUNAL Appeal No. CPIP/455/2017
ADMINISTRATIVE APPEALS CHAMBER
On appeal from the First-tier Tribunal (Social Entitlement Chamber)
Between: TK Appellant
- v –
Secretary of State for Work and Pensions Respondent
Before: Upper Tribunal Judge K Markus QC
Decision date: 17th January 2020
Representation:
Appellant: Mr Tom Royston (counsel) instructed by Child Poverty Action Group
Respondent: Ms Katherine Apps (counsel) instructed by Department for Work and
Pensions
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-
tier Tribunal made on 23 July 2016 under number SC168/16/00942 was made in
error of law. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and
Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered
by a fresh tribunal in accordance with the following directions.
Directions
1. This case is remitted to the First-tier Tribunal for reconsideration at an
oral hearing.
2. The members of the First-tier Tribunal who reconsider the case should
not be the same as those who made the decision which has been set
aside.
3. The parties should send to the relevant HMCTS office within one month
of the issue of this decision, any further evidence upon which they wish
to rely.
4. The new tribunal will be looking at the appellant’s circumstances at the
time that the decision under appeal was made, that is the 5th January
2016. Any further evidence, to be relevant, should shed light on the
position at that time.
TK v Secretary of State for Work and Pensions (PIP) [2020] UKUT 22 (AAC)
CPIP/455/2017
2
5. The new First-tier Tribunal is not bound in any way by the decision of the
previous tribunal. It will not be limited to the evidence and submissions
before the previous tribunal. It will consider all aspects of the case
entirely afresh and it may reach the same or a different conclusion to the
previous tribunal.
These Directions may be supplemented by later directions by a Tribunal
Judge in the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
Introduction
1. The Appellant (‘TK’) is a young man (19 years old at the date of the Secretary of
State’s decision) who suffers from a range of health conditions: cystic fibrosis,
pancreatic insufficiency, chronic pseudomonas, chronic staph aureus and
asthma. He had been in receipt of the middle rate of the care component of
disability living allowance, the last award having commenced on 18th March 2014.
2. On 1st October 2015 TK made a claim for Personal Independence Payment
(‘PIP’). He completed a claim form and submitted medical evidence in support of
his claim. He was assessed by an ATOS physiotherapist on 15th December 2015.
On 8th January 2016 the Secretary of State notified him that his DLA would end
on 2nd February 2016 and that he was not entitled to PIP. He had been assessed
as scoring no points for either the daily living or the mobility component. That
was the decision which the Appellant appealed to the First-tier Tribunal.
3. The First-tier Tribunal found that TK scored 2 points for each of descriptor 1c and
3c, and so he was not entitled to PIP. I gave TK permission to appeal in relation
to the tribunal’s approach to activities 1 and 3. Although I expressed doubts
about TK’s grounds in relation to activity 2, I did not refuse permission to appeal
in that regard. Following the provision of written submissions by both parties, as
to which TK was assisted by the Cystic Fibrosis Trust, and in the light of the
difficulty and importance of some of the issues raised, I directed an oral hearing.
By the time of the hearing the Secretary of State’s position was that the First-tier
Tribunal had erred in law and that the case should be remitted to another tribunal
for reconsideration. However, the parties were not entirely agreed as to the basis
on which the appeal should be considered. Following the hearing, with my
permission counsel sent further written submissions addressing issues that had
arisen in the course of the hearing. I am grateful to counsel for all their written and
oral submissions.
Legal Framework
4. Personal Independence Payment (‘PIP’) replaced disability living allowance
(‘DLA’) for people aged between 16 and 64 years. Entitlement to the care
component of DLA is governed by section 72 of the Social Security Contributions
and Benefits Act 1992, and the basic conditions are as follows:
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SO v Secretary of State for Work and Pensions (PIP)
...standard and not the food and drink consumed.” 19. The second decision is that of Upper Tribunal Judge Markus KC in TK v SSWP [2020] UKUT 22 (AAC). The case concerned whether a claimant who needed prompting to go on eating enough fell within the scope of Activity 2 and required prompting. T......