KT and SH v Secretary of State for Work and Pensions (PIP)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Perez |
| Neutral Citation | [2020] UKUT 252 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Personal independence payment – daily living activities,Personal independence payment – daily living activities - Activity 4: washing,bathing,Perez,R |
| Date | 21 August 2020 |
| Published date | 29 September 2020 |
KT and SH v Secretary of State for Work and Pensions (PIP)
[2020] UKUT 252 (AAC)
KT v SSWP CPIP/3062/2016
SH v SSWP CPIP/2660/2017
1
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Appeal Numbers CPIP/3062/2016
CPIP/2660/2017
Before: Upper Tribunal Judge Perez
Mr Matthew Fraser of counsel for the claimants
Mr Andrew Deakin of counsel for the Secretary of State
A. Decision
1. The claimants’ appeals are allowed.
2. I set aside the part of KT’s First-tier Tribunal decision dated 7 June 2016
(heard under reference SC227/16/00444) that relates to washing and bathing. I also
set aside the part of SH’s First-tier Tribunal decision dated 28 April 2017 (heard
under reference SC241/16/00592) that relates to washing and bathing.
3. I substitute my own decision awarding each claimant two points for washing
and bathing. Those two points, when added to the six daily living points that the
First-tier Tribunal gave in each case, bring the daily living activities total to eight
points for each claimant. That means that each is entitled to an award of the
standard rate of the daily living component of the personal independence payment
(“PIP”). The rest of each First-tier Tribunal decision remains undisturbed.
4. I thank both counsel for their very helpful submissions. I also thank and
commend – for their thorough work – those instructing each counsel: Ms Sajal
Siddiqui of The National Deaf Children’s Society, and Ms Tessa Hocking of the
Government Legal Department.
B. The Grenfell Tower fire
5. Submissions were made about the Grenfell Tower fire. It is discussed in
statistical terms in this decision. But I do not for a moment lose sight of the tragedy
that it was and continues to be. I do not want readers, especially anyone closely
affected by it, to feel that it has become merely a number. It has not.
C. Background
6. KT’s date of birth is 3 August 1998. He was 17 when, on 30 November 2015,
he claimed PIP. That was also the effective date of his claim. SH’s date of birth is
30 September 1998. She too was 17 when, on 25 May 2016, she claimed PIP. The
effective date in her case was 7 September 2016. Both KT and SH have a
significant hearing impairment. They each remove their hearing aids to take a
KT and SH v Secretary of State for Work and Pensions (PIP)
[2020] UKUT 252 (AAC)
KT v SSWP CPIP/3062/2016
SH v SSWP CPIP/2660/2017
2
shower and to take a bath (and I find later in this decision that this is because they
have to do so).
7. The six daily living points given by the First-tier Tribunal to KT comprised: two
points under descriptor 1c for being unable to cook a simple meal using a
conventional cooker but able to do so using a microwave, two points under descriptor
7b for needing to use an aid or appliance to be able to speak or hear, and two points
under descriptor 9b for needing prompting to be able to engage with other people.
The six daily living points given by the First-tier Tribunal to SH were made up slightly
differently from KT's six points. SH’s six points comprised: four points under
descriptor 7c for needing communication support to be able to express or understand
complex verbal information, and two points under descriptor 9b for needing
prompting to be able to engage with other people.
8. In each case, the First-tier Tribunal gave no points for daily living activity 4,
washing and bathing.
9. The claimants each separately appealed to the Upper Tribunal, with my
permission. Their appeals were then linked with each other, at my direction. I so
directed because each appeal was broadly about whether the First-tier Tribunal had
erred in law in relation to washing and bathing in light of the decision of a three-judge
panel of the Upper Tribunal in RJ, GMcL and CS [2017] UKUT 0105 (AAC).
10. The Secretary of State, in written submissions to the Upper Tribunal, asserted
errors of law beyond those on which I had granted permission to the claimants to
appeal to the Upper Tribunal. The Secretary of State abandoned that position
however. So there was no application before me to make a cross-appeal, and no
cross-appeal was before me.
D. Legislation
11. PIP is governed by the Welfare Reform Act 2012 and the Social Security
(Personal Independence Payment) Regulations 2013
1
(“the PIP regulations”). The
legislative detail is at Annex 1 to this decision.
12. Broadly, Part 2 of Schedule 1 to the PIP regulations contains in column 1 a list
of daily living activities. For each daily living activity, there is in column 2 a list of
descriptors. The descriptors for a daily living activity specify needs or impaired
functioning, or both, in relation to that activity. Column 3 says how many points are
merited for each of those descriptors. A score of at least eight daily living points is
needed to qualify for the standard rate of the daily living component (regulation
5(3)(a) of the PIP regulations). A score of at least 12 daily living points is needed to
qualify for the enhanced rate of the daily living component (regulation 5(3)(b)). The
mobility component is not considered in these two Upper Tribunal appeals.
13. Having scored six daily living points each, the claimants each needed only two
more daily living points to be entitled to an award of the daily living component at the
standard rate.
1
S.I. 2013/377, as amended.
KT and SH v Secretary of State for Work and Pensions (PIP)
[2020] UKUT 252 (AAC)
KT v SSWP CPIP/3062/2016
SH v SSWP CPIP/2660/2017
3
14. Regulation 4(2A) and (4) of the PIP regulations provided, at all relevant
times—
“(2A) W here C’s [the claimant’s] ability to carry out an activity is assessed,
C is to be assessed as satisfying a descriptor only if C can do so—
(a) safely”
“(4) In this regulation—
(a) “safely” means in a manner unlikely to cause harm to C or to
another person, either during or after completion of the activity”.
E. RJ, GMcL and CS [2017] UKUT 0105 (AAC)
15. In RJ, GMcL and CS [2017] UKUT 0105 (AAC), a three-judge panel of the
Upper Tribunal addressed how to determine whether washing and bathing can be
carried out safely, as required by regulation 4(2A)(a) and as defined by regulation
4(4)(a). The three-judge panel said—
“Safety and supervision: overall conclusion
56. In conclusion, the meaning of “safely” in regulation 4(2A) and as
defined in regulation 4(4) is apparent when one considers the legislation as
a whole and with the assistance of the approach by the House of Lords to
the likelihood of harm in the context of protecting people against future
harm. An assessment that an activity cannot be carried out safely does not
require that the occurrence of harm is “more likely than not”. In assessing
whether a person can carry out an activity safely, a tribunal must consider
whether there is a real possibility that cannot be ignored of harm occurring,
having regard to the nature and gravity of the feared harm in the particular
case. It follows that both the likelihood of the harm occurring and the
severity of the consequences are relevant. The same approach applies to
the assessment of a need for supervision.
[…]
CS
63. CS had to remove her cochlear implant processors in order to bathe.
Without the implants she was profoundly deaf and, she said, would not
have been aware of a fire, burglary or other unexpected emergency which
would normally be detected by sound. Thus it was necessary for someone
to be present in the house in order to alert her should such an event occur.
On our analysis of regulation 4 and “supervision”, these facts would
indicate that she needed supervision to bathe.
[…]
68. It follows that CS’s appeal succeeds on this ground. Despite our
observation that, on the facts asserted by CS and summarised at [63]
above, descriptor 4c would seem to apply, we do not re-make the decision.
It is appropriate that a tribunal determines on the facts the nature and
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