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PIP Activity 4: When assessing a claimant’s ability to wash and bathe, a tribunal must consider whether they can do so within a reasonable time period.

6th January, 2022

NH v. Department for Communities (PIP) [2021] NI Com 37

Background

The claimant claimed PIP on the basis of needs arising from hearing loss, anxiety and autism. She was awarded four points for daily living and four points for mobility. Her claim for PIP was refused and she appealed. The tribunal allowed her appeal, awarding six points for daily living and ten points for mobility, entitling her to standard rate mobility. She appealed to the Social Security Commissioner.

Legal issue

The claimant’s appeal focused on daily living Activity 4: Washing and bathing, and in particular the length of time she takes to wash and bathe. The question was whether the claimant’s showering habits meant she was unable to wash and bathe within a reasonable time period.

Regulation 4(3) Personal Independence Payment (NI) Regulations 2016 states:

‘Where [the claimant’s] ability to carry out an activity is assessed, [the claimant] is to be assessed as satisfying a descriptor only if [the claimant] can do so – (a) safely; (b) to an acceptable standard; (c) repeatedly; and (d) within a reasonable time period’. [Emphasis added]

Regulation 4(5) provides that ‘reasonable time period’ means no more than twice as long as the maximum period a person without that disability would normally take to complete that activity.

The claimant gave evidence to the tribunal that she showers daily at 9pm for an hour or so and has to be prompted to get out of the shower. On some days she showers more than once. One industry source, referred to during the claimant’s appeal to the Social Security Commissioner, indicated that in Great Britain the average person spends 7-8 minutes in the shower.

Before the Commissioner, the parties agreed that the tribunal erred in law by failing to properly consider whether the claimant is able to wash and bathe within a reasonable timeframe. The Department acknowledged that if the claimant is only able to shower within a reasonable timeframe with prompting, she would satisfy descriptor 4c and be entitled to two additional daily living points. Those two points would put her above the threshold for an award of standard rate daily living.

The Department further conceded that the tribunal failed to consider the reasonable time test in relation to Activity 6: Dressing and undressing.

Decision

The Commissioner agreed that the tribunal erred in law by failing to properly consider Regulation 4 in relation to Activities 4 and 6. The Commissioner allowed the claimant’s appeal and set aside the decision of the tribunal.

The Commissioner decided to make the decision the tribunal should have made. His reasons for taking this step were threefold. First, the delay caused by referring the case to a new tribunal would be unfair on the claimant. Secondly, the appeal was concerned with a past and closed period. Thirdly, he had sufficient evidence on the file to decide the appeal.

The Commissioner decided that it was clear from the evidence that the claimant took more than twice the normal period to shower and that she required prompting to end her shower. The Commissioner was satisfied that this behaviour related to the claimant’s health conditions. The Commissioner had direct evidence from the claimant and her appointee on this issue. He also had medical evidence in the form of a report by Child & Adolescent Assessments (NI) which detailed restricted, repetitive and stereotyped patterns of behaviour, including showering.

The Commissioner decided that on the majority of days, the claimant cannot complete her shower within a reasonable timeframe without being prompted by a member of her family. He awarded the claimant an additional two points under descriptor 4c.

The Commissioner did not decide whether the claimant should be awarded points under descriptor 6c because an additional two points would not have made a material difference to her award.

The Commissioner remade the tribunal’s decision, awarding the claimant 10 points for mobility, entitling her to standard mobility component, and 8 points for daily living, entitling her to standard daily living component for three years from August 2017 until August 2021.

For a full copy of the Judgment: click here