Clarifying the meaning of Activity 4 Washing and Bathing and the meaning of the descriptor ‘needs assistance to get in or out of a bath or shower’.
DMCK v DfC (PIP) 2022 NI Com 71
The applicant had appealed a decision to only award the standard rate of the daily living component. The appeal tribunal upheld this decision.
The applicant was represented by the Law Centre and the issue turned on whether the correct number of points had been awarded under the descriptor 4(e) namely, ‘needs assistance to be able to get in or out of a bath or shower.’ If this descriptor applied then the applicant would have sufficient points to establish entitlement to the enhanced rate of the daily living component.
The Social Security Commissioner consider the Upper Tribunal decision in SP v SSWP (2016) AAC 43 in which the Upper Tribunal held that at Tribunal must consider a claimant’s ability to get in or out of a bath or shower means that if the person needs assistance with either one or the other then the test is satisfied. Moreover, the decision set out that the test must be based on whether a person can get in or out of a bath or shower which is unadapted even where the claimant has access to an adapted bath or shower. The Chief Commissioner adopted and accepted the reasoning and analysis in the SP decision outlining it properly reflects the law in Northern Ireland. The Tribunal in this case based its decision in the activity of washing and bathing on the access the claimant had to an adapted shower with a seat and hard rail. The Tribunal also focussed on the shower only and not the ability to use a bath. The failure to examine the ability to use both a bath and a shower which was unadapted amounted to an error of law. The case was sent back to be considered by a freshly constituted appeal Tribunal.
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