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Social Security Case Law

Summaries of recent cases on social security law and practice.

PIP Activity 4 – Washing and Bathing

Leaving the door unlocked coupled with the requirement of someone else being present amounts to the need for supervision.

PMcK-v-Department for Communities (PIP) [2023] NICom 24



The claimant (a previous recipient of Disability Living Allowance as a child) made a claim for Personal Independence Payment in October 2020 on the basis of needs arising from diabetes and anxiety. After examining the PIP 2 form, healthcare professional report and supplementary advice note the Department concluded that the claimant did not satisfy the conditions of entitlement to PIP.

The claimants mother, as his appointee requested reconsideration of the decision and submitted further evidence to support the claim. However, after reconsideration the Department decided not to revise their decision.

The claimant appealed the decision and attended the Tribunal Hearing in August 2022. The Tribunal disallowed the appeal.

The appellant then submitted an appeal to the Social Security Commissioner in February 2023.


Legal Issue

The appeal was submitted on the grounds that the Tribunal erred in law by failing to adequately address the issues of safety in relation to the management of the appellant’s type 1 diabetes, referring the decision of LO’H v DFC [2021] NI Comm 60.

In addition, the appellant submitted the following grounds:

  • Failing to address the correct legal test regarding management of diet;
  • Failing o explain the divergence between the previous award decision of Child DLA and the current decision not to award PIP;
  • Giving weight to lack of diagnosis or medical treatment for anxiety rather than assessing functionality;
  • Failing to address the correct legal test in relation to engaging with others;
  • Failing to apply the correct legal test or give reasons in relation to the activity of planning and following a journey.

The Tribunal had awarded seven points in total under the daily living component, and no points were awarded for the mobility component. The Appellant submitted an appeal to the Commissioner. The Department supported the appeal on the basis of one of the appellant’s grounds.

The primary ground for appeal concerned the daily living activity 4 – washing and bathing and the appellants ability to carry this out this activity ‘safely’ and in ‘a reasonable time period’ as set out in the PIP Regulations (Northern Ireland) 2016.

The appellant submitted that as a result of their condition they are at risk when taking a shower or bath due to the hot water causing their blood sugars to drop dangerously low and increasing the risk of a hypoglycaemic episode, which has happened before. Additionally, the appellant does not recognise the signs that his blood sugars are too low until they are shaking and disorientated. Therefore, they require supervision – needs to leave the door unlocked and have someone in the house when washing and bathing.

The appellant referred to KT and SH v Secretary of State for Work and Pensions (PIP) [2020] UKUT 252 (AAC) where it was decided that the requirement to leave the bathroom door open whilst washing and bathing did not constitute performing the activity to an acceptable standard.



The Commissioner decided that the Tribunal did not address the submissions made on behalf of the appellants – that he required supervision to wash and bathe. Commissioner at para 24:

‘The tribunal was under a duty to address the principal arguments made by the parties and, by not expressly engaging with the argument put forth on behalf of [the appellant] that he needed supervision to be able to wash and bathe, I respectfully submit it has failed in this duty and thus has made a material error of law.’

The Commissioner allowed the appeal and set aside the decision of the previous Tribunal. However, the appeal has been sent to a new Tribunal as the question of whether there is any risk to the appellant when washing and bathing, and if they require supervision, is one of fact that needs to be determined. As the appeal was granted on the above grounds, the Commissioner did not feel the need to address the remaining grounds in the decision.


You can read the Commissioners full decision ‘here’.