Social security case law

FMcA v. Department for Communities (PIP) [2021] NI Com 17 (C24/20-21)

Background

The claimant claimed PIP on the basis of needs arising from a tracheostomy due to laryngeal cancer. His claim was refused and he appealed. A tribunal disallowed his appeal and he appealed to the Social Security Commissioner. Law Centre NI represented him before the Commissioner.

Legal issue

The claimant gave evidence to the tribunal that although he could wash and bathe, he had to be careful to prevent water entering the tubing in his throat. He said that if he had to wash his hair, he would need assistance from another person to avoid water ingress directly to his lungs.

The tribunal did not accept the claimant’s evidence. It declined to award points under Activity 4: Washing and bathing, deciding that the claimant could wash and bathe generally most of the time. In its statement of reasons, the tribunal stated:

‘The medical member of the panel in particular was of the view that a simple covering could be applied over the opening so as to prevent the entrance of water into the area and into his lungs. This did not necessarily have to prevent the flow of air into his lungs in the circumstances.’

While the tribunal reasoned that the claimant did not need assistance because he could use an aid, it failed to award points for using an aid or to identify the appropriate aid.

Before the Commissioner, Law Centre NI argued that the tribunal’s reasons for deciding that the claimant does not need an aid to wash or bathe were inadequate. Law Centre NI referred to Regulation 2(1) Personal Independence Regulations (NI) 2016, which defines an aid or appliance as:

‘2.(1) in these Regulations
‘aid or appliance’ –
(a) means any device which improves, provides or replaces [the claimant’s] impaired physical or mental function.’

Law Centre NI also referred to the decision of Upper Tribunal Judge Gray in JM v. SSWP (PIP) [2017] UKUT 419 (AAC) in which he stated:

‘4. The grounds of appeal, which were fully and helpfully drafted with references to case law, boiled down to the argument that the statement of reasons was an inadequate explanation as to the chosen descriptor under activity 1, preparing food. The point was made, and I agree with it, that given that the tribunal perceived a need for an aid or appliance, the statement of reasons should have indicated what sort of aid or appliance it had in mind…’

The Department agreed that the tribunal had erred in law.

Decision

As both parties agreed that the tribunal erred in law, the Commissioner allowed the appeal and referred the matter to a new tribunal. The Commissioner noted that his decision turns on its own particular facts.