Social Security Case Law - Spring 2025

Headnote

The Tribunal erred in failing to consider and provide adequate reasoning for its decisions under managing therapy, communicating verbally and planning & following a journey. Also notes that the time spent cleaning and sterilising therapy equipment should be included under Activity 3.

Background

The appellant had a previous award of the lowest rate care component of Disability Living Allowance (DLA). The claimant has primary ciliary dyskinesia (PCD), hearing loss and low mood. People with PCD are more susceptible to chest and ear infections and the claimant’s condition not only included medication and an inhaler, but chest therapy as well.

In October 2021, the claimant’s  appointee made a claim for PIP upon them reaching sixteen years of age. However, the Department only awarded the claimant 6 points for the Daily Living activities under Activity 3 ‘Managing therapy or monitoring a health condition’. No points were awarded for either mobility activity.

The decision remained unchanged after mandatory reconsideration and the appeal as later dismissed when the Frist-tier Tribunal (FTT) agreed with the decision. The claimant then appealed to the Upper Tribunal with the support of the Secretary of State.

Legal Issue

The Upper Tribunal was asked to consider whether the FTT made a material error under the following circumstances:

• Incorrectly considered the claimant’s cleaning regime when totalling the total time spent on therapy, i.e. encompassing the cleaning and sterilizing of the therapeutic equipment.
• The FTT failed to provide adequate reasons for its findings in relation to a number of activities, including; Activity 7 ‘Communicating Verbally’, Activity 10 ‘Making budgeting Decisions’ and Mobility Activity 1 ‘Planning & Following Journeys’.
• The Tribunal had mistreated the claimant’s delayed development of independent skills being the result of Covid, rather than being a difficulty attributable to their physical or mental condition.

Decision

The Upper Tribunal allowed the appeal and remitted the case to a freshly constituted First-tier Tribunal.

The Judge held that while the statement of reasons showed doubt as to whether a cleaning regime should be included as part of therapy, the FTT did account time for cleaning in its calculations and therefore it did not amount to a material error. However, Judge Stout did clarify the inclusion of cleaning as a part of therapy in paragraph 15:

‘It seems to me that the definition of ‘managing therapy’ in the Regulations is capable of encompassing the activity of cleaning and sterilising the therapeutic equipment. That is part of what is required in order to manage the therapy, since (to quote the definition in the Regulations) “a failure to do so is likely to result in deterioration in C’s health.”

The Judge acknowledged that the FTT did not consider the impact of the claimant’s hearing loss on their ability to speak under Activity 7 ‘Communicating Verbally’ and that it had failed to provide adequate reasons for its conclusions.

The remaining three grounds of appeal echo a similar sentiment, holding that the Tribunal made a material error regarding the extensive nature the disability has on the appellants’ life. Arguing that the Tribunal failed to provide proper reasoning or provide proper consideration for the evidence that was provided, in particular when assessing the claimant’s ability to express and understand ‘complex verbal information’. The Judge also highlighted that the Tribunal again failed to consider and provide adequate reasons for the claimant’s inability to make ‘complex budgeting decisions under Activity 10.

The Judge also commented that the FTT failed to adequately explain its reasoning in relation to the claimant’s delayed development of independence skills as a result of Covid rather than their health conditions.

The FTT did not identify any evidence, or explain why it concluded that the appellant was able to follow the route of an unfamiliar journey unaided. While the evidence showed that the claimant was able to make their to the local shop’, it wrongly focused on their cognitive ability to follow the route of a journey – given that at the time of the decision he did not actually go out much by himself. It was held that this was a material error that could have potentially awarded the claimant 10 points under the Mobility Component of PIP.

The Commissioner decided in favour of the appellant and remitted the case to a newly constituted First-tier Tribunal for Hearing.

Relevant Legislation

• Part 1 of Schedule 1 of The Social Security (Personal Independence Payment) Regulations 2013

Relevant Case Law

• MF v SSWO CPIP 1679/2015
• HH v SSWP (PIP) [2015] UKUT 558 (AAC)
• MH v SSWP [2016] UKUT 0531 (AAC), [2018] AARC 12