Personal Independence Payment (PIP) was introduced in April 2013 to replace disability living allowance (DLA). So disabled people who do not already get DLA have had to apply for PIP to help with the additional costs of having a disability. And existing DLA claimants are now being told that they must make a claim for PIP.
At October 2015 over 1.3 million claims had been made for PIP. So there has been enough time and claims for a small number of PIP appeal decisions to be made by the Upper Tribunal.
Some of the ‘case law’ decisions from Upper Tribunal judges explored here provide guidance on how common issues that arise in PIP claims should be dealt with by DWP decision-makers and First-tier appeal tribunals. For example, they look at the meaning of words used in the ‘descriptors’* in the assessment activities that are used to determine entitlement to PIP.
Mobility: planning and following a journey
In HL v SSWP** the claimant suffered depression and anxiety. Judge Ward considered whether such conditions could amount to ‘cognitive impairment’ when assessing if a claimant is able to follow the route of a familiar and/or unfamiliar journey. He considered two Upper Tribunal decisions on similar issues that contradicted each other. In one decision the judge held that a person who cannot leave the house alone due to anxiety cannot follow the route of a journey without another person. However, in another case a different judge decided that following a route does not include coping with difficulties that arise along the way.
Judge Ward agreed with the latter interpretation and rejected the claimant’s representative’s submission that if the person cannot go out due to psychological difficulties then they ‘cannot’ follow a route. He stated: “… the situation of a person who is limited in the activity of ‘planning and following journeys’ by the fact that they cannot do it without overwhelming psychological distress, either by undertaking any journey at all, or without prompting (descriptors 1e and 1b), is addressed by those descriptors.”
Taking nutrition
In SA v SSWP Judge Mark decided that a claimant with depression needed prompting to be able to take nutrition. He commented: ”Living on soup and coffee, even with the occasional sandwich, cannot be seen as taking nutrition to an acceptable standard, and it is plain on the tribunal’s own findings of fact that the claimant… had to be encouraged to eat.”
Engaging with other people face to face
In AM v SSWP Judge Mark noted that although there is a definition for the words ‘engage socially’ in the PIP regulations these exact words do not appear in the descriptors for ‘engaging with other people..’. He held that the definition of ’engage socially‘ – to interact with others in a contextually and socially appropriate manner; understand body language; and establish relationships – is still relevant in determining whether a claimant can engage with other people to an acceptable standard.
In PR v SSWP Judge Mark held that the definition of ‘social support’, words used in descriptor 9c, does not require that the claimant is actually accompanied by the person who provides that support at the time of engaging with other people. The judge commented: ‘The tribunal needed to ask itself not “were they [eg key worker] there at the time of the engagement?” but “would the claimant have been able to engage with other people without the social support she received?”’. This decision should be helpful, for example, to claimants who are receiving some support from a learning disability or mental health community service, and would otherwise be unable to engage with other people.
Aids and appliances
Most of the daily living activities include a descriptor about the need for the claimant to use an aid or appliance to carry out the activity. Some decisions have clarified the scope of what counts as an ‘aid or appliance’, defined in the PIP regulations as an item which improves, provides or replaces the claimant’s physical or mental function.
In NA v SSWP Judge Mark held that the need to sit down on a bed to dress reliably meant that the claimant satisfied descriptor 6b – ‘needs to use an aid or appliance to be able to dress or undress’. Other examples of what he considers to be within the statutory definition of ‘aids’ include using a bar stool, chair or wheelchair to prepare or cook food; using a garden chair in the shower; and setting an alarm as a reminder to take medication.
In GB v SSWP Judge Wright said that if an occupational therapy report found that an aid was needed that provides strong grounds for accepting that an aid is required; and that any departure by a decision maker from the recommendations of an OT report about the need for aids or appliances will have to be explained.
Some of these decisions may assist people with learning disabilities, either when making or challenging an unfavourable decision about a PIP claim. However, it is early days in the story of PIP so further Upper Tribunal decisions are likely to help advice workers and other professionals in making arguments on behalf of their clients to get the best award of the benefit.
* Descriptors are daily living activities which are scored from 0-10
**Claimant initials v Secretary of State for Work & Pensions
Links
Links to complete social security Upper Tribunal decisions: www.osscsc.gov.uk/Aspx/default.aspx
Caselaw summaries:
http://www.disabilityrightsuk.org/how-we-can-help/benefits-information/law-pages/case-law-summaries
Charlie Callanan is a welfare rights adviser with over 16 years experience in the statutory and voluntary sectors.
