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The claimant had essential hypertension, non-diabetic hyperglycaemia, bronchiectasis, benign prostatic hyperplasia and chronic kidney disease stage 3. He was awarded nil points for both components of PIP. The First-tier Tribunal awarded him the standard rate of the mobility component but refused the daily living component, having decided to award him a combined total of 4 points in the activities for washing and bathing and for dressing and undressing. Included in the tribunal’s reasoning was that, despite his problems with breathlessness, the claimant was able to wash and bathe using an aid in the form of a grab rail and so scored just 2 points under descriptor 4b.

Judge Brewer allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in its approach to the question of the claimant’s need to use an ‘aid’ to carry out certain activities. Regarding getting in and out of the bath, the tribunal concluded he could carry out this activity with the use of a grab rail as an aid, but erred in not considering this ‘through the lens’ of regulation 4(2A) and assess whether the aid was sufficient to ensure he could wash and bathe to an acceptable standard and/or whether the aid was able to overcome his functional impairment (paragraph 58). Other errors were not properly considering the impact of the claimant’s breathlessness on his walking ability, rejecting evidence of his problems with swallowing without considering his reports of constant coughing in the light of his historic tuberculosis and in failing to consider his fatigue related to his medical conditions when assessing his difficulties with budgeting.

The judge rejected the submission of the Secretary of State that a feature such as handles already fitted on a bath could not constitute an ‘aid’, in so far as they could assist any person, irrespective of their functional impairment. The decision of Judge Jacobs in CW v SSWP (PIP) [2016] UKUT 197 (AAC) was cited in support. Judge Brewer did not accept the Secretary of State’s argument, to the effect that if a device assists everyone then it could not be an aid, as a ‘blanket proposition’ (paragraph 40). Firstly, CW:

‘does not establish as a blanket principle that if a device is commonly used by non-disabled and disabled persons alike it cannot constitute an aid for the purposes of the regulations. That is an impermissible overstatement of what CW decided' (paragraph 41).

It was axiomatic that an everyday object was likely to be used by the functionally impaired and non-functionally impaired alike. What was held in CW was that someone who sat on a bed rather than stood to get dressed was unable to demonstrate a limitation with the functions that are required for that activity. But that (said Judge Brewer) was not authority that ‘normality of behaviour’ should be the cornerstone of establishing whether something is an aid or not. The definition of ‘aid’ under regulation 2 of the Social Security (Personal Independence Payment) Regulations 2013, SI No.377, is that it is ‘any device which improves, provides or replaces [the claimant’s] impaired mental or physical function...’. So, the limitation in the definition ‘is directed not at what the device is, but what it does for the PIP claimant, i.e. does it improve, replace or provide for the impaired functioning to undertake the descriptor task’ (paragraph 47). Everyday devices can operate as an aid: 

‘It may well be that where a PIP claimant relies on their use of a common everyday device as evidence of functional impairment it may have limited or no value in establishing that function impairment (see the wooden spoon analogy in CW). However, that remains a question of fact for the tribunal exercising its inquisitorial function and assessing all the evidence before it’ (paragraph 51). 

Where a claimant had evidenced a physical condition and established that but for the bath handles he could not get in and out of the bath, the handles were an aid, as they were ‘a device which operates to overcome the functional impairment in question’ (paragraph 52).

Comment from CPAG

This decision is an important clarification of the way the decision in CW should be interpreted. It is a clear rebuttal of the Secretary of State’s position that everyday items cannot constitute an aid. See our article: PIP and aids for more.

Summary

The claimant was a member of a couple. On 22 August 2019, she went abroad to attend her father-in-law’s funeral. At that time the absence was expected to last for 40 days – ie, less than two months. Her return was delayed until July 2020 (firstly by her brother-in-law confiscating her passport, then by the Covid-19 pandemic). On 24 September 2019, it was decided that she and her husband were no longer entitled to UC – ie, due to absence abroad. The First-tier Tribunal allowed the claimant’s appeal regarding the termination date, holding that (1) the DWP had wrongly relied on regulation 47 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, SI No.381 (‘Decisions and Appeals Regulations’) to terminate the award, as entitlement had not – as required for a regulation 47 termination – first been suspended under regulation 45; and (2) given that the claimant had left Great Britain on 22 August 2019 in connection with the death of a close relative, it was reasonable to allow two months’ temporary absence so that entitlement to UC for absence abroad was only lost from 21 October 2019. The claimant appealed as the tribunal refused the couple’s claim for backdating a new claim made on 8 July 2020.

Judge Jacobs held that the tribunal had not erred in law. The tribunal was correct to hold that regulation 47 of the Decisions and Appeals Regulations did not apply, because there had not been a previous suspension of entitlement. Regarding temporary absence, the relevant rule was at regulation 11 of the Universal Credit Regulations 2013, SI No.376. That provides at subparagraph (1) for entitlement to continue during a temporary absence of up to one month, and at subparagraph (2) for that period to be up to two months in certain circumstances, including in connection with the death of a close relative, where expectation of return to Great Britain within one month is considered unreasonable. The tribunal was correct to decide that two months was the appropriate disregard of temporary absence, given that the claimant was absent in connection with the death of her husband’s father and, given the length of the funeral process, was entitled to allow the maximum extension. Regarding the application of regulation 11, the tribunal was correct to hold (as submitted to the Upper Tribunal by the Secretary of State) that the permitted temporary absence continues until the earlier of (a) the day the absence was expected to exceed one month, or (b) the absence does in fact exceed one month. Entitlement was not to be removed from the moment the absence began – ie, from the moment the claimants left Great Britain. That was consistent with the approach taken by Judge Church in AM v SSWP [2024] UKUT 137 (AAC) (which held that, on supersession, entitlement was only to be removed from the start of the assessment period in which the absence was no longer to be disregarded).

The tribunal was also correct to refuse the claim for backdating. The claimant returned to Great Britain on 7 July 2020 and made a new claim on 8 July. But she (and her husband) could not be entitled on an earlier date than 7 July as she did not satisfy the condition of entitlement of being in Great Britain on an earlier date. Regulation 26 of the Universal Credit Regulations, which provides the grounds on which backdating might be possible, ‘is not a means of bypassing the conditions of entitlement’ (paragraph 27). Backdating of one day to 7 July was not possible as the reason the claim was not made on that day was because the claimant was travelling back to the UK (not because of disability or any other ground on which backdating is possible).

Comment from CPAG

This decision is further authority (with AM v SSWP) that termination for absence abroad only applies from the point in time that disregarded absence under the temporary absence rule no longer applies (ie, where that has applied up until that point), not retrospectively from the point of departure from Great Britain. It is also clear that this is the position of Secretary of State.

Decision in brief

Claimant’s appeal was struck out by the First-tier Tribunal for lack of jurisdiction as it did not consider there had been a refusal to carry out an MR – that was an error – the MR requirement is that that the Secretary of State has ‘considered whether to revise’ following an application – the Secretary of State clearly had ‘considered’ that and it was beyond doubt that the Secretary of State had refused the application for revision – tribunal should have used its powers to waive the absence of a mandatory reconsideration notice

Decision in brief

Tribunal erred in deciding claimant was not self-employed because his earnings were taxed under the PAYE system – that was not the correct test – the Social Security Benefit (Computation of Earnings) Regulations 1996 provide that an ‘employed earner’ is someone in gainful employment ‘under a contract of service’, and that ‘self-employed earner’ is a residual category (ie, someone who is in gainful employment ‘otherwise than as an employed earner’) – it was not open to the tribunal to decide that the claimant was neither an employed earner nor self-employed but instead a ‘worker’ – it was the contractual relationship that was key in deciding whether claimant was working under a ‘contract of service’ (and so an employee) or not

Decision in brief

Claimant unable to share a bedroom with his partner due to disability, but unable to qualify for a second bedroom to be allowed as he was not in receipt of the required disability benefit (in his case, the middle or high rate of the disability living allowance care component) as he had been refused it and not sought to reclaim it – no breach of the claimant’s human rights under the European Convention on Human Rights – no discrimination for disability as the difference between the claimant and someone getting the relevant disability benefit was not disability based – if justification for the requirement to be getting a relevant disability benefit was required, then the requirement had objective and reasonable justification (and so was not unlawful)

Decision in brief

Tribunal erred in holding that claimant could engage with others on basis of interactions with neighbours – tribunal adopted unduly narrow approach in failing to address whether the neighbours were already known to the claimant and how she would engage with people unknown to her – per HA v SSWP (PIP) [2018] UKUT 56 (AAC), tribunal must undertake a holistic assessment of ability to engage with others, considering a range of interactions and not limiting itself to those involving familiar persons

Decision in brief

Senior President of Tribunals has issued a Practice Statement requiring judges to make a record of proceedings and for tribunal to preserve it for a specified period – record of proceedings could, depending on facts, consist of multiple documents, such as an audio recording, judge’s notes and written reasons – but in this case, even all of that taken together did not adequately record the evidence taken and submissions made

Decision in brief

Tribunal therefore erred in taking into account the claimant’s circumstances subsequent to the date of the decision (and which on the facts were not capable of being referred back to the date of the decision) and limiting the period of the award on the basis of those circumstances