MF v Secretary of State for Work and Pensions (Personal independence payment – daily living activities) [2015] UKUT 554 (AAC)

UKUT-AAC
MF v Secretary of State for Work and Pensions (Personal independence payment – daily living activities)
[2015] UKUT 554 (AAC) · 2015-10-15
The appeal is allowed.For the reasons below, the decision of the First-tier tribunal is set aside.I refer the appeal to a new tribunal to decide the appeal again in accordance with the directions set out at the end of this decision.

REASONS FOR DECISION

1 The claimant and appellant, MF, is appealing against a decision of the First-tier Tribunal following a hearing on 13 02 2015 under reference SC 002 14 00499. The tribunal confirmed a decision for the Secretary of State made on 21 07 2014. This was to refuse an award of personal independence payment (PIP) to the appellant in respect of the claim, made on 14 03 2014.

The issues in this appeal

2 Permission to appeal was granted by a First-tier Tribunal judge. The judge granted permission for the Upper Tribunal to review the interpretation and application of descriptor 5 (toilet needs) by the tribunal to the appellant’s case. The judge refused other grounds of appeal.3 I agree that MF’s full grounds of appeal cannot be considered. In particular, it must be emphasised that the role of the Upper Tribunal is to consider if decisions of the First-tier Tribunal are correct or erroneous in law. The additional evidence produced by MF with the application to appeal to the Upper Tribunal cannot be considered at this stage as it was not seen by the tribunal. And I must endorse the views of the First-tier Tribunal that income (or lack of it) is not relevant to entitlement to PIP.4 This decision considers only the question of law raised by the First-tier Tribunal judge and two issues that emerged in consideration of the appeal: the interpretation of descriptor 3 – managing therapy – and the potential interaction if any between descriptor 3 and descriptor 5.5 I must add a further comment. MF has understandably emphasised throughout the appeal just how embarrassing and stressful it is to talk about her problems. That is why, again understandably, MF felt unable to attend a tribunal hearing. With that in mind I have sought to exclude anything in this decision that would help identify MF and is not directly relevant to the issues I am considering. I am assisted in this by the thorough statement of reasons given by the tribunal below and the full discussion of the facts contained in that decision. Both parties have had copies of those reasons and have commented on them. In the unusual circumstances of this case this decision is to be taken as accepting that statement of reasons as the basis for this decision save where I indicate otherwise. For that reason I have not included any full review of the facts and I do not repeat the content of that statement more than is necessary.

The appellant’s claim

6 MF has suffered since early childhood from celiac disease. For several years MF has also suffered on a continuing basis from the skin disease known as lichen planus and in particular from the form of that disease often referred to as VVG syndrome: vulval-vaginal-gingival syndrome. It is accepted that MF also suffers from depression.7 MF applied for, and was refused, PIP for the effects of these problems in limiting MF both physically and in terms of mental health. It was accepted for the Secretary of State and by the tribunal that MF had limitations with regard to two PIP descriptors, managing therapy and engaging with other people face to face. Together those led to the award of 4 points. The tribunal agreed with the Secretary of State that no mobility descriptors were met. I can see no arguable error of law with regard to the mobility descriptors and discuss them no further. But I must examine the handling of descriptor 5 (managing toilet needs), the meaning of descriptor 3 (managing therapy) and any interaction between them. In particular, the tribunal agreed with the Secretary of State that MF’s condition did not give rise to any award of points in respect of managing toilet needs or incontinence unaided. Was it right in law to do so?

The legislation

8 The personal independence payment was created by section 77 of the Welfare Reform Act 2012. It consists of the daily living component (see section 78) and the mobility component. (section 79). Section 80 provides:
“(1) For the purposes of this Part, the following questions are to be determined in accordance with regulations –
(a) whether a person’s ability to carry out daily living activities is limited by the person’s physical or mental condition;(b) whether a person’s ability to carry out daily living activities is severely limited by the person’s physical or mental condition…”That section authorises regulations including the Social Security (Personal Independence Payments) Regulations 2013 (SI 2013 No 377) (the PIP Regulations). None of the further provisions in the Act (such as those setting a required period condition) are directly in issue in this appeal.9 Regulation 3(1) of the PIP Regulations provides that Part 2 of Schedule 1 to those regulations defines the relevant daily living activities. Regulation 4 sets out the approach to be taken in assessing the application of those activities, and provides in part:

“(2) C’s ability to carry out an activity is to be assessed –

(a) on the basis of C’s ability whilst wearing or using any aid or appliance which

C normally wears or uses; or

(b) as if C were wearing or using any aid or appliance which C could reasonably be expected to wear or use.(2A) where C’s ability to carry out an activity is assessed, C is to be assessed as satisfying a descriptor only if C can do so –

(a) safely (b) repeatedly; and

` (c) within a reasonable time period.

…

(4) In this regulation –

(a) “safely” means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity;(b) “repeatedly” means as often as the activity being assessed is reasonably required to e completed; and(c) “reasonable time period” means no more than twice as long as the maximum period that a person without a physical or mental condition which limits the person’s ability to carry out the activity in question would normally take to complete that activity.”

The relevant descriptors

10 Descriptor 5 in Part 2 of Schedule 1 to the PIP Regulations is headed “managing toilet needs or incontinence.” It applies to both bowel and bladder. Excluding references to bowel needs and to incontinence as irrelevant here, the descriptor provides:

“a. Can manage toilet needs … unaided 0

b. Needs to use an aid or appliance to be able to

manage toilet needs. 2

c. Needs supervision or prompting to be able to

manage toilet needs 2

d. Needs assistance to be able to manage toilet

needs. 4

11 On the facts of this case there may be argued to be an overlap between that descriptor and descriptor 3, managing therapy or monitoring a health condition. It has been decided that descriptor 3.b below is met on the facts of the case. MF challenges that, arguing for descriptor 3.d.12 The relevant provisions in descriptor 3 are:

“a. Either –

(i) does not receive medication or therapy or need to monitor a health condition; or

(ii) can manage medication or therapy or

monitor a health condition unaided 0

b. Needs either –

(i) to use an aid or appliance to be able to

manage medication; or

(ii) supervision, prompting or assistance

to be able to manage medication or monitor

a health condition 1

c. Needs supervision, prompting or assistance

to be able to manage therapy that takes no more than

3.5 hours a week. 2

d. Needs supervision, prompting or assistance to

be able to manage therapy that takes more than

3.5 but not more than 7 hours a week. 4

e. Needs supervision, prompting or assistance to

be able to manage therapy that takes more than

7 hours a week but not more than 14 hours a week 613 Part 1 of the Schedule sets out definitions of terms used in the descriptors. The following definitions are relevant to the descriptors set out above:

“aided” means with –

(a) the use of an aid or appliance; or(b) supervision, prompting or assistance;
“assistance” means physical intervention by another person and does not include speech;
“manage medication or therapy” means take medication or undertake therapy, where a failure to do so is likely to result in a deterioration in C’s health;
“prompting” means reminding, encouraging or explaining by another person;
“therapy” means therapy to be undertaken at home which is prescribed or recommended by a -
(a) registered – (i) doctor;

(ii) nurse; or

(iii) pharmacist; or

(b) health professional registered by the Health Professions Council;

“toilet needs” means –

(a) getting on and off an unadapted toilet;(b) evacuating the bowel and bladder; and(c) cleaning oneself afterwards;

“unaided means without –

(a) the use of an aid or appliance; or(b) supervision, prompting or assistance.”

Application to this appeal

14 The effects of the VVG syndrome on MF have in the past been so severe that MF needed emergency surgery to open access to the bladder. On that occasion the urethra had been so completely closed by the syndrome that even a team of professionals in a hospital accident and emergency unit were unable to insert a catheter or dilator. The files contain the clearest expert evidence that the threat of further closure and resulting acute urinary retention was a continuing one occasioning further intervention by surgery shortly before MF made the current claim. This is confirmed by medical records in the papers that MF was treated by an anterior vulvar adhesiolysis in hospital to assist evacuation at that time.15 As a result, MF had no choice but to use medically prescribed dilators in a daily regime described by MF as involving over an hour a day at night on every day of the year including taking hygiene precautions and using local anaesthetics. (I must add for completeness that the length of time identified by MF varies from approaching an hour to over an hour each day). In addition, creams had to be applied during the day. The hygiene precautions are necessary because MF also takes immuno-suppressant drugs.

The tribunal’s decision

16 The tribunal dealt with this evidence separately in respect of descriptor 3 and descriptor 5.17 With regard to descriptor 3, managing therapy, the tribunal decided (at paragraph 5):
“…the appellant seems to be asserting that she requires supervision and assistance in respect of the administration of her daily vaginal care routine and specifically the use of the dilator. This is on the basis that it is an unpleasant and invasive treatment and that it causes her distress to undertake it. The tribunal does not dispute that the treatment is invasive and that it may cause the appellant distress to have to undertake it. However, there is no indication fro the available evidence that the appellant does or should reasonably require supervision, prompting or assistance in order to undertaken that treatment regime on a daily basis…
The tribunal then recited some of the definitions set out above and continued:
“none of the available evidence indicates a need for any … intervention or support with regard to the daily treatment regime the appellant undergoes in order to maintain patency of her vagina. On the contrary the evidence is that she is proactive and independent in respect of this treatment regime. Although the appellant mentions a number of times in her appeal paperwork that were she to fail to maintain this therapeutic regime the patency and viability of her vagina and urethra would deteriorate to the point where she would require far more specialist input to maintain her health condition, this is not a factor that can be taken into account by the tribunal other than perhaps to consider whether the realisation of this risk is more likely than not to manifest. The tribunal find that this is not likely to happen and that on the contrary all the available evidence indicates that the appellant has over a long period self-managed her daily treatment regime by the use of dilators and various creams safely, to an acceptable standard, repeatedly and in a timely fashion.”
18 This was in response to MF’s firm contention that the relevant descriptor wasDescriptor 3.d, a need for supervision, prompting or assistance to manage therapy that takes more than 3.5 but no more than 7 hours a week. Her explanation of this was simple: she spent up to an hour a day – sometimes more – every day undertaking the therapy. This therapy, although undertaken by her personally, is because of the prompting and under the supervision of her medical advisers. On her reading, it is the therapy to which the time periods apply, not the assistance. The tribunal, apparently without noting that reading, took the time period to apply to the supervision or assistance. In the submission for the Secretary of State on the appeal, the view of the tribunal was supported, but again without the ambiguity in the provision being noted. That submission did not draw attention to any relevant decisions or other sources of guidance. However, I have taken into account below the only decisions of the Upper Tribunal to date that have been placed on the internet with regard to issues directly relevant to these descriptors.

The meaning of descriptor 3.d

19 The text of the relevant part of the descriptor is:
“Needs supervision, prompting or assistance to be able to manage therapy that takes more than 3.5 but no more than 7 hours a week.”
20 To what does the time limit apply? The descriptor is, viewed literally, inherently ambiguous on this but with what one might term a grammatical starting point that a natural reading suggests that the time limits apply to the second element of the test, the therapy, rather than the first element of the test. Put another way, if the therapy is such that the individual needs supervision, prompting or assistance to manage it, then on that reading what matters is how long it takes, not who does it. The other following elements of descriptor 3 do not help with this as they use identical wording.21 The view of the Secretary of State on the meaning of the provision is clear fromthe relevant text in the PIP Assessment Guide: A DWP guidance document for providers carrying out assessment for PIP, available on the Government Website at www.GOV.UK .The relevant passages of guidance are at pages 97 – 99. In particular, at pages 97-98 the following advice is given:
“ Descriptors C – F: needs supervision, prompting or assistance to be able to manage therapy apply to the duration of the supervision, prompting or assistance and not the duration of the therapy. For example if compression bandaging is worn 24 hours a day for venous insufficiency, the time spent by another person applying the bandaging is counted, not the time the bandages are worn.”
22 It is clear from this that the intention of the Secretary of State is that it is the attention not the therapy that is subject to the time periods. But it must be emphasised that this guidance reflects theview of the Secretary of State and advisers. It is not the law. I have cited it because it will have beenthe guidance on which the health profession made the key decisions in this case and because the emphasised word “ not” suggests that at least someone advising the Secretary of State was aware of the ambiguity in the language.23 Does the legislative context of this provision provide a ready solution to the ambiguity? I have set out above the directly relevant statutory and regulatory provisions. The central test in section 78(1)(a) is whether a person’s ability to carry out daily living activities is limited by that person’s physical or mental condition. On the facts here, that does not directly help. MF has to carry out the full therapy every day, and is limited by that need, whether or not there is actual supervision or assistance at that time. The limit to MF’s ability is the time taken in the therapy not the time when assistance is needed.24 The answer to the ambiguity falls in my view to be taken from descriptor 3 read as a whole and with the definition of “therapy”. This is supported in my view by the general approach of the specific descriptors about daily living activities. For the purposes of this descriptor, if an individual “can manage medication or therapy or monitor a health condition unaided” then there is no relevant limit to daily living activities. The therapy is, by definition, therapy undertaken at home on the prescription or recommendation of a medical professional. So it is implicit in any relevant level of assessment of this descriptor that there has been expert medical or health professional intervention but that the therapy is the result of that intervention, not the intervention itself. The test that an aid or appliance is needed to manage the medication is a separate test (3.b) that plainly includes use of the aid or appliance by the claimant without supervision, prompting or assistance. This is perhaps necessary because “aided” and “unaided” are also somewhat ambiguous in conflating within their defined meanings the assistance of another person and the assistance of an aid or appliance.25 More generally, needs for assistance are a recurring element of the tests in the descriptors. Whether those needs arise because of the time involved if a claimant attempts them is, however, dealt with in other descriptors by a general rule in regulation 4(2A) of the PIP Regulations read with regulation 4(4):
“(2A) C’s ability to carry out an activity is assessed, C is to be assessed as satisfying a descriptor only if C can do so –
(a) safely;(b) to an acceptable standard;(c) repeatedly; and(d) within a reasonable time period.

(4) In this regulation …

(c) “reasonable time period” means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’sability to carry out the activity in question would normally take to complete that activity.”The “reasonable time” test plainly only applies separately from the specific time test in descriptor 3. It is however a general element in all other assessments, and emphasises that to the extent indicated individuals are expected to be able to help themselves deal with their disabilities before there is a recognised need for other help. For further discussion of the provisions of regulation 4, which are also ambiguous, see PE v Secretary of State for Work and Pensions [2015] UKUT 0309 (AAC).26 Taking those points into account, my conclusion, not without hesitation, is that “needs supervision, prompting or assistance to be able to manage therapy that takes more than 3.5 hours a week but not more than 7 hours week” means “needs supervision, prompting or assistance that takes more than 3.5 hours a week but not more than 7 hours a week to be able to manage therapy.” It is a pity the words used did not say that unambiguously. But on that reading, that element of MF’s appeal must fail.

The overlap between descriptor 3 and descriptor 5

27 The other issue that arises with regard to descriptor 3, as pointed out by the Secretary of State, is whether the issue of what might for this purpose be called potential toilet needs is properly decided under descriptor 3 and not descriptor 5. That is the approach adopted explicitly by the Secretary of State in the submission on the appeal and implicitly by the tribunal. Its view is that there must be a nexus (its term) between the aid used by the appellant and actual evacuation of the bladder for descriptor 5 to apply. The tribunal found as fact that there was no such direct connection and therefore did not accept that MF had toilet needs.28 The first point in dealing with this issue is that there is no rule in the PIP legislation that states that because the facts of a particular individual’s problems fall to be assessed as creating limits within one descriptor they cannot also be assessed as creating limits within another descriptor. And it does not follow from the structure of Schedule 1 that because a set of facts gives rise to a recognised limit for, say, the need of an aid or appliance to manage medication then that excludes any consideration of the use of that aid or appliance for any other descriptor. To take a broader example, the fact that someone has a particular physical limitation for which assistance is needed for one described activity does not prevent the same limitation being relevant to any other descriptor. The contrary is clearly the case. For example, where the problem is limited ability to use upper limbs. that will be potentially relevant to several descriptors. That is an approach accepted by Judge Hemingway in PE v Secretary of State for Work and Pensions [2015] UKUT 0309 (AAC) about an argued overlap between two other descriptors. In that case Judge Hemingway found that the matter of overlap was not decided by any argument about “double counting” but because the specific descriptors in issue did not permit it (paragraph [30]). So it does not follow that because MF has a need that can be assessed within descriptor 3 it falls to be so assessed but should not, if relevant, also be assessed for descriptor 5. Both should be considered on all the evidence. I therefore turn to that descriptor.

Descriptor 5 – toilet needs

29 The argument by MF is that MF “needs to use an aid or appliance to be able to manage toilet needs” (descriptor 5.b). This argument is based on MF’s view that the therapy is needed to ensure normal toilet use, and that as this involves aids and appliances the descriptor is satisfied. Unless the therapy is undertaken on a continuing basis then the consequence will be, as it has been in the past, that at some point evacuation of the bladder will become impossible without surgical intervention. So the therapy is directly necessary to prevent an inability to evacuate the bladder occurring and so is directly linked to toilet needs.30 The tribunal set out its view of the relevant facts at length at paragraph 6. I hesitate to accept the tribunal’s description of this as readily as I have the tribunal’s handling of descriptor 3. This is because it does not appear to have noted the directly relevant surgical intervention undertaken for MF just days before this claim was made. I am particularly concerned that in reaching its view the tribunal does not appear to taken into account the medical evidence of MF’s situation at the date of claim. That date of claim was 14 03 2014. A hospital discharge letter dated 12 03 2014 states “catheter in situ”. That plainly relates directly to MF’s immediate toilet needs and appears to apply specifically to the date of claim. It may be that the catheter was removed promptly but I can see no evidence about this in the papers. The health professional was aware of the discharge report when preparing the consultation report in June 2014 but does not comment. The key date, the date of decision, was 21 07 2014. What was the situation then? That appears to have been overlooked by the tribunal in its view that further intervention ”is not the situation and it is not likely to be the situation given the good and stable care routine that the appellant applies” (paragraph 6). Was that probable at the date of claim, when the appellant was still recovering from recent intervention? Was it probable at the date of decision? The evidence on file (which is not complete) may suggest that the further surgical intervention was needed even though MF carried out the therapy as the tribunal found. The tribunal has not dealt with that point.31 I can also see no significant evidence about the process, embarrassing as it must be to have it discussed, when MF evacuates the bladder. Does that take much longer than normal if all directly relevant procedures such as hygiene are taken into account – see regulation 4 above? Is there any incontinence a other times? Are pads needed? Is any aid or appliance needed to help?32 Aside from the issues about evidence, the tribunal’s view appears to be rested on the absence of a nexus or direct connection between “toilet needs” as defined in Schedule 1 and the therapy. Again, MF and the tribunal appear to be reading this descriptor in different ways. The difference is the immediacy of the link between the use by MF of aids to help keep the urethra open in the longer term and more immediate toilet needs.33 In my view that is essentially a question of fact. That should take into account the daily experience of MF voiding the bladder. Does the therapy itself affect toilet needs in the shorter term as well as the longer term? On that there is no significant evidence. That is to be weighed along with evidence about short term needs to avoid longer term problems. In doing so, the matter must be looked at within the terms of this descriptor. Any “overlap” with any other descriptor on the facts is irrelevant.34 My conclusion is that this issue should be looked at again by a tribunal and that this should be done after MF has been invited to give any evidence she wishes to give about the points just raised.

Conclusion

35 The appeal is allowed by reference to the errors of law relating to the descriptor about toilet needs. Given the points I have raised about evidence, that is not something I can decide on the papers without further steps. It is in my view expedient that I send it to a new tribunal, as that will allow medical and disability expertise to be directed to any new submissions or evidence.36 It will be fore the new tribunal to consider the whole claim and the decision of the Secretary of State afresh in the light of the guidance in this decision. However, I have already indicated that I see no error in the previous approach of the tribunal to mobility issues. If MF wishes to renew that aspect of the claim, she should consider whether she has further evidence to support it. More generally, this will give MF the opportunity to include any new evidence on daily living activities as affected by her medical conditions. This should include the evidence submitted with the application for permission to appeal to the Upper Tribunal, on which I emphasise I have taken no views at all. The tribunal may also be assisted by the guidance given by Judge Jacobs about deciding the application of descriptors in PE v Secretary of State for Work and Pensions [2015] UKUT 0309 (AAC).I give directions below about whether the tribunal should hold an oral hearing, but it will be for a First-tier Tribunal judge to deal with any other procedural issues that arise.37 I have indicated above that it is clear why MF did not wish to attend a hearing personally. That does not prevent her attending by or with a representative or a member of the family or friend to help. She has also had no expert advice, for example from a Citizens' Advice bureau, welfare rights office, solicitor or other welfare law expert with her claim and may wish to consider that also. However, I am unusually not directing an oral hearing of the rehearing by the tribunal save if, in accordance with the directions below, MF or a representative asks for one.38 MF should also be aware that to meet the tests for PIP it must be shown that a particular need probably arises at least for a majority of the time in a period starting three months before the date of the decision being challenged and extending for a year after that. I have indicated that there is clear medical evidence of the situation at the start of that period. What was likely at the time of decision to have been the continuing level of the problems and needs experienced by MF? The rehearing of this appeal gives MF a chance to produce further evidence about this.

Directions to the First-tier Tribunal

A Unless the appellant, or a representative, asks the First-tier Tribunal for an oral hearing within one month of the receipt of this decision or a First-tier Tribunal judge directs otherwise then the new tribunal may hear the case without holding an oral hearing.B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.C The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.D As indicated in the decision, if the appellant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.These directions are subject to any further direction by a First-tier Tribunal judge.

David Williams

Upper Tribunal Judge

15 10 2015

[Signed on the original on the date stated]

Cited in 6 later judgments