HH v Secretary of State for Work and Pensions (Personal independence payment – daily living activities : Activity 3: managing therapy or monitoring a health condition) [2015] UKUT 558 (AAC)

UKUT-AAC

HH v Secretary of State for Work and Pensions (Personal independence payment – daily living activities : Activity 3: managing therapy or monitoring a health condition)

[2015] UKUT 558 (AAC) · 2015-10-16

The appeal is dismissed.

For the reasons below, the decision of the First-tier tribunal is confirmed.

REASONS FOR DECISION

1 This case concerns the entitlement of a claimant (whom I refer to as H) to a personal independence payment (PIP) where the key issue is kidney dialysis. A decision maker acting for the Secretary of State accepted that H’s claim established grounds for payment to H of the mobility component of the PIP. That is not in dispute. H also claimed the daily living component. This was refused.

Background

2 The evidence for H is that he has had a diagnosis of chronic renal (or kidney) failure for some time. This requires him to be on continuous ambulatory peritoneal dialysis (CAPD). This involves four fluid exchanges a day taking up to 45 minutes a time, with additional time taken for preparation and subsequent necessary steps such as those necessary to ensure an aseptic regime.

3 After claiming, H was seen by an ATOS nurse. The nurse reported that H had no daily living problems save that he needed prompting to be able to engage with other people. Mobility needs were accepted. Based on this a decision maker acting for the Secretary of State awarded H the mobility component at the standard rate but no daily living component.

That decision was confirmed on reconsideration. After further representations by a representative and involvement of a local member of Parliament the mobility component was increased to the enhanced rate. But the refusal to award the disability living component was maintained. Nonetheless, there was some recognition of H’s daily living needs. It was accepted that H needed an aid or appliance to manage his medication and that help was needed washing and bathing. Even taking these with the acceptance of the need for help with social engagement, they together warranted a “score” of only 5 points under the scheme for determining daily living activity needs. That was not enough to ensure that H was entitled to the daily living component.

“ Medication”

4 The report of the nurse raises an issue not explored further in the appeal, as her advice on one point was not accepted on the second reconsideration. The nurse advised that H could manage his medication or therapy unaided. This appears to be because in the view of the nurse H could manage his “treatment” independently “and there is no evidence to advise otherwise” (Consultation Report, page 4).

5 I fail to understand how anyone could conclude that someone can conduct renal dialysis without the use of any aid or appliance, and so fall outside descriptor 3.b, unless the view was taken that renal dialysis does not involve medication. No one has attempted to argue that in this appeal. “Medication” is a term defined in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2003. It is medication taken at home on the prescription or recommendation of health professionals. “Therapy“is similarly defined. “Monitor health” is there defined as involving taking action advised by a health professional. The term used by the nurse – treatment – is in my experience the term commonly used for dialysis, and the tribunal repeated its use several times without seeing any problem. It is not a term used in the legislation about PIP. Without hearing argument, as no point has been taken, I take it to mean a combination of therapy, medication and monitoring. On that view, the second reconsideration of H’s decision was correct on the facts in recognising that dialysis involves using aids and appliances to manage medication and the tribunal was correct in accepting that. Dialysis also involves therapy, as defined. And, as the submission for the Secretary of State comments, it involves monitoring a health condition, as defined.

The tribunal decision

6 The appeal came before a tribunal for oral hearing on 28 01 2015. H was present with a representative from the National Kidney Federation and gave evidence. In essence the submission by and for H was, as it was put in the written submission:

“There has been a complete lack of understanding as to just what CAPD means: it is a lifelong treatment which is very challenging and very difficult and cannot be carried out without the necessary “aids and appliances, and prompts” as described…”

7 The tribunal’s decision, given on the day, confirmed the decision for the Secretary of State after review the second time. With regard to the issues directly relevant to dialysis the tribunal decided that H was limited as noted above in managing medication and washing and bathing but not otherwise or to any greater extent. The enhanced mobility award was not in dispute and the tribunal rightly spent no time on it.

8 The tribunal’s decision on activity 3 (managing therapy) is as follows:

“[17] The tribunal explained to the Appellant and representative at the hearing that the key issue in Activity 3 is the extent to which someone needs supervision, prompting or assistance from another person to manage therapy. These are defined terms: supervision means the continuous presence of another person for the purpose of ensuring the Appellant’s safety; prompting means reminding or encouraging or explaining by another person; assistance means physical intervention by another person and does not include speech.

[18] The Appellant does not meet any of the higher-scoring activity 3 descriptors because he is able to manage his peritoneal dialysis treatment independently. The tribunal fully accepts that this is a time-consuming process, and more generally that the appellant has serious health issues. However, he does not require supervision, prompting or assistance from another person, which is a clear requirement of the higher-scoring descriptors.”

9 On washing and bathing, the tribunal found that the score given in the second review decision reflected H’s own evidence. Noting that the representative did not ask for that to be increased, it confirmed that decision. Separately the tribunal also confirmed the decision with regard to social engagement.

Grounds of appeal

10 H applied for permission to appeal. The application was accompanied by a fully and closely argued submission from a welfare rights expert. The central argument is that the tribunal misunderstood the terms of activity 3. Activity 3.c to 3.f require two factual elements: whether an individual requires supervision, assistance or prompting to complete the activity; and how long the activity takes. In this case the tribunal should have found that the activity needed assistance, and that the activity took at least 14 hours a week. This was within activity 3.f, so 8 points should have been awarded and with it the daily living component.

11 On granting permission to appeal, an Upper Tribunal judge noted that the assistance and prompting appeared to be aimed more at monitoring health than undertaking therapy. There were also issues about visits by a nurse. H was invited to submit further evidence on these points. In response, the representative provided evidence about the personal visits and telephone support given to dialysis patients generally and specifically to H. It was confirmed that without personal visits and telephone support H would not be permitted to undertake that form of dialysis at home.

12 The submission for the Secretary of State on the appeal did not support it. If there were errors of law in the tribunal decision, they were not material to the outcome. On the question of the extent of time involved for the purposes of applying activity 3, the Secretary of State submitted that the appellant and representative had misinterpreted the tests. The relevant time is that taken in respect of supervision, prompting or assistance, not the time taken on the therapy.

13 In support of that view the Secretary of State referred to the decision of Upper Tribunal Judge Sir Crispin Agnew of Lochnaw in CSPIP/40/15. In that case the judge found that use of a TENS machine was “deemed” therapy but that the only assistance the appellant required was 12 minutes a day even though the machine was used for many hours. The judge agreed that this was assistance for less than 3.5 hours a week and not as argued for more than 14 hours. I note however that that decision contains no reasoning about why the judge supported that reading of the activity rather than the appellant’s reading save that in his view the key phrase is “assistance to be able to manage therapy”. That, with respect, avoids the ambiguity in the full wording of the test rather than resolves it.

14 The representative added no further comments in response, save that – in common with the Secretary of State – there was no request for an oral hearing.

The tests in Activity 3 – managing therapy

15 The key descriptor of relevance in cases such as that of H, with extended daily dialysis every day, is:

“3.f Needs, supervision, prompting or assistance to be able to manage therapy that

takes more than 14 hours a week.”

If that test is met, then anyone meeting it will, without more, be entitled to the standard rate of the daily living component (and with it, other benefits to which that is a passport).

16 The problem with the test, as this case illustrates only too clearly, is that the statutory wording of the test is ambiguous. As I commented in my recent decision in MF v Secretary of State for Work and Pensions , CPIP 1679 2015:

“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.”

17 In that case I decided after rehearsing arguments:

“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.”

18 I concluded:

“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.”

19 The facts of that case were most unusual. The situation in which H finds himself are, sadly, much more common. They also give rise to issues about the meaning of “treatment” on which I comment above but which did not arise in that decision. But that of itself does not affect the proper meaning of the descriptor. I see nothing in the full arguments in this case that provides a basis for me taking a different view on the interpretation of descriptor 3 to the view I formed in that case.

20 I therefore confirm the decision of the tribunal on this point. Indeed, if I may say so, the summary of the position by the First-tier Tribunal that I have set out above, involving as it does reference to the relevant definitions, is an excellent brief explanation of the position.

Conclusion

21 My conclusion is that there are no material errors of law in the decision of the tribunal. Accordingly, I must dismiss the appeal and confirm the award of the enhanced rate of the mobility component but no award of the disability living component.

David Williams

Upper Tribunal Judge

16 10 2015