“(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) to an acceptable standard; (c) repeatedly; and (d) within a reasonable time period. … (4) In this regulation —[2017] UKUT 105 (AAC) CSPIP/97/2016 CSPIP/106/2016 CSPIP/385/2016 CPIP/1599/2016 4 “safely” means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity;…”
“the continuous presence of another person for the purpose of ensuring C's safety”
“when considering whether an activity can be undertaken safely it is important to consider the risk of a serious adverse event occurring. However, the risk that a serious adverse event may occur due to impairments is not sufficient - the adverse event must be likely to occur if the activity was undertaken”
“the risk that a serious adverse event may occur due to impairments is insufficient for an award of points under the descriptor; there has to be evidence that, if the activity was undertaken, the adverse event is likely to occur…”
“In everyday usage one meaning of the word likely, perhaps its primary meaning, is probable, in the sense of more likely than not. This is not its only meaning. If I am going walking on Kinder Scout and ask whether it is likely to rain, I am using likely in a different sense. I am inquiring whether there is a real risk of rain, a risk that ought not to be ignored. In which sense is likely being used in this subsection? In section 31(2) Parliament has stated the prerequisites which must exist before the court has power to make a care order. These prerequisites mark the boundary line drawn by Parliament between the differing interests. On one side are the interests of parents in caring for their own child, a course which prima facie is also in the interests of the child. On the other side there will be circumstances in which the interests of the child may dictate a need for his care to be entrusted to others. In section 31(2) Parliament has stated the minimum conditions which must be present before the court can look more widely at all the circumstances and decide whether the child's welfare requires that a local authority shall receive the child into their care and have parental responsibility for him. The court must be satisfied that the child is already suffering significant harm. Or the court must be satisfied that, looking ahead, although the child may not yet be suffering such harm, he or she is likely to do so in the future. The court may make a care order if, but only if, it is satisfied in one or other of these respects. In this context Parliament cannot have been using likely in the sense of more likely than not. If the word likely were given this meaning, it would have the effect of leaving outside the scope of care and supervision orders cases where the court is satisfied there is a real possibility of significant harm to the child in the future but that possibility falls short of being more likely than not. Strictly, if this were the correct reading of the Act, a care or supervision order would not be available even in a case where the risk of significant harm is as likely as not. Nothing would suffice short of proof that the child will probably suffer significant harm. The difficulty with this interpretation of section 31(2)(a) is that it would draw the boundary line at an altogether inapposite point. What is in issue is the prospect, or risk, of the child suffering significant harm. When exposed to this risk a child may need protection just as much when the risk is considered to be less than 50-50 as when the risk is of a higher order. Conversely, so far as the parents are concerned, there is no particular magic in a threshold test based on a probability of significant harm as distinct from a real possibility. It is otherwise if there is no real possibility. It is eminently understandable that Parliament should provide that where there is no real possibility of significant harm, parental[2017] UKUT 105 (AAC) CSPIP/97/2016 CSPIP/106/2016 CSPIP/385/2016 CPIP/1599/2016 16 responsibility should remain solely with the parents. That makes sense as a threshold in the interests of the parents and the child in a way that a higher threshold, based on probability, would not. In my view, therefore, the context shows that in section 31(2)(a) likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.”
“if an individual can complete a particular descriptor, and regularly does so during their daily life, but they cannot satisfy it safely, they would not be deemed able to complete it.”
“A lot of the feedback we received questioned why the initial proposals did not reflect the need for supervision to ensure an individual’s safety while carrying out activities. We have recognised and addressed this in the second draft of the criteria. The descriptors now take account of whether an individual requires ‘supervision’ from another person – defined as their continuous presence throughout the task to prevent a potentially dangerous incident occurring. This approach is very similar to that currently taken in Disability Living Allowance.”
“the relative frequency or infrequency of the attacks is immaterial so long as the risk of ‘substantial’ danger is not so remote a possibility that it ought reasonably to be disregarded.”
“Safety is always taken into account throughout the assessment by considering whether an activity can be completed ‘reliably”
“Our intention has always been the same - we want to target support at those who need it most. We have always said that we will not just look at whether individuals can carry out activities but also the manner in which they do so. I know that disabled people and their representatives feel strongly that this important concept is set out in law and I am happy to do this.”
“The addition to the regulations formalises the current wording included in the draft PIP guidance”
“9. …Some of [CS]’s evidence the Tribunal did not find credible, in particular that a person at her numerical age, without a mental health condition is unable to offer the correct change or check her change when purchasing a ticket.[2017] UKUT 105 (AAC) CSPIP/97/2016 CSPIP/106/2016 CSPIP/385/2016 CPIP/1599/2016 25 … 20….[CS]’s academic achievements evidence a functional level of maths. She is able to use a bank card and check her account. [CS] is able to budget within the definition of this activity. No points scored.”