“10. In relation to the activity of 1 - Preparing Food, the respondent has scored the appellant 1b - 2 points. The appellant reported to the HCP that he usually prepares microwave meals. If sitting down, he would be able to peel and chop vegetables, open packaging and cook at a hob. He has pain in his back and his leg that restricts him standing for longer than 5 to 10 minutes. 11. Mr Khan's principle submission is that the appellant would still need to move around the kitchen when preparing and cooking a simple meal. Mr Khan argues that the appellant is not able to carry out the following parts of cooking a simple main meal safely, in a reasonable time or to an appropriate standard: a) Carry food which has been peeled and chopped to the sink to wash it b) Carry food from the sink to the table or cooker c) Carry food from the cooker to the sink (e.g. to drain rice, pasta, cooked vegetables) 12. Mr Khan argues that the above tasks are all normal procedures which are required when cooking a simple meal from fresh ingredients. Mr Khan argues that carrying items to the sink safely and without pain, fatigue etc. must therefore be considered a necessary part of the simple meal test. Mr Khan submits that the Northern Ireland case of JMcG v Department for Communities (PIP) supports the submission he makes. 13. We have carefully considered JMcG v Department for Communities (PIP). With respect, we find the case does not contain the ratio decidendi ascribed to it by Mr Khan. The relevant paragraphs are 33 to 36. We find there is nothing here to suggest that carrying food between various points in the kitchen and elsewhere can come within the definition of either "prepare" or "cook". Both "prepare" and "cook" are defined in the PIP Regulation 2013 and both have a narrow meaning. Neither definition encompasses carrying food between various places within the kitchen. 14. The appellant states in oral evidence that he is worried about carrying a pan of boiling water from the cooker to the sink which he states is a distance of about 10 to 15 feet. His friend Simon Sharp states that the distance between the cooker and sink is about 5 to 6 feet. We find there are inconsistencies in the oral evidence regarding the distance between the cooker and sink. Whatever that distance might be, we find the appellant does not need to carry a pan of boiling water. We find the appellant could easily use a slotted spoon to remove the cooked food from the pan of boiling water during the cooking process. We find the use of a slotted spoon is wholly unlikely to increase the appellant's level of pain and fatigue. We are not persuaded the appellant requires assistance or supervision to prepare and cook a simple meal for one person. We find that the preparing and cooking process can easily be accomplished with the use of various aids in the kitchen. We find he is likely to be able to prepare and cook a simple meal with aids safely, repeatedly, within a reasonable time period and to an acceptable standard for over 50% of the days in the required period. We have scored the appellant no more points for this activity. 15. In relation to the activity of 2 - Taking nutrition, the appellant reported to the HCP he uses normal cutlery to eat. Mr Khan's principle submission is that the appellant needs to be prompted to eat. It is argued that the appellant often lacks appetite and his carer regularly prompts him to eat. It is also argued relying on CB v SSWP (PIP)[2022] UKUT 100 (AAC) that the appellant has been given dentures and this can be considered as an aid. 16. Dealing firstly with the issue of prompting, we find there is nothing within either the HCP report or the oral evidence we have heard to indicate the appellant requires prompting to eat. The appellant confirmed that when food is placed in front of him, he is able to use normal cutlery to feed himself. We heard no evidence to indicate he would require any more than the food being placed in front of him for him to eat. We reject the submission that the appellant requires prompting to eat. We find the submission to be unsupported by the oral and documentary evidence. 17. As for whether dentures can be an aid, we find Judge Hemmingway's comment to be obiter dicta and in any event related to just one aspect of the many questions of whether in principle, dentures can be an aid or an appliance. The questions posed in CB v SSWP (PIP) were whether any loss of teeth must be attributable to an identifiable health condition; and whether an aid, to count as such, must assist with anything more than chewing. Judge Hemmingway only expressed a view that dentures did not need to assist with more than one of the necessary components of the definition of "take nutrition" for it to count as an aid. No other views were expressed. We find that the comments of Judge Hemmingway were in any event non-binding. Mr Khan did not adduce any relevant evidence as to whether the appellant's need for dentures was related to a health condition and we heard no relevant submissions on this point. The Tribunal gleaned from the appellant's oral evidence that he has had dentures for over 30 years and that he wears them every day. The appellant told us that he has not changed the food that he eats because of having dentures. Whilst we accept the appellant does have dentures, we are unable to conclude that the dentures is an aid to take nutrition because there is nothing to suggest, on the facts of this case, that it is a device which improves or replaces the appellant's impaired physical or mental function. We conclude there is nothing to indicate the appellant requires either an aid or prompting to take nutrition. We find that he is likely to be able to carry out this activity safely, repeatedly, within a reasonable time period and to an acceptable standard for over 50% of the days in the required period. He scores no points on this activity.”
“Moving around a kitchen 1. The tribunal was asked to decide whether Daily Living component Activity 1 requires consideration as to whether a person could move around a kitchen safely (e.g. risk of falls, knocking things over or dropping things) and to an acceptable standard (without causing significant pain).The tribunal decided that JMcG-v-Department for Communities (PIP) [2019] NICom 77 did not support the need to move around a kitchen and I would submit that this is wrong in law. In paragraph 35 of this decision Judge Stockman stated the following: It seems to me that "to make food ready for cooking ..."has quite a narrow meaning, however. To make food ready for cooking implies to me that only a range of tasks immediately preliminary to the process of heating food at or above waist height can be considered. This might include washing, peeling and chopping fresh vegetables; preparing meat or fish, including cutting it into smaller pieces; opening packets of pasta, rice or noodles; opening tins and packets containing other foodstuffs, including frozen items; pouring or emptying foodstuff items from packets or tins; using common kitchen equipment such as graters, grinders and food processors; putting food into pots or pans, and adding boiled water to pots. I do not intend to be prescriptive but to give a broad range of examples to which other relevant tasks may be analogous. 2. I accept only those tasks immediately preliminary to the process of heating food at or above waist height can be considered. I .would submit that some of the above tasks implicitly involve moving around a kitchen e.g. washing food items (getting to the sink and back to the cooker or preparation table), opening frozen items (involves getting to the freezer, taking things out and putting unused food back in the freezer). The tribunal was asked to consider CPIP/1695/2015 in which the use of lever taps was considered as an aid. This would imply that getting to the sink to use the lever tap must be considered. 3. In paragraph 14 of the full statement the tribunal has stated that a slotted spoon could be used to take cooked food out of a pot of boiling water. This may be appropriate for cooking foods such as peas it would not be appropriate for foods such as rice or pasta which generally need to be removed from the water at the same time to avoid some of it being overcooked. I would submit that the tribunal applied the law incorrectly when deciding that my client's ability to safely move around the kitchen carrying food as part of the normal meal preparation and cooking process did not need to be considered….. Dentures as an aid 6. The tribunal found that my client's use of dentures did not amount to him using an aid for nutrition. I would submit that this is wrong in law based on CB v SSWP (PIP). Although Judge Hemingway's comments were obiter dicta he did state the following: So, I have formed what is only an Opinion, albeit I have to say a very strongly held one, that for an item to count as an aid or appliance for the purpose of taking nutrition it does not need to assist with more than one of the necessary components as set out in the definition appearing at Schedule 1 part 1 of the PIP regulations and set out above 7. In paragraph 17 of the full statement the tribunal stated that I did not adduce any relevant evidence as to whether the need to use dentures was due to a health condition. The tribunal was told that my client had used dentures for about fifteen years because of the 'loss of his teeth. The tribunal stated that it was unable to conclude that my client's dentures were an aid to help with taking nutrition and I would submit that this is irrational finding as well as a failure to apply the law correctly.”
“Daily living component 78:-(1) A person is entitled to the daily living component at the standard rate if— (a) the person's ability to carry out daily living activities is limited by the person's physical or mental condition…. . (2) A person is entitled to the daily living component at the enhanced rate if— (a) the person's ability to carry out daily living activities is severely limited by the person's physical or mental condition…. (4) In this Part “daily living activities“ means such activities as may be prescribed for the purposes of this section.
“80:-(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… (3) Regulations under this section— (a) must provide for the questions mentioned in subsection… (1)… to be determined, except in prescribed circumstances, on the basis of an assessment (or repeated assessments) of the person; (b) must provide for the way in which an assessment is to be carried out; (c) may make provision about matters which are, or are not, to be taken into account in assessing a person. (4) The regulations may, in particular, make provision— (a) about the information or evidence required for the purpose of determining the questions mentioned in subsections (1) and (2); (b) about the way in which that information or evidence is to be provided; (c) requiring a person to participate in such a consultation, with a person approved by the Secretary of State, as may be determined under the regulations (and to attend for the consultation at a place, date and time determined under the regulations).”
“39. As with DLA, there is a limit to the scope of section 78. The phrase “limited by the person’s physical or mental condition” means that there must be a physical or mental cause of their limitation. A person must lack the physical or mental power or capability to perform the activity in question. A person will not qualify if the limitation on their ability to carry out an activity is due to their belief or habits (see paragraph 39 of R (DLA)3/06), choice or other circumstances such as their living arrangements or financial position (SC v Secretary of State for Work and Pensions (PIP)[2017] UKUT 0317 (AAC) at paragraphs 14-15). Although in practice a claimant’s limitation will very often be a consequence of what might be described as a “health condition”, it is not appropriate to add words to the statutory language. The unqualified use of the word “condition” reflects the aim of the legislation to focus on a functional approach to entitlement. 40. Moreover, there is nothing in the statutory wording which requires a physical or mental condition to be a direct cause of the limitation. As in relation to DLA (see R(DLA) 4/01 at paragraph 18), it is permissible to take into account a physical or mental condition which gives rise to some other factor which itself causes the limitation. In R(DLA) 4/01 the claimant’s functional limitation was caused by anxiety which itself was a consequence of deafness. Ms Apps [counsel for the Secretary of State] gave the examples of a physical or mental condition which gives rise to lack of appetite or brain fog.”
“4(1) For the purposes of section 77(2) and section 78 or 79, as the case may be, of the [WRA], whether C has limited or severely limited ability to carry out daily living or mobility activities, as a result of C's physical or mental condition, is to be determined on the basis of an assessment…. (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— (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 be 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 that person’s ability to carry out the activity in question would normally take to complete that activity.”
“3……The argument under 2b(i) was founded upon a contention that the claimant had missing teeth and so used dentures which, in such circumstances, ought to be regarded as an aid or appliance. The F-tT, whilst deciding the claimant scored 6 points under the activities and descriptors relevant to the daily living component and 10 points under the activities and descriptors relevant to the mobility component (translating into the award of the standard rate of the mobility component only) rejected [this] contention... On my reading of the statement of reasons it decided the claimant’s dentures could not be an aid or appliance for three reasons being: a) Parliament could not have intended dentures to be an aid or appliance for PIP purposes because they are a commonly used item; b) even if there were circumstances whereby dentures could be an aid or appliance such was not the case here due to a lack of any identifiable health condition which had led to the claimant’s loss of teeth and hence her need for dentures; and c) the definition of “taking nutrition” as set out at Part 1 of Schedule 1 to theSocial Security (Personal Independence Payment) Regulations 2013 (“the PIP Regulations”) requires an item to be needed for both chewing food and (my underlining) swallowing food before it can count as an aid….. 4…….As to the dentures issue, I thought the F-tT might have erred through speculating as to what Parliament might or might not have intended as opposed to focusing on the words used in the relevant legislation, through wrongly requiring an identifiable health condition which had led to the loss of teeth, and through thinking that to be an aid as defined an item had to assist with both chewing and swallowing rather than with just one of those functions….. 6. The Secretary of State, through her representative and having taken legal advice (paragraph 2 of a holding submission of13 December 2021 ), accepted, I think essentially for the same reasons which had caused me to give permission on the point, that the F-tT had erred with respect to its consideration of the toileting issue…..and I was, therefore, invited to set aside the F-tT’s decision on that basis and to substitute my own decision awarding a further 2 points under daily living descriptor 5b, thus enabling the claimant to reach the threshold for entitlement to the standard rate of the daily living component. The representative for the Secretary of State, Mr R Naeem, acknowledged my direction that the issue of the dentures be dealt with too but addressed it by suggesting that, if I were to do as asked, the issue would be rendered immaterial because a further 2 points under daily living descriptor 2b(i) would not change the level of entitlement. It was also suggested that there had been insufficient findings by the F-tT to demonstrate whether any inability of the claimant to chew was limited by a physical or mental condition (seesection 78(1) of the Welfare Reform Act 2012 ) such that there would be little merit in the Upper Tribunal attempting to take matters further. But striking a partially conciliatory note, Mr Naeem did say “It is, however, my submission that if any claimant cannot carry out any of the relevant actions prescribed in the statutory definition of taking nutrition, it can be said they cannot take nutrition”. [Having decided to allow the appeal on the issue of toileting and not deciding the dentures issue, Judge Hemingway went on to give his opinion on one aspect of the F-tT’s reasoning on dentures as follows] 9……..I do not see the harm in my expressing an opinion as to the F-tT’s view that to be an aid or appliance an item must assist with both chewing and swallowing, as the matter has been addressed and effectively conceded on behalf of the Secretary of State in the context of this appeal. 10. The F-tT thought that for dentures to be an aid or appliance (assuming in principle that they could be) they would have to assist with both the task of chewing and the task of swallowing. Regulation 2 of the PIP Regulations defines the term “aid or appliance” to mean “any device which improves or replaces C’s impaired physical or mental function” and to “include a prosthesis”
“10. What that approaches fails to appreciate is that the test is not whether someone can “prepare food” and “cook food”
“The activities have been selected to cover the key activities that are essential to everyday life, cumulatively providing a good proxy for individuals’ levels of participation.” 15. The approach of the FTT and that of the SSWP is wrong in law because it treats the test as a test of being able to prepare food plus being able to cook food: when that is done one can obviously leave out the activities that must be done to bring prepared food to the cooker etc. But that approach is wrong because it fails to appreciate that what is being tested is the ability to do both things in a directed fashion to result in a simple meal being available for eating. The Appellant’s approach does not make that error- it tests the activity which is essential to everyday life- getting a meal ready to eat.”
“that all difficulties with mobility are properly only assessed under the mobility descriptors. There is no place for an assessment of mobility difficulties as part of the daily living activities. If there were, there would be double counting, which is contrary to principle.”