TR v Secretary of State for Work and Pensions (Personal independence payment : General)

Factual and Procedural Background

The Appellant, aged 35, claimed Personal Independence Payment (PIP) on 21 January 2014, citing depression, anxiety, and optic atrophy causing severe visual impairment. A healthcare professional assessed the Appellant on 23 June 2014, noting difficulties with vision particularly in poor light and darkness, but concluded no difficulties under relevant PIP activities. The Secretary of State decided on 2 August 2014 that the Appellant was not entitled to PIP points. The Appellant sought mandatory reconsideration, providing further evidence including registration as sight impaired and severely sight impaired, but the decision was upheld. The Appellant appealed to the First-tier Tribunal (Ft-T), which dismissed the appeal following a paper determination without a hearing, awarding 2 points for preparing food but no points for mobility or other daily living activities.

The Appellant appealed to the Upper Tribunal on the grounds that the Ft-T erred in law, particularly in its approach to partial-day inability to perform tasks under the PIP Regulations. The Upper Tribunal Judge found an error of law in the Ft-T’s decision and set it aside, remitting the case for a full oral rehearing before a differently constituted tribunal.

Legal Issues Presented

1. How should decision-makers and tribunals assess cases where a claimant is unable to perform a task specified in a descriptor for part of each day but not the whole day under the Social Security (Personal Independence Payment) Regulations 2013?
2. Whether the First-tier Tribunal erred in law by failing to properly consider the impact of partial-day inability to perform relevant activities on the entitlement to PIP.
3. The correct interpretation and application of regulation 4 and regulation 7 of the 2013 Regulations, including the definition of "repeatedly" and the 50% rule in the context of fluctuations within a single day.

Arguments of the Parties

Appellant's Arguments

• The Appellant submitted that she experiences significant difficulties with vision, especially in poor lighting and darkness, requiring a special lamp for reading and assistance for journeys at night.
• She provided evidence of registration as sight impaired and severely sight impaired and described limitations in daily activities such as slow reading speed and reliance on assistance for unfamiliar or dark journeys.
• She contended that the Ft-T failed to properly consider these partial-day impairments and their impact on the descriptors relevant to PIP entitlement.

Respondent's Arguments

• The Respondent, represented by Attorney Pepper, supported the appeal, agreeing the Ft-T erred in law.
• She argued that if a descriptor applies at any point during a 24-hour period, it should be considered as applying for that entire day, subject to the disability being a direct consequence of the claimant's condition and the de minimis principle.
• She emphasized the need for the Ft-T to make clear factual findings about the claimant's difficulties throughout a typical day, including timing and conditions of journeys.
• The Respondent relied on the Government’s consultation response and the Department for Work and Pensions (DWP) PIP Assessment Guide as persuasive aids to legislative intent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
GW v The Secretary of State for Work and Pensions [2015] UKUT 0570 (AAC)	Persuasive value of the PIP Assessment Guide in interpreting the legislation	The Court acknowledged the Guide as persuasive but not binding, supporting the interpretation of assessment criteria.
Secretary of State for Work and Pensions v Moyna R (DLA) 6/03	Application of the 50% rule in the context of Disability Living Allowance	The Court clarified that the approach in Moyna R does not apply to fluctuations within a single day under PIP regulations.

Court's Reasoning and Analysis

The Court analysed the statutory framework of the Welfare Reform Act 2012 and the Social Security (Personal Independence Payment) Regulations 2013, focusing on the interpretation of partial-day incapacity under the descriptors in Parts 2 and 3 of Schedule 1. It noted that regulation 7’s 50% rule applies to variation from day to day, not within a single day, and that the Government’s consultation response and the DWP's PIP Assessment Guide indicate that if a descriptor applies at any point during a 24-hour period, it should be considered as applying for that entire day.

The Court accepted the Respondent’s submission that the inability must be a direct consequence of the claimant’s condition and must be more than trivial (de minimis principle). It reasoned that the Ft-T erred by failing to make clear findings on whether the Appellant’s partial-day inability to perform activities such as planning journeys or reading in poor light met the descriptors, incorrectly concluding that ability to perform these activities during part of the day precluded entitlement.

The Court further identified errors in the Ft-T’s assessment of the preparing food activity, noting omission to consider supervision or assistance descriptors and failure to apply regulation 4(2A) regarding safety, standard, repetition, and reasonable time.

Accordingly, the Court held that the Ft-T’s approach was legally flawed and its decision must be set aside to allow a full reconsideration with an oral hearing.

Holding and Implications

The Upper Tribunal ALLOWED the appeal, set aside the First-tier Tribunal’s decision dated 11 March 2015, and REMITTED the case for a complete rehearing before a differently constituted First-tier Tribunal.

The rehearing is to be oral, allowing the Appellant the opportunity to attend and provide evidence on how her impairments affect her daily activities throughout a typical day. The new tribunal must undertake a full reconsideration of all relevant issues, including the correct application of the legislation to partial-day incapacity under PIP descriptors.

No new legal precedent was established by this decision; the ruling clarifies the correct approach to partial-day inability under the existing legal framework and directs proper procedural steps to ensure a lawful determination of entitlement.