DMCK v Department for Communities (PIP) (PIP - Daily Living Activity 4 - Washing and Bathing)

Factual and Procedural Background

The Appellant made a claim for Personal Independence Payment (PIP) starting 16 August 2017. On 1 November 2017, a decision maker from Company A decided the Appellant was not entitled to either component of PIP from that date. This decision was reconsidered and revised on 12 December 2017, awarding the Appellant the standard rate of the daily living component from 8 December 2017 to 8 October 2021, but denying entitlement to the mobility component.

The appeal tribunal hearing took place on 29 July 2019, where the Appellant, accompanied by a family member and represented by Attorney Quinn of Company B, contested the decision. The tribunal disallowed the appeal, confirming the revised decision, but applied a descriptor from the relevant regulations which the decision maker had not applied, concluding the Appellant did not qualify for the mobility component at the standard rate.

Following the tribunal decision, an initial application for leave to appeal was rejected for being late. A subsequent application was accepted for special reasons, leading to an oral hearing on 15 March 2022 where the Appellant was represented by Attorney Hawkins and Company A by Attorney Patterson.

Legal Issues Presented

1. Whether the appeal tribunal erred in law by failing to properly apply descriptor 4(e) concerning assistance needed to get in or out of a bath or shower, specifically by not considering the claimant's ability to use an unadapted bath or shower.
2. Whether the tribunal failed to provide adequate reasons for its conclusions on the Appellant's ability to manage toileting and continence without assistance.
3. Whether the tribunal failed to address conflicts between medical evidence from the Appellant's General Practitioner and the Disability Assessor's report, particularly regarding mobility.
4. Whether the tribunal erred in its assessment of psychological distress related to mobility activity 1, specifically the impact of wearing a colostomy bag on the Appellant's ability to undertake journeys without overwhelming psychological distress.

Arguments of the Parties

Appellant's Arguments

• Ground 1 - Activity 4: The tribunal erred in calculating descriptor points by focusing on the adapted shower and failing to consider the ability to get in or out of an unadapted bath or shower, as required by precedent. The tribunal's reasoning was inadequate.
• Ground 2 - Activity 5: The tribunal failed to provide adequate reasons for concluding the Appellant could manage toileting and continence without assistance despite evidence of difficulties with a stoma bag and assistance needed.
• Ground 3: The tribunal incorrectly stated that the GP evidence and Disability Assessor's report were not in conflict, failing to address contradictions, particularly about mobility aids and restrictions.
• Ground 4 - Mobility Activity 1: The tribunal did not properly account for the psychological distress caused by problems with the colostomy bag affecting the Appellant's ability to undertake journeys without overwhelming distress, contrary to relevant legal principles.

Respondent's Arguments

• The tribunal awarded 11 points for daily living activities, reflecting findings that the Appellant required aids but not higher scoring descriptors. The reasons, while not itemised for each activity, were sufficiently detailed.
• Regarding toileting and continence, the tribunal justified awarding points for aids but not assistance, relying on medical records and concluding the Appellant was not as restricted as claimed.
• The Disability Assessor’s report and additional medical evidence were considered together, with the tribunal’s conclusions consistent with the GP evidence. There was no legal obligation to explain differences between PIP and previous Disability Living Allowance awards.
• On psychological distress and mobility activity 1, the tribunal found no evidence of mental health involvement at the relevant time and concluded the Appellant’s mental and physical health did not prevent planning and following journeys unaided, making the tribunal’s findings reasonable.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982	Defines errors of law for appellate tribunals, including perverse findings, failure to give reasons, and misdirection of law.	Used to explain the threshold for identifying an error of law in the appeal tribunal’s decision.
SP v Secretary of State for Work and Pensions [2016] AACR 43	Clarifies that the word "or" in descriptor 4e is disjunctive and that assessment should consider ability to get in or out of an unadapted bath or shower.	Adopted to conclude the tribunal erred by focusing only on the adapted shower and not considering an unadapted bath or shower.
AA v Secretary of State for Work and Pensions [2018] UKUT 339 (AAC)	Addresses the assessment of psychological distress in mobility activities and the need for accompaniment to avoid overwhelming distress.	Referenced in submissions regarding the tribunal’s treatment of psychological distress related to the colostomy bag.
PE v Secretary of State for Work and Pensions (PIP) [2015] UKUT 309 (AAC)	Establishes that functional limitations should be assessed against a consistent standard, not lowered by adapted aids.	Applied by analogy to support that assessment should be based on unadapted bath or shower, not adapted facilities.
JF v Department for Communities (PIP) [2019] NICom 072	Clarifies no direct link between Disability Living Allowance and PIP criteria; tribunal not required to explain differences in awards.	Used to support the respondent's argument regarding differing benefit assessments.
DP v Department for Communities (PIP) [2020] NICom 1	Discusses the powers available to appeal tribunals and appellant options in relation to those powers.	Referred to in directions for the reconstituted appeal tribunal and parties.
R2/04(DLA) (Tribunal of Commissioners)	Requires tribunals to acknowledge and explain reasons for rejecting medical evidence unless obvious.	Invoked to argue the tribunal failed to adequately address conflicting medical evidence.

Court's Reasoning and Analysis

The Social Security Commissioner identified a material error of law in the appeal tribunal’s decision concerning descriptor 4(e) of the Personal Independence Payment Regulations. The tribunal focused on the Appellant’s ability to use an adapted shower rather than considering whether the Appellant needed assistance to get in or out of an unadapted bath or shower, as required by the binding precedent in SP v SSWP.

Applying a purposive and consistent approach, the Commissioner agreed that the word "or" in descriptor 4e is disjunctive, meaning that needing assistance with either getting in or out of a bath or a shower suffices to satisfy the descriptor. Furthermore, the assessment must be against the standard of an unadapted bath or shower, not an adapted one, to avoid disadvantaging claimants who use adaptations.

The Commissioner noted that the tribunal failed in its inquisitorial role to investigate this issue adequately and did not consider the Appellant’s ability to use an unadapted bath, despite evidence that the Appellant raised this point.

This error was material because had the tribunal properly applied the law, the Appellant would have gained an additional point, reaching the threshold for an enhanced rate of the daily living component.

Regarding other grounds of appeal, the Commissioner found no need to consider them after identifying the material error. However, the Commissioner acknowledged the thoroughness of the parties’ submissions.

The Commissioner was unable to substitute a new decision due to lack of access to detailed evidence, including medical evidence, and thus referred the case to a differently constituted appeal tribunal for re-determination, directing that the tribunal take into account the legal principles and guidance outlined.

Holding and Implications

The Social Security Commissioner GRANTED LEAVE TO APPEAL and SET ASIDE the decision of the appeal tribunal dated 29 July 2019 on the basis that it was in error of law.

The case was referred to a differently constituted appeal tribunal for re-determination of all issues, with directions to apply the correct legal principles, including the proper interpretation of descriptor 4e relating to assistance with bathing activities.

The direct effect is that the Appellant’s entitlement to Personal Independence Payment remains undecided and must be re-assessed in accordance with the law as clarified. No new precedent was established beyond applying existing binding authorities, and the decision emphasizes the importance of tribunals adhering to correct legal standards in benefit assessments.