Personal independence payment – assessment of activity – interpretation of “safely” in regulation 4(2A) and (4) – assessment of likelihood of harm - interpretation of “safety” for the purpose of supervision in Part 1 of Schedule 1
Each of the three appellants made claims for personal independence payments (PIP). RJ suffered from epilepsy and was at risk of seizures which could occur without warning. The Department for Work and Pensions decided she was not entitled to PIP. She appealed to the First-tier Tribunal (F-tT). The F-tT decided that she needed supervision to make a meal, assistance to manage therapy while she was suffering a seizure and in the hours after, and prompting or encouragement to shower. It also found that the risk of suffering a seizure meant she needed to be encouraged and accompanied to go out and so awarded her points for needing prompting to undertake a journey. Due to the infrequency of the seizures however, it found that she was conscious most of the time and could move around freely and so awarded her no points for mobility activity 2. She was awarded the daily living component but not the mobility component of the award. She appealed to the Upper Tribunal on the ground that the supervision requirements which applied to the relevant daily living activities applied equally to the mobility activities and the Secretary of State cross-appealed against the award for daily living activities 1 and 3. GMcL suffered from epilepsy, depression and anxiety, and was at risk of seizures which could occur at any time without warning. On his appeal to the F-tT against a decision refusing him PIP, the F-tT found that given the infrequency of the seizures he would not require supervision or assistance to carry out the relevant daily living and mobility activities for the majority of the time. CS was profoundly deaf and used cochlear implants which she was unable to wear in the bath. She claimed to require supervision because she would not hear a fire alarm while she was bathing, and that she needed someone with her when outside because she could not hear cars or warning noises, had poor road sense and had difficulty understanding instructions and timetables. The Secretary of State decided she was not entitled to PIP and she appealed to the F-tT. The F-tT found that there was only a remote possibility of a fire occurring while CS was in the bath and that was a minimal risk when assessing the safety of the activity. It found that, while she preferred to be accompanied when out for reassurance, using her hearing and vision she was able to be safe when following a route. The F-tT rejected CS’s claims for points under activities 8 or 10. The principal issue before the three-judge panel of the Upper Tribunal was the interpretation of the word “safely” as defined in regulation 4(4), and of the word “safety” in the phrase “for the purpose of ensuring C’s safety” in the definition of supervision in Part 1of Schedule 1 of the Social Security (Personal Independence Payment) Regulations 2013.
Held, allowing the appeals, that:
the meaning of “safety” in the definition of “supervision” in Part 1 of Schedule 1 of the PIP Regulations was to be approached consistently with “safely” in regulation 4(4)(a) (paragraph 27);
an assessment under paragraph 4(2A)(a) of the PIP Regulations that an activity cannot be carried out safely did not require that the occurrence of harm was “more likely than not”, a tribunal must consider whether there was a real possibility that could not be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case. Both the likelihood of the harm occurring and the severity of the consequences were relevant (paragraphs 33, 37 and 56);
if, for the majority of days, a claimant was unable to carry out an activity safely or required supervision to do so, then the relevant descriptor applied. That may be so even though the harmful event or the event which triggered the risk actually occurred on less than 50 per cent of the day (paragraphs 54 to 55);
the same approach applied to the assessment of a need for supervision (paragraph 56).
The Upper Tribunal set aside the First-tier Tribunal’s decision and remitted the case for hearing before a differently constituted tribunal.