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The claimant had essential hypertension, non-diabetic hyperglycaemia, bronchiectasis, benign prostatic hyperplasia and chronic kidney disease stage 3. He was awarded nil points for both components of PIP. The First-tier Tribunal awarded him the standard rate of the mobility component but refused the daily living component, having decided to award him a combined total of 4 points in the activities for washing and bathing and for dressing and undressing. Included in the tribunal’s reasoning was that, despite his problems with breathlessness, the claimant was able to wash and bathe using an aid in the form of a grab rail and so scored just 2 points under descriptor 4b.

Judge Brewer allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in its approach to the question of the claimant’s need to use an ‘aid’ to carry out certain activities. Regarding getting in and out of the bath, the tribunal concluded he could carry out this activity with the use of a grab rail as an aid, but erred in not considering this ‘through the lens’ of regulation 4(2A) and assess whether the aid was sufficient to ensure he could wash and bathe to an acceptable standard and/or whether the aid was able to overcome his functional impairment (paragraph 58). Other errors were not properly considering the impact of the claimant’s breathlessness on his walking ability, rejecting evidence of his problems with swallowing without considering his reports of constant coughing in the light of his historic tuberculosis and in failing to consider his fatigue related to his medical conditions when assessing his difficulties with budgeting.

The judge rejected the submission of the Secretary of State that a feature such as handles already fitted on a bath could not constitute an ‘aid’, in so far as they could assist any person, irrespective of their functional impairment. The decision of Judge Jacobs in CW v SSWP (PIP) [2016] UKUT 197 (AAC) was cited in support. Judge Brewer did not accept the Secretary of State’s argument, to the effect that if a device assists everyone then it could not be an aid, as a ‘blanket proposition’ (paragraph 40). Firstly, CW:

‘does not establish as a blanket principle that if a device is commonly used by non-disabled and disabled persons alike it cannot constitute an aid for the purposes of the regulations. That is an impermissible overstatement of what CW decided' (paragraph 41).

It was axiomatic that an everyday object was likely to be used by the functionally impaired and non-functionally impaired alike. What was held in CW was that someone who sat on a bed rather than stood to get dressed was unable to demonstrate a limitation with the functions that are required for that activity. But that (said Judge Brewer) was not authority that ‘normality of behaviour’ should be the cornerstone of establishing whether something is an aid or not. The definition of ‘aid’ under regulation 2 of the Social Security (Personal Independence Payment) Regulations 2013, SI No.377, is that it is ‘any device which improves, provides or replaces [the claimant’s] impaired mental or physical function...’. So, the limitation in the definition ‘is directed not at what the device is, but what it does for the PIP claimant, i.e. does it improve, replace or provide for the impaired functioning to undertake the descriptor task’ (paragraph 47). Everyday devices can operate as an aid: 

‘It may well be that where a PIP claimant relies on their use of a common everyday device as evidence of functional impairment it may have limited or no value in establishing that function impairment (see the wooden spoon analogy in CW). However, that remains a question of fact for the tribunal exercising its inquisitorial function and assessing all the evidence before it’ (paragraph 51). 

Where a claimant had evidenced a physical condition and established that but for the bath handles he could not get in and out of the bath, the handles were an aid, as they were ‘a device which operates to overcome the functional impairment in question’ (paragraph 52).

Comment from CPAG

This decision is an important clarification of the way the decision in CW should be interpreted. It is a clear rebuttal of the Secretary of State’s position that everyday items cannot constitute an aid. See our article: PIP and aids for more.

Decision in brief

Tribunal properly directed itself as to the principles (re admission, in exceptional circumstances, of appeals made outside that time limit) in Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818 – it may be relevant to that test whether claimant had done everything they could to appeal in time – but tribunal erred in using its discretion to strike the appeal out without holding a hearing – should have considered whether it was fair and appropriate to do so

Summary

The claimant was in receipt of UC. On 17 April 2021, the claimant reported in her online journal that she had a health condition that affected her capacity for work and that she was a carer for her disabled daughter. The claimant asked if she needed to submit a ‘fit note’ but received no reply. She supplied a fit note on 24 February 2022, dated 15 April 2021. Having had a work capability assessment (WCA) applied and been assessed as having limited capability for work-related activity (LCWRA), it was decided that the three-month ‘relevant period’ before the LCWRA element could be included in the award started on 24 February – ie, the date she supplied the fit note. On appeal, the First-tier Tribunal upheld that decision, holding that the relevant rule (at regulation 28 of the Universal Credit Regulations 2013 No.376) provided that the relevant period only began when the fit note was provided.

Judge Church allowed the claimant’s further appeal and substituted a decision that the relevant period in this case began on 17 April 2021 – ie, the date on which the claimant reported her health problems on her online journal but received no response to her query about submitting a fit note. The tribunal had erred in its interpretation of the meaning of regulation 28. In fact, that did not preclude a self-certification from starting the three-month period. Further, given the fact that the DWP had not responded to the claimant’s query about a fit note, it was unreasonable (in terms of the legislation) to require her to have done so at that point, and, together with the later submission of a ‘backdated’ fit note, the claimant had bridged the gap between her report on the journal and the actual date on which the fit note was submitted.

Regulation 28 was the relevant rule for the relevant period. That provides that (except in cases concerning claimants earning above a certain threshold) the relevant period begins on ‘the first day on which the claimant provides evidence’ of their limited capability for work, ‘in accordance with the Medical Evidence Regulations’. Those regulations are the Social Security (Medical Evidence) Regulations 1976 No.615. Regulation 2 of those regulations provides by default that the medical evidence required is, in effect, a fit note. But an exception to that at subparagraph (1A) is that where it would be ‘unreasonable’ to require a fit note, the person shall provide ‘such other evidence as may be sufficient’. Another exception was at regulation 5, which provides for self-certification for the first seven days of sickness. The judge could see ‘no reason’ why the claimant’s report in her journal on 17 April should not be self-certification for the first seven days of her sickness (paragraph 22). Further, given that the claimant reported her sickness timeously and that her query about submitting a fit note was unanswered it was ‘unreasonable’ (per regulation 2(1A) of the Medical Evidence Regulations) to require her to provide a fit note for as long as that query went unanswered. The judge was satisfised that the claimant’s report on her journal together with the later submission of a backdated fit note amounted to ‘such other evidence as may be sufficient’, with the backdated fit note serving to ‘bridge the gap’ back to her initial self-certification (paragraph 26).

Comment from CPAG

It is common for the default requirement for a fit note to start the relevant period to be mistaken for an absolute rule with no exceptions. This decision is clear authority that such an interpretation is wrong. 

Thanks to Lee Kempson, Welfare Rights Officer at City of Wolverhampton Council and the claimant’s representative, for sending us this decision.