Tribunal reduces PIP award for woman requiring therapeutic nutrition assistance

Case No: CSPIP/386/2015

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CSPIP/386/2015

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The Secretary of State’s appeal is allowed.

The decision of the Stirling First-tier Tribunal of 27 July 2015 is set aside.

That decision is remade as follows:

The claimant is awarded 6 points for descriptor 2(e) and 4 points for descriptor 5(d) of

part 2 of schedule 1 to the Personal Independence Payment Regulations 2013.

She is entitled to the standard rate of the daily living component of personal

independence payment from 22 October 2014 to 21 October 2016.

REASONS FOR DECISION

1. This is an appeal by the Secretary of State, brought with the permission of District

Tribunal Judge Susan Boyd, against the decision of the Stirling First-tier Tribunal of 27 July

2015.

2. The claimant is a [NAME]. As the tribunal succinctly state in

paragraph 2 of their findings of fact on document 86 she “suffers from malabsorption

requiring therapeutic parenteral nutrition” i.e. nutrition provided other than by the alimentary

tract.

3. On 22 October 2014 the claimant applied by telephone for personal independence

payment. She then submitted an application form dated 18 November 2014. On 15 January

2015 she had a face-to-face consultation with a Health Care Professional, a nurse.

4. On receipt of the report of that consultation, a decision maker, on 20 January 2015,

awarded the claimant 2 points for descriptor 2(c), “needs a therapeutic source to be able to

take nutrition”, of the daily living activities and no other points for any of those activities. She

also made no award for mobility activities. Accordingly the claimant’s application for personal

independence payment was refused.

5. The claimant sought a mandatory reconsideration of the decision maker’s decision.

That resulted in no change to that decision.

6. The claimant appealed. The tribunal increased her award for Activity 2 to one for

descriptor 2(e), “needs assistance to be able to manage a therapeutic source to take

nutrition”, granting her 6 points. They also awarded her 8 points for descriptor 3(f) “needs

supervision, prompting or assistance to be able to manage therapy that takes more than

fourteen hours a week.” The tribunal thus awarded the claimant a total of 14 points for daily

living activities. Their decision was to award her an enhanced award for daily living activities

for two years from 22 October 2014, her date of claim. The tribunal confirmed the decision

maker’s decision to award the claimant zero points for mobility activities.

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7. The tribunal’s findings of fact which are especially relevant read as follows on

documents 86 – 87:

“3. The origins of the Appellant’s difficulties follow on from complications which

arose from a gall bladder operation some years ago. This led to the Appellant

being unable to absorb nutrition via her stomach by normal means. Various

treatments were attempted to resolve difficulties including follow-up surgery.

4. Due to malabsorption the Appellant lost considerable weight and became frail.

Her weight reduced to some 7 stones.

5. The Appellant has ordinarily worked throughout her adult life. By June 2014

she became too ill and frail to work.

6. In or about August 2014 the Appellant commenced Total Parenteral Nutrition

treatment. In effect all of the Appellant’s nutrition is taken in liquid form by

blood vessel.

7. The Appellant required a period of inpatient care in hospital in order to be

trained personally as to how to manage her necessary therapy.

8. The Total Parenteral Nutrition treatment requires an array of medical

equipment together with expertise and skill to use the equipment. Aseptic

technique is required to avoid infection.

9. The Appellant’s treatment is specifically prescribed to be taken 5 nights out of

7 nights for at least 10 hours per night. The Appellant’s Total Parenteral

Nutrition treatment subsists for at least 50 hours per week.

10. The Appellant requires assistance throughout a significant proportion of the

time that she is taking the necessary treatment. Due to the nature of the

equipment required, including a drip stand, feeding pump and the necessary

equipment to ensure aseptic preparation the only location that the Appellant

can undertake the task is within her bedroom. This is where all of the

necessary components of her treatment including additional fridge which has

been provided in order to store the liquid nutrition. These are all standard

necessary components of such treatment.

11. The Appellant’s husband works. The Appellant has two young children of

school age. The only reasonable timeframe within which the Appellant can

manage and receive her necessary treatment is between 7.00 pm and 7.00

am.

12. As a consequence of the large quantities of liquid being taken by the

Appellant throughout her course of the treatment she requires to visit the toilet

frequently. She is unable to do this safely in the absence of assistance. For

around the first 5 hours or thereby of her treatment the bag of liquid is too

heavy for her to transport personally. The Appellant cannot be disconnected

from the liquid feeding bag. She relies upon the assistance of her husband.

Once the bag is lighter the Appellant is able to carry the bag herself but this is

throughout night time hours. The Appellant is woken due to the need to go to

the toilet regularly. She is prescribed a sleeping tablet at night. She is in a

tired state. She reasonably requires the assistance and intervention of her

husband to navigate to the toilet and back so as to avoid any difficulty arising

with her treatment.

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13. The Appellant’s husband requires to assist the Appellant for around 3 hours

each night she is receiving her Total Parenteral Nutrition treatment. The

Appellant’s husband assists the Appellant for approximately 15 hours each

week.”

8. The tribunal’s reasons read as follows on documents 87 - 88:

“REASONS FOR DECISION

“1. The Tribunal had the benefit of taking clear oral evidence from the Appellant.

The Tribunal found the Appellant both credible and reliable. The Appellant is

a very positive person who has faced her health challenges without complaint

whilst simultaneously fulfilling the role of a proactive caring parent to two

young children.

2. On the basis of the evidence the Tribunal had no doubt that the management

of the Appellant’s health condition requires the assistance of another person,

namely her husband. Reference is made to the Tribunal’s Findings of Fact

which are referred to for their terms.

3. There is no dispute about the fact that the Appellant’s taking of nutrition is by

a therapeutic source. The Respondent does not dispute this. Given the

Tribunal’s finding that she requires assistance from another person to manage

this therapeutic source, the Tribunal awarded 6 points in terms of activity 2E

of the daily living activities.

4. The Tribunal concluded that the nature of the Appellant’s Total Parenteral

Nutrition treatment is therapy for the purposes of activity 3 of the daily living

activities. The nutrition by blood vessel is prescribed medically and in the

absence of the taking of such therapy the Appellant will become very ill. As

the Tribunal found that the Appellant requires assistance from another person,

namely her husband, to manage this therapy and that this assistance is for

more than 14 hours a week, the Tribunal awarded the Appellant 8 points in

terms of activity 3F of the daily living activities.

5. The Tribunal considered all other daily living activities and found none to

apply. The Tribunal did not find any mobility activities applicable.

6. For the foregoing reasons the Tribunal found the Appellant entitled to the daily

living component of the Personal Independence Payment at the enhanced

rate. The Appellant attracted 24 points under the daily living activities.

7. The Tribunal made the award for a period of 2 years from the Application date

of 22 October 2014. There is no likelihood in the near future of there being a

material variation to the nature of the Appellant’s treatment. There is scope in

the longer term future for a variation to occur. This may include the times of

treatment and the ability to become more mobile with more modern

equipment. The Appellant will also become more adept and experienced.”

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9. It is apparent from the tribunal’s findings of fact and reasons that they treated the

assistance the claimant received from her husband almost every night in connection with her

therapeutic parenteral nutrition as qualifying her both for an award for descriptor 2(e) and

one for descriptor 3(f).

10. The Secretary of State in his grounds of appeal in paragraph 3 of document 100

concedes the correctness of the tribunal’s award of descriptor 2(e). In doing so the

Secretary of State’s submission writer correctly refers to the definition of “therapeutic

source” in part 1 of schedule 1 to the Personal Independence Payment Regulations 2013 as

including “parenteral …. tube feeding, using a rate limiting device such as …. feed pump”.

I entirely agree with that concession.

11. However in paragraphs 4 - 5 of document 100 the Secretary of State’s submission

writer goes on to submit that the tribunal’s decision in respect of descriptor 3(f) is erroneous

in law on the ground that the claimant’s nutrition from a “therapeutic source” could not also

count as “therapy” for the purposes of Activity 3.

12. In my opinion, the correct approach in dealing with the issue of whether assistance

required by a claimant can or cannot count for the purposes of more than one of the

descriptors of part 2 of schedule 1 to the Personal Independence Payment Regulations 2013

is well expressed by Upper Tribunal Judge Williams in paragraph 28 of [NAME]. v Secretary of

State for Work and Pensions [2015] UKUT 0554 (AAC). That paragraphs reads as follows:

“28. The first point in dealing with this issue is that there is no rule in the PIP

legislation that states that because the facts of a [NAME]’s

problems fall to be assessed as creating limits within one descriptor they

cannot also be assessed as creating limits within another descriptor. And it

does not follow from the structure of Schedule 1 that because a set of facts

gives rise to a recognised limit for, say, the need of an aid or appliance to

manage medication then that excludes any consideration of the use of that aid

or appliance for any other descriptor. To take a broader example, the fact that

someone has a [NAME] physical limitation for which assistance is needed

for one described activity does not prevent the same limitation being relevant

to any other descriptor. The contrary is clearly the case. For example, where

the problem is limited ability to use upper limbs. that will be potentially

relevant to several descriptors. That is an approach accepted by Judge

Hemingway in PE v Secretary of State for Work and Pensions [2015] UKUT

0309 (AAC) about an argued overlap between two other descriptors. In that

case Judge Hemingway found that the matter of overlap was not decided by

any argument about “double counting” but because the specific descriptors in

issue did not permit it (paragraph [30]). So it does not follow that because [NAME]

has a need that can be assessed within descriptor 3 it falls to be so assessed

but should not, if relevant, also be assessed for descriptor 5. Both should be

considered on all the evidence. I therefore turn to that descriptor.”

13. To summarise the position established by Upper Tribunal Judges Williams and

Hemingway in the passage from [NAME] cited in paragraph 12 above, there is no rule of law

precluding “double counting” between the descriptors of part 2 of schedule 1. The question

of whether assistance can count under one or more of those descriptors depends on the

construction of the precise statutory language used in such of them as are potentially

relevant in any given case.

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14. Applying the approach laid out in paragraphs 12 – 13 above, I turn to the statutory

text of descriptor 2(c) and of descriptor 3(f) of daily living activities. The former refers to a

claimant needing “assistance to be able to manage a therapeutic source to take nutrition”. It

is not in dispute that the tribunal did not err in law in holding that the claimant satisfied that

statutory provision. The latter descriptor refers to a claimant needing “supervision, prompting

or assistance to be able to manage therapy that takes more than fourteen hours a week”. In

my opinion, the claimant on the facts found by the tribunal could have been said to “need

such assistance”, particularly when the definition of what it means to “manage medication or

therapy” in paragraph 1 of schedule 1 is taken into account. But that would only have

merited an award for descriptor 3(f) had the highly specific provisions of descriptor 2(c) not

appeared in part 2 of schedule 1. I consider that those precise provisions have the effect of

taking the relevant assistance entirely out of the scope of Activity 3 “managing therapy”

where it otherwise would have been and placing it within the scope of Activity 2 “taking

nutrition”. That is the effect of a maxim of statutory construction expressed in Latin as lex

specialis derogat legi generali. The principle which that maxim expresses has been well

expressed in English and clearly explained by Lord Kerr in paragraph 62 of Moohan v Lord

Advocate [2015] S.C. (UKSC) 1 at p.18 as follows:

“Where two provisions are capable of governing the same situation, a law dealing

with a specific subject matter overrides a law which only governs general matters.”

Applying that principle to the facts of this case means that the specific provisions of

descriptor 2(e) apply but not additionally the general provisions of descriptor 3(f).

15. Accordingly the tribunal erred in law in awarding points both for descriptor 2(e) and

descriptor 3(f). For the reasons expressed in paragraph 14 above they should not have

awarded points for the latter descriptor. I exercise my discretion in favour of the Secretary of

State and set the tribunal’s decision aside on the basis of that error of law.

16. My decision expressed in paragraph 15 means that I do not require to decide on the

correctness of the submission made on behalf of the Secretary of State in paragraph 6 of

document 101 expressing a second ground of appeal. Had I required to deal with that

submission I would have rejected it on the ground that the tribunal’s finding of fact 13 was

within their province as the judges of fact to make. It was not irrational nor did it lack a

foundation in the evidence before the tribunal.

17. So far as the disposal of this appeal is concerned, I consider it expedient to remake

the tribunal’s decision on the basis of their findings of fact under section 12(2)(b)(ii) and

(4)(a) of the Tribunals Courts and Enforcement Act 2007. I hold, applying the approach laid

out in paragraphs 12 – 13 above, that the tribunal’s finding of fact 12 justifies an award for

descriptor 5(d) of the Daily Living Activities (“needs assistance to be able to manage toilet

needs”) in addition to the award made for descriptor 2(e). I do not consider such an award is

precluded by the maxim of statutory construction on which I rely in paragraph 14 above as

descriptor 5(d) is a specific provision and not a general one like descriptor 3(f). Thus, under

my decision given in substitution for that of the tribunal, the claimant receives a total of 10

points for daily living activities. Accordingly she is entitled to an award of the standard rate

of Personal Independence Payment for daily living activities. That award will run for two

years from her date of claim for the reasons which were appropriately given by the tribunal in

paragraph 7 of their reasons for decision.

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18. The appeal by the Secretary of State succeeds to a degree. The claimant receives

the award of Personal Independence Payment for daily living activities specified in my

decision rather than the one she received under the tribunal’s decision.

(Signed)

A J GAMBLE

Judge of the Upper Tribunal

Date: 9 February 2016