Upper Tribunal Rejects Appeal Over PIP Assessment

[2016] UKUT 573 ([NAME])

LS v SSWP (PIP)

CPIP/2346/2016 1 IN THE UPPER TRIBUNAL

Case No. CPIP/2346/2016

ADMINISTRATIVE APPEALS CHAMBER

DECISION

1. The claimant’s appeal is dismissed.

REASONS FOR DECISION

Background to the appeal 2. The claimant is a [NAME] who suffers from osteoarthritis and depression. She received a diagnosis of a prolapsed womb some years ago but in 2015 a gynaecologist informed her that this was not so. She stated that she had urgency in having to urinate and sometimes wetted herself before she reached the toilet. She also complained that she had sciatica/nerve damage to her spine, was 75% riddled with arthritis and was in constant pain. On 9 June 2015 the claimant signed the application form (“PIP form”) for the Personal Independence Payment (“PIP”). She stated that she had problems with the PIP descriptors of preparing food, managing therapy or monitoring a health condition, washing and bathing, managing her toilet needs, dressing and undressing, engaging with other people face to face, planning and following journeys and moving around.

3. The claimant was assessed by a Health Care Professional (“HCP”) nurse on 28 August 2015. Following that assessment a decision maker decided on 10 September 2015 that the claimant did not qualify for an award of PIP. The decision maker awarded the claimant 2 points in respect of the preparing food descriptor, 2 points in respect of the washing and bathing descriptor and 2 points in respect of the dressing and undressing descriptor of the daily living descriptors. The total score being 6 points meant that the claimant did not qualify for the daily living component of PIP which requires a score of between 8 and 11 points. The decision maker did not award any points in relation to the PIP mobility descriptors. The claimant requested a mandatory

[2016] UKUT 573 ([NAME])

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CPIP/2346/2016 2 review of that decision. On 29 October 2015 the decision was reviewed but not revised. The claimant appealed to the First-tier Tribunal (“FTT”).

4. On 10 March 2016 [NAME] confirmed the decision of 10 September 2015 and dismissed the claimant’s appeal.

Appeal to the Upper Tribunal 5. The claimant appealed against the decision of [NAME] with the permission of the Upper Tribunal Judge given on 15 August 2016. Her grounds of appeal are set out in her application for permission to appeal and notice of appeal, signed by her on 29 July 2016. The grounds are set out on three typewritten pages prepared by her representative, [NAME]. Her grounds of appeal are that [NAME] erred in law as follows:

(1) [NAME] did not take into account the interaction between the underlying assessment criteria in their assessment of Mobility Activity 2 or did not adequately explain their reasoning.

(2) [NAME]’s findings regarding mental health did not appear to be based on clear findings of facts relating to the appropriate test.

(3) [NAME] used the wrong test to consider social engagement.

(4) [NAME]’s charges of contradiction and dependability of evidence are not substantiated.

6. The Secretary of State does not support this appeal. In submissions, dated 4 October 2016, it is submitted, on the Secretary of State’s behalf, that:

(1) The claimant met the criteria set by Regulation 4(2A)(d) in relation to mobility activity 2 and [NAME] adequately explained their reasoning.

[2016] UKUT 573 ([NAME])

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CPIP/2346/2016 3 (2) [NAME] made clear findings regarding the claimant’s mental health.

(3) [NAME] found that the claimant could engage with other people and gave adequate findings of fact and sufficient reasons to conclude that she did not score points in relation to the social engagement activity.

(4) [NAME] found that the claimant’s evidence was overall inconsistent and unreliable and gave adequate reasons for this.

7. On 20 October 2016 the claimant’s representative submitted Observations on the claimant’s behalf, in which it stated it made no further comments other than those set out in the permission to appeal. I will address the claimant’s four grounds of appeal in turn.

Ground 1: Mobility Activity 2: Moving Around 8. The claimant’s representative submitted that [NAME] failed to make clear their findings in relation to the criteria set out in Regulation 4(2A)(d) of the Social Security (Personal Independence Payment) Regulations 2013 (“[NAME]”) or failed to give adequate reasons in relation to those criteria.

9. Regulation 4(2A) of the [NAME] states: “Where C’s [a claimant] ability to carry out an activity is assessed, C is to be assessed as satisfying a descriptor only if C can do so – (a) safely; (b) to an acceptable standard; (c) repeatedly; and (d) within a reasonable time period.”

10. The claimant’s representative drew attention to Regulation 4(4) of the [NAME] which defines “a reasonable time period” for these purposes as meaning: “no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s

[2016] UKUT 573 ([NAME])

LS v SSWP (PIP)

CPIP/2346/2016 4 ability to carry out the activity in question would normally take to complete that activity.”

The claimant’s representative submits that it appears from [NAME]’s comments at paragraph 70 of their statement of reasons (“SOR”) for their decision that they accepted that journeys take at least twice as long for the claimant as other people, but that it was not clear whether they concluded that she could walk the distance in exactly twice the length of time or that she must be able to reach 200 metres.

11. [NAME] set out in [NAME] that they were basing their decision on the claimant’s ability to carry out the mobility activities by considering what she could do safely, to an acceptable standard, repeatedly and within a reasonable time period in accordance with Regulation 4 of the [NAME], so they were addressing the correct criteria (see paragraphs 9 and 61 of [NAME]). [NAME] considered the claimant’s evidence that she was able to walk to [NAME]’s [COMPANY] and stated at paragraph 70 of [NAME]: “When she does undertake the walk herself it takes her approximately 10 minutes, again a journey that would take another person five minutes. Even on this evidence, it is clear that the Appellant can walk in excess of 200 metres, such a finding would certainly be consistent with her medical conditions, pain relieving medication and lack of specialist intervention.” [NAME] also noted at paragraph 67 of [NAME] that the claimant went to her local shop for essentials and she had stated that the “five minute walk for an average person takes her approximately ten minutes and she would just stop once for a minute”. This evidence was also supported by the claimant’s daughter’s oral evidence to [NAME] that walking to [COMPANY] would take her 5 minutes but would take the claimant 10 minutes (see page 136 of the bundle).

12. It appears that [NAME] did consider the claimant’s ability to move around according to the criteria in Regulation 4(2A) and 4(4) of the [NAME] and regarded her walking speed to be twice as long as an average person’s walking speed. It seems to me that from the tenor of [NAME]’s wording in the first sentence of paragraph 70 that they did find that when the claimant does a walk

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CPIP/2346/2016 5 of 10 minutes, that journey would take another person 5 minutes and, thus, it took her twice as long. Even if it were arguable that [NAME] did not make their findings of fact to that effect fully clear, I agree with the Secretary of State’s submission that the claimant confirmed though her own admissions in evidence that her walking speed was twice as long as an average person’s walking speed, and thus, she did not take more than twice as long as the maximum period that a person without a physical or mental condition may take to walk the same distance.

13. It is also contended, on the claimant’s behalf, that [NAME] made no clear findings as to whether she could manage such a walk repeatedly within the meaning of Regulation 4(4) of the [NAME] which defines “repeatedly” for these purposes as follows: “ as often as the activity being assessed is reasonably required to be completed.” It is submitted that [NAME] failed to consider whether the claimant could repeatedly stand and then move more than 200 metres, either aided or unaided.

14. [NAME] expressly stated in their SOR that they based their decision on the claimant’s ability to carry out the mobility activities by considering what she could do repeatedly and within a reasonable time period in accordance with Regulation 4 of the [NAME]. [NAME] decided that the claimant did not score any points for any of the mobility activities set out in Part 3 of Schedule 1 of the [NAME]. [NAME] found that the claimant could stand and then move more than 200 metres, either aided or unaided and, thus, fell within descriptor 2(a) of the moving around activity and scored no points. [NAME] did made findings of fact which supported that conclusion (see, for example, paragraphs 63, 67 and 69 of [NAME]). [NAME] noted that there was no specialist involvement in terms of orthopaedic, rheumatology, musculoskeletal or neurology as far as the claimant was concerned (see paragraph 65 of [NAME]). [NAME] had stated earlier in [NAME] that no significant restrictions regarding her spine and lower limbs were identified in the HCP’s examination other than “slight spinal restrictions and left lower limb flexion” and that she had “moderate pain medication” (see paragraph 21 of [NAME]). There was no

[2016] UKUT 573 ([NAME])

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CPIP/2346/2016 6 medical report before [NAME] other than the report by the HCP. Indeed, the only medical papers submitted by the claimant consisted of notification of a hospital appointment on 27 April 2016 for a [NAME].

15. Looking at [NAME]’s decision as a whole it is apparent that [NAME] considered that the claimant did not qualify for any points on the mobility activities on the basis of evidence before them and, thus, that she was capable of standing and then moving more than 200 metres. They considered the degree of pain she complained of in relation to the moderate pain medication she was taking and also in relation to the lack of ongoing medical treatment or intervention regarding her mobility. I agree with the Secretary of State’s submission that it followed from [NAME]’s conclusion on the moving around activity, that they did not accept that she could not meet descriptor 2 (a) repeatedly within the meaning of Regulation 4(4) of the [NAME].

16. I hold that [NAME] gave adequate reasons for reaching their decision on moving around based on the evidence of the HCP, which they accepted, and their assessment of the claimant’s evidence and other evidence.

Ground 2: [NAME]’s findings regarding mental health did not appear to be based on clear findings of facts 17. There was no psychiatric or psychological report before [NAME] regarding the claimant’s mental health. The only medical evidence before [NAME] was the report of the HCP who made no abnormal findings regarding the claimant’s mental health and reported that she had no regular mental health support. The HCP regarded the claimant as having a low dose anti depressant medication (see page 91 of the bundle).

18. I hold that [NAME] made adequate findings of fact regarding the claimant’s mental health. [NAME] accepted that the claimant suffered from depression (see Decision Notice at page 139 of the bundle). [NAME] noted in their SOR that she “describes her depression as now being under control: it is dealt with by her GP only.” They made a finding that she takes a very low dose of anti- depressant medication namely Citalopram 10mg per day (see paragraph 18 of

[2016] UKUT 573 ([NAME])

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CPIP/2346/2016 7 [NAME]). [NAME] found it “clear” that the claimant “could on a regular basis undertake the usual activities of any other person”. In particular, they pointed out that the claimant was responsible for the full time care of her six [NAME] old [NAME] who had been placed with her by [COMPANY] since birth and that [COMPANY] had no ongoing involvement either in a monitoring or supporting capacity (see paragraph 71 of [NAME]).

19. It is submitted, on the claimant’s behalf, that [NAME] failed in its inquisitorial duty in not investigating her mental health further. Having read the notes of the record of proceedings, it is apparent that [NAME] questioned the claimant about her depression and panic attacks (see pages 128 to 130). I do not find that [NAME] erred in this regard.

Ground 3: [NAME] used the wrong test to consider social engagement. 20. The claimant’s third ground relates to Activity 9 “Engaging with other people face to face” and the descriptors thereunder.

21. [NAME] found that the claimant satisfied descriptor 9(a) in that she could engage with other people unaided and, thus, awarded no points as zero points are scored for coming within descriptor 9(a).

22. It is submitted, on the claimant’s behalf, that the appropriate test that [NAME] should have applied is similar to the test for social engagement in Employment and Support Allowance (“ESA”) and relied on the three judge panel decision in JC v Secretary of State for Work and Pensions (ESA) [2014] UKUT 352, (also reported as [2015] AACR6) which stated in relation to the social engagement descriptor for ESA that “social engagement involved a degree of reciprocity, give and take, initiation and response”. It is contended that there was no evidence adduced by [NAME] that the claimant’s interaction included reciprocity, give and take or initiation in conversation.

23. Further, it is submitted, on the claimant’s behalf, that the appropriate test went beyond this and also encompassed:

(i) the milieu in which action takes place,

[2016] UKUT 573 ([NAME])

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CPIP/2346/2016 8 (ii) interpretation of body language and (iii) the (longer term) ability to establish relations. It is suggested that [NAME] did not determine these factors examining only interaction of a verbal nature in a few limited contexts and did not consider the claimant’s ability to make and develop friendships.

24. There is no definition of “engaging with other people face to face” in the [NAME]. There is, however, a definition of “engage socially” in Part 1 of Schedule 1 for the purposes of Schedule 1 to the [NAME] which includes Activity 9 in Part 2 of Schedule 1. The definition of “engage socially” is not in the same terms as the test suggested by the claimant’s representative in the preceding paragraph. “Engage socially” in paragraph 1 of Part 1 of Schedule 1 is defined as meaning: “ (a) interact with others in a contextually and socially appropriate manner; (b) understand body language; and (c) establish relationships”.

25. Although the words “engage socially” do not appear under Activity 9 or its descriptors, the definition in Part 1 of Schedule 1 of the [NAME] may serve to identify factors that may be involved in measuring a claimant’s ability to “engage” effectively within the meaning of the different descriptors under Activity 9 (see AM v Secretary of State for Work and Pensions (PIP)[2015] UKUT 215). It appears to me that a FTT has to assess whether the claimant meets any of the criteria set out in the different descriptors under Activity 9 and that they did not have to consider the criteria under the ESA descriptors of coping with social engagement which are differently worded to the PIP ones. The claimant’s representative relies on the three judge panel’s decision in JC v Secretary of State for Work and Pensions (ESA) (supra) which was based on the ESA descriptors and did not purport to comment on the PIP descriptors. In any event, there is no evidence that [NAME] were making their assessment according to the ESA descriptors. The claimant’s representative also suggested that [NAME] should have considered the claimant’s ability to make and develop friendships. It seems to me that the PIP descriptors under Activity 9

[2016] UKUT 573 ([NAME])

LS v SSWP (PIP)

CPIP/2346/2016 9 and the definition in paragraph 1 do not require it to be shown that a claimant can establish and develop friendships. It appears to me to be sufficient that a claimant is able to establish relationships of some kind with others in a contextually appropriate and socially appropriate way.

26. I hold that [NAME] made adequate findings of fact and gave sufficient reasons for concluding that the claimant could engage with other people unaided within the meaning of descriptor 9(a). [NAME] found that the claimant was observed to cope well and behaved normally at the medical assessment with the HCP. They found that she coped very well at the oral hearing although they noted that she became very distressed when talking about biopsy results for a lump in her bladder which were due the following week (see paragraph 50 of [NAME]). [NAME] commented that that reaction would seem to be entirely reasonable for any individual. [NAME] pointed to other evidence which supported their choice of descriptor 9(a), for example, that the claimant could, on occasions, take [NAME] to [COMPANY] and described a friend at [COMPANY], with whom she could talk, and how she met “lots of the parents at the [COMPANY] over the years” (see paragraph 54 of [NAME]) and that she explained to the HCP that she enjoyed spending time with her family and had a friend who popped in (see paragraph 49 of [NAME]).

27. [NAME] concluded that, other than the external factors (which related to difficulties, such as police involvement with her son), which would cause difficulties for anybody, the claimant “does not have difficulties mixing with people that could result in an award of points under this activity”. [NAME] accepted the HCP’s evidence that she could engage with other people unaided and there was no other expert medical, psychiatric or psychological evidence indicating otherwise. In these circumstances I do not consider that [NAME] erred in law in relation to their consideration of Activity 9 and their finding that she scored no points in relation to the relevant descriptor.

[2016] UKUT 573 ([NAME])

LS v SSWP (PIP)

CPIP/2346/2016 10

Ground 4: [NAME]’s charges of contradiction and dependability of evidence are not substantiated 28. It is submitted, on the claimant’s behalf, that if [NAME] found the claimant’s evidence untrustworthy, they should have substantiated this by way of reasons with more particularity.

29. [NAME] reached a clear conclusion in paragraph 71 of [NAME] that the claimant’s evidence was “overall, inconsistent and unreliable.” I hold that they did give adequate reasons for reaching this conclusion. I will refer to some examples of [NAME] pointing out inconsistencies and lack of reliability in the subparagraphs below:

(1) [NAME] reached the above conclusion after pointing out the contradiction in the claimant’s evidence of her never having a good day and, on the other hand, being able to undertake usual activities. [NAME] stated: “Essentially on the Appellant’s evidence, it is said that she will never have a good day and there is no fluctuation in her condition, but when this was explored further with the Appellant, it is clear that the Appellant can, on a regular basis, undertake the usual activities of any other person, in particular she has the full time care and responsibility of her six [NAME] old [NAME].” (see paragraph 71 of [NAME]).

(2) [NAME] pointed out that the claimant claimed that she needed help from another person to take medication and explained that her granddaughter helped her with medication, so she did not forget to take tablets as she was taking too many (see the PIP form at page 36 of the bundle and the HCP report at page 75). However, the HCP identified no cognitive restrictions on the claimant’s part and that she was able to recall the frequency with which she took her medication and the dosages. [NAME] pointed out that at the oral hearing the claimant “was not able to give a consistent account of who was responsible for

[2016] UKUT 573 ([NAME])

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CPIP/2346/2016 11 her medication when he [sic] granddaughter was not there (see paragraph 26 of [NAME]).

(3) [NAME] recorded what the claimant stated about her difficulties with washing herself. In particular, she maintained that she could only wash her upper half and that she could hardly bend over. [NAME] found that “the extent of disability was not borne out by the medical condition or in particular the lack of specialist involvement. It was noted that she was prescribed a standard dose of paracetamol and no anti- inflammatory medication”. [NAME] found that, with the use of an aid, she would be able to undertake this activity and considered an award of only 2 points for the washing and bathing descriptor was appropriate (see paragraph 34 of [NAME]).

(4) [NAME] considered the claimant’s evidence in support of her toilet needs and incontinence and made no award in relation to any of the descriptors relating to that. [NAME] asked the claimant about incontinence pads. She said that she would buy pads from her local chemist but they were costly and caused her to be sore. [NAME] recorded at paragraph 39 of [NAME] that “When asked whether she had spoken to her GP about this, she tried to divert the question on the basis that she was not getting any help from him. She went on to say that she was getting more help from hospital but then had to concede that they had not seen fit to prescribe incontinence pads either.”

30. When considering the reliability of the claimant’s evidence [NAME] were entitled to take into account the fact that the claimant had not provided any medical reports and that she did not have any aids or adaptations to her home. [NAME] stated that there was no specialist involvement in terms of orthopaedic, rheumatology, musculoskeletal or neurology (see paragraph 16 and 65 of [NAME]). They accepted the HCP’s evidence that no significant restrictions were identified in the clinical examination of the claimant other than slight spinal restrictions and left lower limb flexion (see paragraph 21 of [NAME]) and her only being able to reach both arms to her lower back (see

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CPIP/2346/2016 12 paragraph 33 of [NAME]). They also accepted the HCP’s report of the claimant having no cognitive restrictions and no current mental health intervention other than a low dose of anti-depressant (see paragraph 25 of [NAME]). [NAME] were entitled to prefer the HCP’s evidence to that of the claimant for the reasons that they gave in [NAME].

31. I hold that it has not been shown that [NAME] erred in law in regard to their assessment of the claimant’s credibility. They had the opportunity to see and hear from the claimant in person and have weighed up the evidence before them. The issue of credibility is a matter for the Tribunal as explained in paragraph 52 of the decision in CIS/4022/2007. I hold that [NAME] reached a decision that they were entitled to reach on the evidence and have given adequate reasons for it.

(signed on the original)

[NAME]

Judge of the Upper Tribunal

Dated 2 December 2016