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SE v SSWP (PIP) (Final decision) [2021] UKUT 79 (AAC)
1
IN THE UPPER TRIBUNAL Appeal No. CPIP/1653/2019
ADMINISTRATIVE APPEALS CHAMBER
On appeal from First-tier Tribunal (Social Entitlement Chamber)
Between:
SE
Appellant
- v
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Ward
Decision on papers: 22 March 2021
Representation:
Appellant:
Mrs Catherine Morris, support worker
Respondent:
Government Legal Service
DECISION
By an interim decision dated 5 January 2021 - SE v SSWP (PIP) [2021] UKUT 1
(AAC) - the decision of the First-tier Tribunal made on 11 January 2019 under
number SC065/18/00189 was set aside. The decision is now remade in the following
terms:
The appell
ant's appeal against the decision
dated 28 October 2017 is allowed to the
following extent:
The appellant is entitled to the enhanced rate of the daily living component
from 17 August 2017 indefinitely. She scores (at least) 14 points.
She is not entitled to any rate of the mobility component on and from 17
August 2017. She scores 0 points.
REASONS FOR DECISION
1. The interim decision of 5 January 2021 included directions for the filing of evidence
to enable the Upper Tribunal to remake the decision.
2. On 6 February a witness statement was submitted by Mrs Morris on behalf of the
appellant. Mrs Morris trained and worked as a special needs teacher before working
as a debt advisor and now as a support worker. She provides evidence based on
SE v SSWP (PIP) (Final decision) [2021]
UKUT 79 (AAC)
Case no: CPIP/1653/2019
2
having regularly supported the appellant for more than four years and it is evident
that her professional background clothes her observations with additional authority.
3. On 25 February the respondent submitted a witness statement by Dr Emily Tucker.
Dr Tucker has for some 6 years held the post of Medical Policy Advisor for Personal
Independence Payment in the Department for Work and Pensions.
4. I am grateful to both Mrs Morris and Dr Tucker for the considerable care and
thoroughness with which their respective witness statements have been prepared.
5. The interpretation of Activity 8 (reading and understanding signs, sounds and
words) and Activity 10 (Making budgeting decisions) was addressed in the interim
decision, to which reference should be made as necessary. In particular, it ruled that
a person would qualify for the respective highest-scoring descriptors, which are in the
form "Cannot [do X] at all" if they were unable to accomplish what was involved in the
next highest-scoring descriptor.
6. Dr Tucker, having conducted a review of all the available evidence, gives her
clinical opinion that the difficulties described by Mrs Morris are consistent with the
appellant's
reported medical conditions and with the psychological assessment which
was in evidence. She concludes that the appellan
t's
ability to carry out activities 8
and 10 is likely to be significantly impaired to the extent that she cannot read or
understand signs, symbols or words at all and cannot make any budgeting decisions
at all.
7. The evidence before the FtT included the PIP2 Questionnaire, the PA4 report of
assessment by the Health Care Professional (which, as Dr Tucker notes, did not
include performing any simple tests of cognition), the psychological assessment
carried out in late 2011 in connection with other matters, a submission containing
evidence from Mrs Morris and oral evidence given at the hearing.
8. The Upper Tribunal now has the two witness statements referred to above. The
respondent has also helpfully provided the Upper Tribunal with reports of the last
three assessments of the appellant for employment and support allowance
("ESA")
purposes. These were quite telling. In 2015, for example, the appellant was
observed to need prompting at interview, to have very poor concentration on
examination and impaired short-term memory. She was unable to complete five
rounds
of "serial sevens"
(designed to test concentration, memory and thinking), was
unable to calculate the correct change from £1 when spending 75p, could only follow
one stage commands and was unable t
o spell "world" back
wards. She was found to
have limited capability for work-related activity
("LCWRA")
because of the
combination of learning disabilities and vulnerability alongside her anxiety. In 2018
the assessment was curtailed due the
appellant'
s mental health state and she was
again found to have LCWRA. In 2019 she was again recorded as unable to do the
simple cognitive tests used as part of an examination for ESA. The assessor
accepted her learning difficulties and other issues and again found her to have
LCWRA. Bearing in mind that ESA (and the equivalent provisions in relation to
universal credit) examine a number of activities testing mental, cognitive and
intellectual function (and accordingly, simple cognitive tests generally form part of the
assessment), it is entirely possible that an assessment carried out for the purposes of
SE v SSWP (PIP) (Final decision) [2021]
UKUT 79 (AAC)
Case no: CPIP/1653/2019
3
the work capability assessment will yield useful evidence in the context of assessing
whether people with learning disabilities can score points under activities 8 and/or 10
for PIP, even though the activities under the two benefits are different. Both claimant
representatives and the Secretary of State in the exercise of her responsibilities
under rule 24(4) of the FtT rules to proved
"all
documents relevant to the case in the
decision make
r's
possession" may need to bear t
his in mind.
9. I find the following facts:
a. the
appellant's
full-scale IQ is 72. Generalised learning disability is usually
accepted to be an IQ of 70 or less. However, the appellant performed
particularly poorly in certain sub-tests;
b. she also has anxiety and depression, to a significant degree;
c. she is not lacking motivation to read;
d. she can read only a few basic words, typically short words rather than those
which impart meaningful content;
e. she cannot read dates;
f. she is unable to read a sign (such as an exit sign) although she may be able
to recognise and know what it is from its appearance (green) or location and
context (over a door);
g. she knows the names of letters but either does not know or is unable to use
the phonetic sounds and has no word building skills. Thus, she lacks the skills
to work out what an unknown word may say and no amount of encouraging or
explaining makes any material difference;
h. she cannot reliably calculate the cost of goods unless there are only two
items and they are uncommonly easy to add together, such as £1 and 50p.
Her ability to work out how much money she has in her purse is similarly
restricted;
i. she is unable to process more than one bit of information;
j. when shopping she may find at the checkout that she not have enough
money to pay for all the items she has selected. She needs the help of a
friendly shop assistant to select items from her basket to put back so she can
afford the purchase;
k. she cannot calculate change and so does not check it;
l. she is unable to take decisions based on calculating the cost of goods and
could not take such a decision even if she had been helped with the
calculation and no amount of encouraging or explaining would make any
material difference; and
SE v SSWP (PIP) (Final decision) [2021]
UKUT 79 (AAC)
Case no: CPIP/1653/2019
4
m. there is no reliable evidence to suggest that her lack of ability to read and
to do simple calculations is due to lack of education.
10.
I accept Dr Tucker's
clinical view, which with the findings above is enough to
result in the award of 14 points for the daily living component. Mrs Morris questions
whether in fact there may have been other activities for which the appellant ought to
have scored points but recognises that they are not what this case concerns. Since
the points scored by the appellant exceed the 12 point threshold for the enhanced
rate and her condition which causes this is unlikely to improve significantly, it is
unnecessary and disproportionate for me to say anything about any of the other
activities.
11. Dr Tucker observes that given that the
appellant's
medical conditions are long-
standing and unlikely to improve significantly, a longer-term award would in her view
be "clinically appropriate"
. Under Welfare Reform Act 2012, s.88(3) an award is to be
for a fixed term except where the person making the award considers that a fixed-
term award would be inappropriate. Section 88(3) creates a duty when deciding
whether a fixed-term award would be inappropriate to have regard to guidance
issued by the Secretary of State. What purports to be the guidance under that
section is
contained in the "Advice for
Decision
Makers"
beginning at paragraph
P2061. Whether that is an appropriate or helpful place for statutory guidance is not a
matter on which I have received any submission and so I do not dwell on it. It
provides:
"
Where following an assessment consultation, it is considered that the
claimant has
1. a level of functional ability which is not likely to change in the long-term or
2. high levels of functional impairment which are only likely to increase
a fixed term award will be inappropriate and an on-going award with a PIP
Award Review date after 10 years will be applicable.
"
Item 1 above was also identified in RS v SSWP [2016] UKUT 85 as pointing towards
an indefinite award, while the ability of the Secretary of State, even if an indefinite
award is made, to revisit it through the process of supersession was noted.
12. Having regard to the Guidance and existing caselaw concerning these matters I
conclude in the circumstances of the appellant and the nature of her disability that a
fixed term award is, indeed, inappropriate, and so I make an indefinite one.
C.G.Ward
Judge of the Upper Tribunal
Signed on original 22 March 2021
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