3.2. Application of PIP Regulations and Useful Case Law

Required Period

The “required period” over which the Appellant’s eligibility for PIP must be assessed is defined in the Regulations 12 and 13 of the PIP Regulations:

If the claimant had been assessed at every time in the period of 3 months ending with the prescribed date, it is likely that the Secretary of State would have determined at that time that the claimant had [limited or severely limited] ability to carry out [daily living or mobility] activities; and

If the claimant were to be assessed at every time in the period of 9 months beginning with the day after prescribed date, it is likely that the Secretary of State would determine at that time that the claimant had [limited or severely limited] ability to carry out [daily living or mobility] activities.

The “prescribed date” referred to the date of claim, and the regulations mirror the situation that was in place for DLA – that there is a qualifying period of three months before the claim and a prospective period of nine months after (for DLA the prospective test was shorter, only six months).

Fluctuating Conditions

Regulation 7 describes the test for whether a fluctuating symptom can be counted:

7(1) – The descriptor which applies to C in relation to each activity in the tables referred to in regulations 5 and 6 is:

where one descriptor is satisfied on over 50% of the days of the required period, that descriptor;
where two or more descriptors are each satisfied on over 50% of the days of the required period, the descriptor which scores the higher or highest number of points; and;
where no descriptor is satisfied on over 50% of the days of the required period but two or more descriptors (other than a descriptor which scores 0 points) are satisfied for periods which, when added together, amount to over 50% of the days of the required period
the descriptor which is satisfied for the greater or greatest proportion of days of the required period; or
where both or all descriptors are satisfied for the same proportion, the descriptor which scores the higher or highest number of points.

Furthermore, the question of how a descriptor may be satisfied on a given day has been clarified in an Upper Tribunal judgment as follows:

“for a descriptor to apply on a given day, the inability to perform the task or function must

be more than trifling and had to have some tangible impact upon a claimant’s daily

activity and functioning, but not more than that.”

Reliably

Regulation 4(2A) of the PIP regulations states that

“a claimant is to be assessed as satisfying a descriptor only if claimant can do so

safely;
to an acceptable standard;
repeatedly; and
within a reasonable time period.”

The terms are then defined in 4(4) as follows:

“safely” means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity;
“repeatedly” means as often as the activity being assessed is reasonably required to be completed; and
“reasonable time period” means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity.”

The definition of “safely” was further clarified in a recent Upper Tribunal case where it was held that

“An assessment that an activity cannot be carried out safely does not require that the occurrence of harm is “more likely than not”. In assessing whether a person can carry out an activity safely, a tribunal must consider whether there is a real possibility that cannot be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case. It follows that both the likelihood of the harm occurring and the severity of the consequences are relevant.”

Recent 2017 High Court Decision Reversing Mental Health Amendment to Regulations

There has been controversy regarding interpretation of several descriptors for Activity 1, Planning and Following Journeys, of the Mobility component. An UT decided on 28th November 2016 that the award of descriptors (c), (d) and (f) could be made to claimants whose inability would be caused by overwhelming psychological distress. In response, the Government introduced an amendment to the regulations in March 2017 to specifically exclude psychological distress from consideration for these descriptors. The amendment was challenged, and in Dec 2017 was ruled unlawful by the High Court,. The Government has confirmed they will not appeal the decision, and will undertake a review of all claims that could be affected. Going forward, mental ill health can be considered on an equal basis with physical conditions with respect to Planning and Following Journeys.

Other Useful Case Law

Social support can be provided by friends and family [CPIP/3603/2015]
- Confirmed “‘social support’ means support from a person trained or experienced in assisting people to engage in social situations” and further that experience can constitute “people such as friends and family who know the individual well and can offer support.”
Function should be considered with reference to a general standard – adaptations made for disability cannot be held against claimants [UK/5338/2014] and [CPIP/2306/2015]
- Dressing and undressing – can neither rely on problems with particularly fiddly items of clothing, nor can be penalised for only wearing very simple clothing without regular fastenings, “That approach would prevent claimants from generating their own entitlement while not allowing their own disability to be used against them.”
- “it is important that the extent of a person’s disability is captured in the context of normal daily life and not a sheltered version of it that the disabled person has imposed upon themselves to make their life easier”
Claimant may be able to establish a need for prompting, even if they can sometimes perform tasks when there is an impetus to do so. [CPIP/181/2016]
- “The mere fact that a claimant might be sufficiently motivated to perform a task when there is a specific or unusual impetus to do so does not, of itself, inform as to the overall position and the generality of the situation.”

3.1. PIP Regulations and Commentary