Taking nutrition

So a well known north east judge has ruled in my SOR that needing modified cutlery will not score for activity 2.

Definition of taking nutrition is cutting up food, conveying food to mouth, chewing and swallowing….

He states that all above activities must be an issue, and as my client can put food in his mouth, chew it and swallow it after he’s cut it up with modified cutlery then he doesn’t score….

I asked him at the hearing why modified cutlery as an aid is mentioned on PIP2 form. His attitude is that its not his problem if the secretary of state misdirects itself regarding the descriptor test.

it was pointed out that in his world nobody would score for this, and his reply was “PIP was bought out by parliament to reduce costs. Tribunal has to apply the definition as defined by parliament…tight definition is justified on the purpose of intent behind the legislation”

So he’s using his own mental gymnastics to go out of his way of awarding anything, on the basis of saving the taxpayer money? 

Thoughts????

my only thought is “WOW!!” Blind justice, or just Blindly unjust…..shoe in at UT of course

Looks like the PIP assessment guide for providers is going to need editing too:

Descriptor B (2 points): Needs:
i. to use an aid or appliance to be able to take nutrition; or
ii. supervision to be able to take nutrition; or
iii. assistance to be able to cut up food
Applies to claimants who need to use specially adapted cutlery; claimants who are at significant risk of choking when taking nutrition; claimants who regularly spill food due to tremors or other factors and claimants who have difficulty cutting up food which is ready to be eaten (not raw ingredients as these are considered in activity 1).

This is an argument which was introduced by a judge in relation to activity 5 in the case GW v SSWP (PIP) [2015] UKUT 570 (AAC) where it was rejected by the UT. It was then rejected again in the case JM v SSWP (PIP) [2016] UKUT 296 (AAC). It has now been resurrected in relation to activity 2 in various directions notices and decisions.

As I understand it, it is now being asserted that the reasoning of JM can be distinguished because activity 2 uses commas, whereas activity 5 uses semi-colons. It is not clear to me what the reasons are for distinguishing GW - all of the reasons given for rejecting the argument there seem equally applicable.

I am reluctant to say much more as this is very much a live issue in some of my cases, however you will be doing a public service to get it to the UT sharpish.