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PIP Activity 2
Where the claimant had 6 points and the upper tribunal finds that a further two descriptors of 2 points apply, what makes one rather than the other the decisive descriptor?
Because the UT found that descriptor 5b did, in fact, apply and so it set the decision aside and remade it on that basis.
In relation to activity 2, the Tribunal simply indicated that it might have set the decision aside on this basis but had it done so the case would have been remitted.
I would have agreed with you if this were a case where the UT had decided the case on the basis of a number of freestanding errors, but it didn’t.
FtTs should follow Judge Hemingway’s reasoning because it is plainly correct - whether or not it is binding as a matter of strict precedent.
Upper Tribunal disposing of this particular interpretation here:
https://www.gov.uk/administrative-appeals-tribunal-decisions/cw-v-secretary-of-state-for-work-and-pensions-pip-2022-ukut-281-aac
18. As I have touched on above, none of what the F-tT had to say, in my view, indicated that any different approach ought to be taken to the question of interpretation than one based on a straightforward reading of the words used. It seems to me that, once that simple and obvious approach is taken, it becomes clear that the definition has a number of components being the cutting of food, the conveying of it and drink to the mouth, the chewing (other than drink of course) and then the swallowing. Each one of them is an essential component of the overall task of taking nutrition. It is obvious, therefore, that if, for example, there is an inability to cut food into pieces, there is an inability to take nutrition. Thus, it would make no sense to say that there must be an inability to do all of the components set out in the definition. Further, an inability to cut food into pieces, convey food to the mouth, and then chew and swallow, would suggest a highly unusual and very extensive level of disability. It would be odd, therefore, if such was required simply to enable a claimant to score a mere 2 points under daily living descriptor 2b(i). Further still, a claimant who can take nutrition unaided satisfies daily living descriptor 2a and scores no points, a person who has to use an aid or appliance to be able to take nutrition scores 2 points under daily living descriptor 2b(i). If the definition adopted by the F-tT were to be correct it would mean a person unable to take nutrition through an inability to perform one of the components included in the definition would score no points despite not coming within the group of persons to whom daily living descriptor 2a applies. Thus, the interpretation would produce illogical consequences.
19. I have spent quite a lot of time on this. Some might say it is so obvious that an inability to perform one of the relevant elements of the definition without an aid or appliance leads to the scoring of 2 points under the relevant activity, that I should not have bothered. But it would be unfortunate if the interpretation taken by the F-tT in this case were to take hold and that claimants were to lose out as a result. So, I thought it right to clarify the position.
Cheers Elliot ... summary now here too:
... plus added to pipinfo: https://pipinfo.net/activities/taking-nutrition
Presumably if someone only needs prompting regularly to drink, but not to eat, this could also qualify for points under 2(d)? The DWP guidance correctly states that ‘taking nutrition’ refers to the act of eating and drinking but then only goes on to mention a need for prompting with eating for descriptor D.
I agree. The logic of CW v SSWP is that for a claimant to score 0 (ie descriptor 2(a)) they have to be able to do everything that falls within the “taking nutrition” definition without an aid or assistance, and that must include drink as well as food.
Yes, let’s not have this again. If you are not using a therapeutic source to take nutrition, then you are presumably going to need to both eat and drink. If you can only do one or the other, you are not “taking nutrition unaided” so you ought to get the relevant points.
Thanks guys, that was my understanding too. Strangely, I have two cases at the minute where prompting to drink, but not eat, is regularly required.