SOR - Reasons containing Hypothetical Situations

Hi

First time I’ve seen this in a SOR so I am unsure if this happens often and if their is any caselaw which I can use when appealing the decision to the UT (this isn’t my only reason for appealing).

When discussing the cl’s ability to prepare food it states that “cl would hypothetically be able to prepare food even if, in reality, he never would…”

They used this hypothetical test as the basis for not awarding our cl any points for preparing food - my argument is that they should be focused on what happens in reality and not some hypothetical situation that never has happened nor ever will.

The background for this cl with regards to preparing food is as followed: cl suffered a traumatic event as a toddler which resulted in him spilling boiling water on himself and almost ending his life. Obviously, this was extremely traumatic for himself as well as his parents, with his parents essentially banning him from entering the kitchen throughout his childhood. This carried on into adulthood with him unable to prepare any hot food/drinks at all (including not going into the kitchen when something is boiling/being cooked).

So is there any caselaw to support my argument that the tribunal panel should focus on the reality and not some hypothetical situation (besides me getting sarcastic by stating I could hypothetical jump out of a window and land feet first in a bin, doesn’t mean I’m a gymnast haha) or has anyone dealt with this issue successfully?

Side-point - the Tribunal panel (mainly the medical experts) were extremely rude to him during this conversation essentially stating that hes 63 now so should have “grown out of it” by now. Comment by one: “well why don’t you just try to do it”. I was unfortunately not in the appeal which is one of my main grounds for appeal.

Sorry for the long post!

Thanks

Adam

I don’t think this is quite on the money. The Tribunal is required to engage with a hypothetical by the very nature of the PIP tests. Preparing food in particular is rooted in a “simple meal” which is itself completely notional. Many people who are asked what actually happens may say that they only eat ready meals, or that for cultural reasons they prefer food which is more complicated to prepare etc - so just asking what the reality is would not address the descriptor. Similarly many people don’t wash or dress on a given day because they aren’t leaving the house so what’s the point - or don’t engage with anyone socially for reasons unconnected with the disability. You can’t just say that because it doesn’t actually happen, you get the points. Look at the DLA case Moyna and the PIP cases such as SC v SSWP (PIP) [2017] UKUT 317 (AAC) and others you can find on PIPinfo.

The potential problem with the quote, although it needs to be judged in context, is that it is a statement of conclusion. It’s not enough just to say that somebody hypothetically could prepare a meal, you would need to explain how that conclusion was reached i.e. what was the evidence either way, what did the tribunal make of it and how did they balance that evidence to reach the particular view that, in fact, he ought to be able to make a meal (even if he says that he can’t).

I do think it does need to be recognised that your client’s account i.e. that he is wholly unable at 63 to make a simple meal because of a traumatic experience as a toddler was always going to attract incredulity from a tribunal. I am not saying that it is impossible, but it is the sort of thing which when looked at from the outside causes raised eyebrows. I don’t know that he really has cause for complaint if the Tribunal were probing that particular point.

I would urge you to speak to CPAG for comprehensive expert advice on this and any other UT cases you are doing.
https://cpag.org.uk/welfare-rights/upper-tribunal-assistance-project

Thanks for the information as always.

It was mentioned as a conclusive statement without looking at the evidence - unfortunately, I was not in attendance so couldn’t raise the issue.

Thanks for giving me the link to CPAG, that will be very helpful.

If an activity isn’t being carried out there are two kinds of hypotheticals: what would happen if the claimant chose to try doing the activity, and what if their condition wasn’t stopping them? The first is the right question and the second isn’t. It seems the tribunal here would need to be clear they are looking at the first of these, and that what’s stopping him isn’t a mental health problem that persists from the incident.

Agree with what has been posted above re hypotheticals.

I think it is very important to distinguish between “I never learned to cook because I had an awful childhood accident and my parents never let me near the kitchen afterwards and they (or whoever) have always cooked for me ever since”  and “if I tried to learn to cook now I would be unable to do so/require prompting because the memories of the accident are so traumatic and enduring”. The former doesn’t score points. The latter (if the Tribunal is satisfied that it is consistent with the medical evidence) does.

As an additional suggestion if you were not in attendance you could request a copy of the judge’s record of the proceedings. The couple I’ve seen needed some intensive handwriting analysis (!) to de-cypher and they are not a verbatim record of exactly what was said but it might give you some additional info on exactly how the questioning unfolded.

Obviously it is difficult to really comment without the full background but I would respectfully disagree with Elliot in terms of your client’s account. Childhood burning/scalding incidents of the severity you allude to are likely not only to be extremely traumatic and painful experiences in themselves but may well also be the beginning of long periods in hospital receiving treatment for the injuries and may also result in significant physical scarring into adulthood. For my part as a layman it seems entirely possible that if this trauma was never addressed (and indeed may have been reinforced by his well meaning parents) the accident could have become ‘life-defining’, certainly in terms of his ability to cook. I do think it would be appropriate for the tribunal to question the client (if that evidence was not already before them in the papers) about what they had done/what treatment they have had to try and deal with the trauma and make progress with what is a pretty fundamental life skill. But I’m not sure I’d go as far as to say that his account merits ‘incredulity’ from a tribunal.

SamW - 25 June 2021 05:56 PM

Obviously it is difficult to really comment without the full background but I would respectfully disagree with Elliot in terms of your client’s account. Childhood burning/scalding incidents of the severity you allude to are likely not only to be extremely traumatic and painful experiences in themselves but may well also be the beginning of long periods in hospital receiving treatment for the injuries and may also result in significant physical scarring into adulthood. For my part as a layman it seems entirely possible that if this trauma was never addressed (and indeed may have been reinforced by his well meaning parents) the accident could have become ‘life-defining’, certainly in terms of his ability to cook. I do think it would be appropriate for the tribunal to question the client (if that evidence was not already before them in the papers) about what they had done/what treatment they have had to try and deal with the trauma and make progress with what is a pretty fundamental life skill. But I’m not sure I’d go as far as to say that his account merits ‘incredulity’ from a tribunal.

I should just make it entirely clear that I am not denying that it is possible for an experience like this to have this effect or questioning the account of this particular individual (who I know nothing about). I am just making the point that from a forensic point of view it is the sort of thing you would expect to be scrutinised fairly closely.