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PIP Activity 2

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AYoung
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Hi,

Under PIP activity 2, the definition of taking nutrition is listed as:

take nutrition” means - (a) cut food into pieces, convey food and drink to one’s mouth and chew and swallow food and drink;

Is it correct that this needs to be read as a complete sentence and that in order to score points, the client would need to have difficulty with, or need support with cutting up food AND conveying it to their mouth AND chewing and swallowing?

OR

Can it just be one of the above.

We have a Judge who is very keen to point out that it is a complete sentence but i cannot find any caselaw to back it up either way.

thanks

Vonny
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https://www.rightsnet.org.uk/welfare-rights/caselaw/item/defintion-of-taking-nutrition-in-activity-2-and-in-context-of-consuming-food-in-liquid-form-to-avoid-swallowing-difficulties-relevance-of-pain-and-discomfort-when-assessing-completing-a-t

would that help, only read summary so would need to read full decision

Logically it should mean any of them because if without assistance you cannot chop up food you cannot convey it to your mouth, if you cannot convey it to your mouth you have nothing to chew or swallow and if you cannot chew and swallow no nutrition is taken.

Va1der
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What exactly is the judge saying?

I don’t have any caselaw for you, but I don’t see how the judge can take such a view. The actions involved in eating necessarily have to be completed in order, and failing one means you can’t progress to the next stage.
If it was the intention, they could have just specified chewing as the determining issue, or any ONE of the other actions.
Most of the caselaw on the activity will deal with aspects of eating, such as what counts as an aid for cutting up food - if nothing else that strongly implies failing one aspect of eating is sufficient - otherwise why would the judge even have entertained the idea?

Having failed to cut up a chicken breast, are you supposed to stuff the whole thing into your mouth?

Elliot Kent
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There is another recent thread discussing this issue. It is an important point which needs to be resolved in the North East.

As you note, the regs provide:

“take nutrition” means – (a)cut food into pieces, convey food and drink to one’s mouth and chew and swallow food and drink”

The Judge in question, I believe, is of the view that this constitutes a ‘complete test’ so that one would need to have difficulty in all three aspects of the activity. In other words, to get the points for requiring an aid to take nutrition, I would need to need an aid to cut food into pieces AND an aid to convey the food to my mouth AND an aid to chew and swallow food and drink.

No single aid exists, to my knowledge, which would assist with all three aspects of that test, so functionally the Judge’s ruling makes descriptors 2(b)(i) and (ii) (and to a lesser extent 2d) virtually impossible to score.

It is relevant to note that this is not a new argument. A North East Judge made the same ruling in another case - GW v SSWP (PIP) [2015] UKUT 570 (AAC) - except that this time it was related to activity 5 rather than activity 2. The Upper Tribunal rejected the interpretation put forward by the Judge in that case stating:

12. Before I turn to the second ground upon which I gave permission to appeal I will make some observations on the reasons given by the District Tribunal Judge when refusing the claimant permission to appeal to the Upper Tribunal.  He explained his refusal in the following way:
“The definition of toilet needs is ‘getting on and off an unadapted toilet; evacuating the bladder and bowel; and cleaning oneself afterwards.’  This is a complete test.  All the elements have to be satisfied.  The tribunal did not err in law by refusing to award points because it is clear from the evidence this test was not met.”

13. I do not agree with this analysis.  The word “and” may be used in legislation both disjunctively and conjunctively.  It must be interpreted within its own particular context.  I adopt a purposive approach to the construction of the definition of “toilet needs.”  Only a moment’s reflection would lead one to see that if all three parts of the definition were required to be satisfied very few people would meet the criteria of descriptors 5(b), (c) or (d).  Bearing in mind the level of points scored for those descriptors that would be surprising indeed.  I am of the view that the word “and” must be given a disjunctive effect in this context.

14. I am satisfied that this approach is consistent with the legislative intention.  Descriptor 5(b) refers to the need to use “an” aid or appliance to be able to manage toilet needs or incontinence.  I struggle to imagine any single aid or appliance which would enable a person to manage getting on and off an unadapted toilet, evacuating the bladder and bowel, and cleaning themselves afterwards.

15. My interpretation is fortified by the Department’s PIP Assessment Guide which, I acknowledge, is of persuasive value only.  It states that, in the context of descriptor 5(b), “suitable aids could include commodes, raised toilet seats, bottom wipers, incontinence pads or a stoma bag.”  On the face of it, each of these would assist only one of the functions listed in the definition of “toilet needs.”  Further, the Guide declares that descriptor 5(d) “only refers to claimants who require assistance to get on and off the toilet and/or to clean themselves afterwards…” (my emphasis).

[...]
17. For the reasons set out above, in my judgment a claimant will have the requisite “toilet needs” if he or she satisfies one or more of the three elements of the definition.

That approach was endorsed in PA v SSWP (PIP) [2016] UKUT 296 (AAC).

It might be thought that the conclusions in respect of activity 5 in these cases are equally applicable to and determinative of the argument in relation to activity 2. As I understand it however, the Judge has indicated that they believe that the cases can be distinguished because activity 2 uses commas and activity 5 uses semicolons.

I have made submissions in these cases to the effect that:

(1) The natural reading of the phrase “to take nutrition” when divided into composite sub-activities is that one who cannot complete one of the sub-activities unaided also cannot complete the activity unaided. It is a nonsense to say that only someone who can complete one or two of the sub-activities unaided but not the other is still properly described as able to take nutrition unaided.

(2) As in GW we are concerned with a situation where there is no single aid which can assist with the whole activity. where a ‘moment’s reflection’ would show that the Judge’s approach virtually nullifies the activity and where there are at any rate only a small number of points on offer. The purposive approach reaches exactly the same result as in GW

(3) That there is at any rate direct evidence that the Judge’s approach was not the legislative intent. This is because the original draft of the PIP regulations did not include an equivalent to descriptor 2(b)(ii). This was included explictly in order to deal with claimants who were at increased risk of choking. Clearly that purpose would be frustrated if the descriptor were interpreted so that the person who was at risk of choking also needed to be unable to cut up his food without an aid (see para 5.18 of “The Government’s response to the consultation on the Personal Independence Payment assessment criteria and regulations”)

I have been unable to take this matter further because in all the cases I have done, the case has been adjourned to a different Judge who has not taken the point up.

If your case is going to UT, I would be very happy to assist.

AYoung
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Va1der - 27 April 2022 12:59 PM

What exactly is the judge saying?

I don’t have any caselaw for you, but I don’t see how the judge can take such a view. The actions involved in eating necessarily have to be completed in order, and failing one means you can’t progress to the next stage.
If it was the intention, they could have just specified chewing as the determining issue, or any ONE of the other actions.
Most of the caselaw on the activity will deal with aspects of eating, such as what counts as an aid for cutting up food - if nothing else that strongly implies failing one aspect of eating is sufficient - otherwise why would the judge even have entertained the idea?

Having failed to cut up a chicken breast, are you supposed to stuff the whole thing into your mouth?

So taking the words from the Directions Notice, it states:

‘The Representative is claiming issues with taking nutrition. This is defined in the legislation as a) cut food in to pieces, convey food to ones mouth and chew and swallow food and drink b) take nutrition by a therapeutic source

The Appellant does not require the use of a therapeutic source and so the definition lies with a). The definition appears to be a complete one, meaning all elements must be met in order for him to be considered as having any difficulty with taking nutrition. Consequently it means that having issues with grip is not enough. This is an issue that the Tribunal must consider’.

 

AYoung
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If your case is going to UT, I would be very happy to assist.[/quote]

Thanks Elliott. Its is still at First Tier for now. Hearing is next week, and it appears that this Judge has restricted his involvement in the hearing so he may ne

Martin Williams
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Worth noting also that the PIP Assessment Guide (which can be relied on to some extent as persuasive in interpreting the descriptors- see para 15 of GW v SSWP (PIP) [2015] UKUT 570 (AAC) quoted above) suggests grip problems resulting in need for adaptive cutlery are sufficient to score points:

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).

https://www.gov.uk/government/publications/personal-independence-payment-assessment-guide-for-assessment-providers/pip-assessment-guide-part-2-the-assessment-criteria

 

Martin Williams
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Also just on the nature of the direction quoted:

I really don’t think it is for a Judge dealing with a case on an interlocutory basis when making directions to give a concluded view of the nature of a legal test and tell another FTT that it must deal with that view. The Judge making directions cannot bind the FTT that ultimately deals with the case and should not give the impression that they have done so in making directions like this.

Elliot Kent
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Martin Williams - 28 April 2022 01:18 PM

Also just on the nature of the direction quoted:

I really don’t think it is for a Judge dealing with a case on an interlocutory basis when making directions to give a concluded view of the nature of a legal test and tell another FTT that it must deal with that view. The Judge making directions cannot bind the FTT that ultimately deals with the case and should not give the impression that they have done so in making directions like this.

This is a point which is at least, to some extent, made by Judge Wright in considering directions made in a further North East case DT v SSWP (PIP) [2020] UKUT 156 (AAC) at para 4.

Mr Finch
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Had a similar debate with a judge who reasoned that you have to take all the words of a definition and substitute them into the descriptor. This seems to be the only basis for the ‘complete test’ side of the argument.

This doesn’t work, as in the other definitions you get absurdities like ‘needs physical intervention by another person and does not include speech to be able to dress…’ You have to take out the words that are there to form the sentence. Where an activity includes several things, you have to be able to perform the whole activity to be able to do it.

Paul Stockton
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It seems obvious to me that each of the component parts of the definition of taking nutrition has to be met, one way or another, for a person to be able to take nutrition. It would be absurd to suggest, for instance, that someone who can do everything in the definition except swallow can in some statutory sense be considered to be be able nonetheless to take nutrition unaided. The judge should be looking at this in the statutory context. The descriptors are intended, between them, to provide a complete set of answers to the question of what the appropriate point score is for the various ways in which a person could have an issue with taking nutrition.

The descriptor list in the activity could I think be approached as a series of “what-if?” questions. So if the only impairment is that they can’t cut up food the answer is 2(b)(i) or (iii) - they need an aid or appliance, or they need assistance. If they can’t convey food to the mouth they need either an aid or appliance (2(b)(i)) or someone else to do it for them (2(f)). If they can’t chew or swallow they need a therapeutic source, which they can either manage themselves (2(c)) or which they need assistance for (2(e)). If they have more than one impairment the highest point score applies (PIP Regulation 7).

Martin Williams
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A helpful, although obiter (ie non binding) view from Judge Hemingway in CB v SSWP (PIP) [2022] UKUT 100 (AAC) which has just been published to UT website:

11. I do not agree with the conclusion reached by the F-tT that for dentures to count as an aid or appliance they must assist with both chewing and swallowing. That is because the language used in the legislation does not point to such an interpretation; because the process of taking nutrition involves four components being cutting food, conveying it to the mouth, chewing it and swallowing it all of which are necessary (according to the definition) to achieve the taking of nutrition such that if only one of the components (such as chewing) cannot be done the overall task cannot be done; because the F-tT’s interpretation would seem to require an aid or appliance of considerable and quite probably unrealistic versatility if it is required to assist with all four components, and because Mr Naeem has, both fairly and realistically in my view, conceded the point in his submission on this appeal.  So, I have formed what is only an opinion, albeit I have to say a very strongly held one, that for an item to count as an aid or appliance for the purpose of taking nutrition it does not need to assist with more than one of the necessary components as set out in the definition appearing at Schedule 1 part 1 of the PIP Regulations and set out above.

Hopefully given this is position of DWP and strongly held position of a UT Judge the FTT Judge in question will cease pursuing this approach….

Elliot Kent
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Ahh, that is the dentures case (or one of them perhaps) - https://www.rightsnet.org.uk/forums/viewthread/16793/

past caring
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Martin Williams - 03 May 2022 04:11 PM

A helpful, although obiter (ie non binding) view from Judge Hemingway in CB v SSWP (PIP) [2022] UKUT 100 (AAC) which has just been published to UT website:

*snip*

Hopefully given this is position of DWP and strongly held position of a UT Judge the FTT Judge in question will cease pursuing this approach….

I think it’s maybe arguable this is obiter only in as much as it discusses the specifics of whether dentures might be an aid or appliance. Certainly, Judge Hemingway’s approach can accurately be described as one which considers it unarguable other than that a claimant has to be able to achieve all four steps (cut up food, convey it to the mouth, chew it and swallow it) in order to take nutrition so that, as he says, if one of the components cannot be done, the overall task cannot be done.

Elliot Kent
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It must be obiter because it is not part of the dispositive reasoning (i.e. the ratio decidendi) which wholly related to activity 5.

It is though fairly clearly a strongly expressed and reasoned view and ought to be weighted by the FtT accordingly. The fact that the UT was even prepared to entertain the argument that a need for dentures might provide sufficient basis for entitlement under descriptor 2(b) alone suggests that we might be a little off-piste.

The obiter/ratio dichotomy is rather unfashionable these days anyway (see R v Barton [2020] EWCA Crim 575).

[ Edited: 4 May 2022 at 06:29 pm by Elliot Kent ]
Mr Finch
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I thought whether a remark was obiter is for the reader of the judgment, e.g. a later court, to infer. It seems odd for the ruling judge to declare a section obiter, although it certainly happens a lot.
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?