DA v Secretary of State for Work and Pensions (PIP): [2019] UKUT 320 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Brunner, QC on 16 October 2019.
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Judicial Summary
Personal Independence payment- daily living activity 5- Importance of identifying the ‘impaired function’ to apply properly the definition of ‘aid and appliance’. A bottle and sterilised water, used to wash after going to the toilet was not an aid for the purposes of the PIP Regulations, because the claimant had no impaired function relating to the activity of cleaning herself, and because the process was a preventative therapy rather than something which made it easier or possible for her to clean herself. The claimant made a claim for personal independence payment (PIP). She had recurrent urinary tract infections as well as other conditions. The issue before the Upper Tribunal was whether the FTT had been correct to reject her claim that descriptor 5b applied (needs to use an aid or appliance to manage toilet needs or incontinence’. It was not in dispute that she used a bottle with sterilised water, and wipes, to clean herself after using the toilet, in order to reduce the risk of urinary tract infection. Held, dismissing the appeal, that: 1. The first stage in identifying whether an object is an aid is to identify what ‘impaired function’ the claimant has relating to the activity which they use a purported ‘aid’ for. Under Regulation 2 of the Social Security (PIP) Regulations 2013, an aid or appliance ‘means any device which improves, provides or replaces C’s impaired physical or mental function’. Impaired functions relevant to cleaning after using the toilet would include impaired ability to reach to wipe oneself, or impaired dexterity making it difficult to use toilet paper. Submissions by both the claimant and SSWP that the ‘impaired function’ could be an impaired immune system or the infections themselves were flawed. The ‘impaired function’ is not an impaired bodily function considered in the abstract, but the claimant’s impaired physical or mental function which affects her ability to carry out a particular activity: CW v SSWP [2016] UKUT 0197 followed. The claimant in this case had no difficulty with cleaning herself: there was no relevant ‘impaired function’ for the purposes of the definition of ‘aid or appliance’. 2. The second stage is to identify whether that ‘impaired function’ is required in order to carry out the activity. That did not arise in this case, as there was no relevant ‘impaired function’, CW v SSWP [2016] UKUT 0197 followed. Obiter, the Secretary of State’s submission that a bottle with sterilised water was one of the normal manners of cleaning oneself after using the toilet was rejected. 3. The third stage is to identify whether the purported aid improved, provides or replaces the ‘impaired function’. Items such as long-handled devices for cleaning ones backside could improve an impaired dexterity in relation to activity 5 because they directly compensate for the reduced ability to carry out the activity. In this case, the purported aid was not being used to improve any difficulty with performing the act of cleaning: it was being used as a preventative therapy. 4. The FTT applied the correct test, and reached the inevitable conclusion that the bottle and water was not an aid.