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The Upper Tribunal has recently made a decision (CPIP/3656/2016) which makes the law clearer about people who ‘cannot’ do any of the PIP descriptors. This will mainly affect people who have a very high level of impairment or disability and who cannot do basic things even with help and aids.
 

BACKGROUND
The PIP Descriptors say that people who ‘cannot’ do an activity even with assistance and aids score a high number of points. For example, someone who ‘cannot’ cook a simple meal even with assistance and aids can score 8 points. PIP regulation 4 (2A), however, says that someone who ‘cannot’ do any activity reliably should be counted as not being able to do that activity for the purposes of PIP. (Reliably is defined as meaning safely, repeatedly, to an acceptable standard and taking no longer twice as long as a non-disabled person).

Because of this duplication between the PIP Descriptors and Regulation 4 (2A), there’s been some confusion about what ‘cannot’ in the PIP Descriptors actually means. Does a PIP descriptor, when it talks about someone who ‘cannot’ do something, actually mean someone who ‘cannot do it reliably’?
 

WHAT THE UPPER TRIBUNAL DECIDED
The Upper Tribunal decided that Regulation 4 (2A) does NOT apply to any of the ‘cannot’ descriptors in PIP. It only applies to the descriptors which talk about someone who can do an activity with some sort of support, such as aids or assistance.

Looking at Descriptor 9, for example, about engagement, Regulation 4 (2A) applies to Descriptor 9 (c) - a person who can engage with others with social support from professionals or experienced friends or family. This means that you have to look at whether the person can engage *reliably* with social support. But if a person says that they cannot engage with people at all, even with help and support, then you don’t need to think about whether they can do so reliably.

It’s not clear whether this clarification in the law will make it easier or more difficult to claim points for not being able to do a PIP descriptor activity.
 

WHAT THIS MEANS FOR YOU
If you have a very high level of impairment or disability such that you cannot do one or more of the PIP descriptor activities, even with help and aids, this decision will help you inasmuch as the meaning of the PIP descriptor is now clearer. But it’s not yet clear if this makes it easier or more difficult to claim these points.
 

TIMING
It’s always difficult to say when Upper Tribunal decisions start being used in practice. The Upper Tribunal made this decision on 19 May 2017 so it’s safest to say that the meaning shown above can be used immediately in your claims, mandatory reconsiderations and appeals, but it may take some months before DWP and assessors catch up.
 

This analysis is brought to you free of charge by BuDS Benefit Information Team. It is only general information and you should take advice on your own case. If you value our entirely voluntary charitable work, please consider making a donation via https://mydonate.bt.com/fundraisers/alexandermcpherson1
 

You can read the full judgement here: https://www.gov.uk/administrative-appeals-tribunal-decisions/ab-v-secretary-of-state-for-work-and-pensions-pip-2017-ukut-217-aac

 

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