51茶馆

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Judicial Summary

1. The FTT found that the appellant鈥檚 鈥渇unctional ability might be improved by more regular and better pain relief.鈥� Whilst the tribunal has the function to enquire, there are certain clinical matters which should be respected. In particular in this case there was the evidence of the consultant that a variety of medication had been tried but was unsuitable. In that circumstance the FTT was wrong in basing its assessment upon her being able to take additional medication to improve her function. In any event the tribunal should be highly circumspect in such an approach.

2. In finding, following observations as to her appearing to engage satisfactorily with health professionals and with the tribunal, that she would be able to engage with others 鈥渨henever reasonably necessary鈥�. The FTT applied the wrong test. The definition of 鈥渆ngage socially鈥� informs activity 9 (SF-v-SSWP (PIP) [2016] UKUT 543 (AAC)). It includes the ability to establish relationships. The ability, therefore, to engage with people known to her (family and existing friends) or with whom she needs to engage for a specific and limited purpose (health professionals or the tribunal) is insufficient to engage the baseline (zero scoring) descriptor. Further, there is no legal basis for limiting the assessment of her ability to engage with others face to face to such engagement as is reasonably necessary. The purpose of PIP, like DLA before it, is to assist those with disabilities to live, as far as possible, the life that they would wish to live, and any mitigating behaviour adopted because of that disability must be disregarded: EG-v-SSWP (PIP) [2017] UKUT(AAC).

3. As to Mobility Activity 2 the FTT restricted its consideration of her need to walk to that 鈥榬easonably required鈥�, perhaps in view if the definition of 鈥渞epeatedly鈥�. To the extent that was interpreted to exclude the appellant鈥檚 choice as to how often she would 鈥榤ove around鈥� and replace that choice with an objective test of how often she needed to do so, it was wrong. Unless it is inherently unreasonable an appellant鈥檚 choice should be respected. I import the dicta of Lord Slynn of Hadley in Secretary of State 鈥搗-Fairey (R(A) 2/98); although made in the context of the Attendance Allowance scheme the assessment was of attention 鈥渞easonably required鈥�.
   鈥� In my opinion the yardstick of a 鈥渘ormal life鈥� is important; it is a better approach than adopting the test as to whether something is 鈥渆ssential鈥� or 鈥渄esirable鈥�.
4. As to mobility activity 2 the FTT must apply MH & others 鈥搗- Secretary Of State for Work and Pensions [2016] UKUT 531 (AAC), the decision under appeal being prior to those regulations, and there being no application to stay the effect of MH.