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The Upper Tribunal, sitting as a three-judge panel, has made a landmark ruling about safety and how it affects a PIP claim.

The ruling in decision CPIP/1599/2016 sets out a new test for deciding when a person cannot safely do something, and should make it far easier for some people to claim PIP.

Regulation 4 (4) (a) of the PIP Regulations states that a person who cannot undertake a descriptor activity (such as cooking or walking) safely should be regarded as not able to do that descriptor.

DWP has argued that the risk of something happening has to be ‘more likely than not’ for it to be unsafe for the purposes of this Regulation. By their argument, for example, a person who has occasional epileptic seizures could safely cook or wash, because it is more likely than not that the person won’t have a seizure while cooking or washing.
Another example might be a diabetic who has occasional hypos when walking in the street, where DWP have argued that it is more likely than not that the diabetic won’t have a hypo while outside.
DWP have stuck to this reading of the law even though very serious and even life-threatening consequences could follow should the risk occur, like the epileptic person drowning or burning themselves or the diabetic person being run over.
DWP say that the severity or seriousness of the consequences of a risky event doesn’t matter, only the likelihood that it will happen. Further confusion has occurred by DWP (and sometimes Tribunals too) saying that the risky event has to occur more than 50% of the time, quoting PIP Regulation 7. By this argument even an epileptic who has fits several times a day, for example, is regarded as safe to cook or walk outdoors because they are not unsafe more than half the time.
The Upper Tribunal has swept away the DWP arguments, saying that their reading of the law is clearly not what Parliament intended when it passed the PIP Regulations.
They’ve said three things:
1. The 50% rule does NOT apply when considering risk – in other words the risky event does not have to happen more than 50% of the time.
2. The DWP’s ‘more likely than not’ rule for assessing risk is wrong.
3. The seriousness or gravity of the risky event has to be considered alongside the likelihood that it will happen.

THE NEW SAFETY TEST
The Upper Tribunal has set a new test for looking at safety in PIP: Is there a real possibility which cannot be ignored of harm occurring, bearing in mind the nature and gravity (seriousness) of the feared harm? If the answer to this is yes, then the person should be assessed as not able to do the activity safely.
THE NEW TEST EXPLAINED The first part of the test is quite vague – is there a ‘real possibility which cannot be ignored’. This will need to be decided on a case by case basis. The phrase ‘real possibility’ means that highly unlikely risks won’t count because they are not ‘really possible’. ‘Cannot be ignored’ means that the risk is of such seriousness that it can’t just be dismissed.
For example, it can’t be said that there’s a ‘real possibility’ that a person who has had one unexplained sudden blackout seven years before will have another one, making it unsafe for him to walk alone outdoors. There’s a possibility, but not a real one. But there would be a ‘real possibility’ that a person who has one or two sudden blackouts per week might have a serious road accident if they walked outdoors alone. A road accident, or drowning in the bath, or falling onto a cooker, are all risks which are so serious that they can’t be ignored. But the risk that someone might have a minor nick or cut when chopping vegetables, of the sort than non-disabled people occasionally have, might be regarded as a risk which could be ignored.
The new test requires a balance to be struck between the seriousness of the risky event and the likelihood that it might happen. A very serious and life threatening event which is relatively unlikely to happen (but still representing a ‘real possibility’) might still make it unsafe to do something. An example might be a blind person, even one accustomed to walking independently, going out into the street and being unable to hear the traffic, and being seriously injured.
Another example might be someone who has regular unpredictable epileptic seizures cooking a meal on a regular hob, where they might fall onto the hob and be seriously injured. On the other hand, a more minor risk, like a fall indoors resulting in minor bruising, might not make it unsafe for a person to dress themselves, even if it’s moderately likely that the person will fall.
SUPERVISION In PIP, you can earn points if you can only do an activity when supervised to keep you safe. The points vary from descriptor to descriptor. The Upper Tribunal has also said that if you cannot do an activity safely using the new test above, but could do it safely if supervised, than you should earn the supervision points in PIP. So, for example, if you had regular unpredictable epileptic seizures cooking a meal on a regular hob, and might fall onto the hob and be seriously injured, then obviously another person supervising you could keep you safe. However, the supervision does have to be practical and reasonable. If you have a real possibility of choking while eating or drinking, for example, then it might not be reasonable for someone to be with you every time you ever take a drink or eat anything. In these rare circumstances, you may be able to claim that you cannot do the activity at all because you cannot do it safely and it is not practical for you to be supervised to make you safe.
MOBILITY & MOVING AROUND
The new safety test will have most impact on the PIP mobility descriptors. The street is a high risk environment where help is not always available, and many people have conditions which put them at real risk of an accident. The Upper Tribunal said in decision CPIP/1347/2015 that a person who cannot safely walk along the pavement or cross the road safely by themselves is unable to safely follow a familiar route without the help of another person and should therefore score 12 points (enhanced mobility) under mobility descriptor 1f. The new safety test will make it far easier for more people to meet this new test.

WHAT THIS MEANS FOR YOU
If you are at real risk of serious harm when doing any of the PIP descriptors, for any reason, you could point this out on your application form, going into detail about the risk and the likelihood it could occur. You can say that you can only do a descriptor activity, like cooking, safely when supervised, and claim the relevant points. Trying to claim that you can’t do the activity safely at all, even if supervised, is only going to be accepted in rare cases.
If you can’t safely walk along the pavement or cross the road without being supervised, you could say why this is the case, going into details, and claim mobility descriptor 1f. The above will also apply for mandatory reconsiderations and in appeals to a Tribunal.
You could quote the case numbers above to strengthen your argument. Remember that medical evidence of your condition or disability AND strong evidence of an actual risk of harm will be needed.
This decision should apply to all claims, mandatory reconsiderations and appeals decided after 23 March 2017, because the Upper Tribunal made the decision on that date.

This analysis is brought to you by BuDS Benefit Information Project – https://buds.org.uk/benefitsinformation/. It is general information only and you should take advice about your specific case.

You can read the full judgement here: https://www.gov.uk/administrative-appeals-tribunaldecisions/rj-gmcl-and-cs-v-secretary-of-state-for-work-and-pensions-v-rj-pip-2017-ukut-105-aac