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On 9 March 2017, the Upper Tribunal (Administrative Appeals Chamber) (Lady Carmichael, UTJ Knowles QC, UTJ Markus QC) handed down a significant judgment on the interpretation of the word "safely" under regulation 4 of the Personal Independence Payment Regulations 2013. Entitlement to the Personal Independence Payment (“PIP”) is determined by assessment of a claimant’s ability to carry out specified daily living and mobility activities. Under regulation 4(2A), a claimant is not to be assessed as able to carry out an activity unless she or he can do so "safely". Regulation 4(4) provides that "'safely' means in a manner unlikely to cause harm to [the claimant] or to another person, either during or after completion of the activity". The central question for the Upper Tribunal was how to approach the assessment of the likelihood of harm. The Upper Tribunal concluded [56]: “An assessment that an activity cannot be carried out safely does not require that the occurrence of harm is "more likely than not". In assessing whether a person can carry out an activity safely, a tribunal must consider whether there is a real possibility that cannot be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case. It follows that both the likelihood of the harm occurring and the severity of the consequences are relevant. The same applies to the assessment of a need for supervision”. The decision, which is available here, is expected to have major ramifications for all PIP claimants. Matthew Fraser (together with Zoe Leventhal at an earlier stage of proceedings) acted pro bono for the National Deaf Children’s Society, whose appeal on behalf of a PIP claimant was allowed. The Upper Tribunal has remitted the matter back to the First-Tier Tribunal for a fresh determination.
