Personal independence payment – daily living activity 5: managing toilet needs or incontinence – assistance to self-catheterise by itself not therapy for the purposes of activity 3
The claimant had been awarded a personal independence payment (PIP) because, among other things, she stated that she needed her partner’s help to insert a catheter as she was unable to do so alone due to brittle bones in her wrist. Following her report of a change of circumstances, the claimant submitted a new PIP claim. She was examined by a health care professional who reported that the claimant’s statement was inconsistent with her medical condition and her urologist’s report that she could insert a catheter. The Secretary of State awarded the claimant two points under descriptor 5(b) (needs to use an aid or appliance to be able to manage toilet needs or incontinence). The claimant’s application for a mandatory reconsideration of that decision was unsuccessful, despite her submitting letters from a community mental health nurse and her urologist which both referred to her need for help. The claimant appealed to the First-tier Tribunal (F-tT) but did not attend the hearing. The tribunal confirmed the award under descriptor 5(b) but not descriptor 5(d) (needs assistance to be able to manage toilet needs) as it did not accept that the claimant needed her partner’s help and it also held that self-catheterisation did not amount to therapy for the purposes of activity 3. The claimant appealed to the Upper Tribunal to challenge the relevance of the activities used by the F tT to support its findings while her representatives later argued that the claimant’s needs also fell within activity 3 and that the F-tT hearing should have been adjourned to enable her to attend.
Held, allowing the appeal, that:
to describe help with catheterisation as “therapy” would be a strained use of language. The specific provision made by paragraph 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 for the management of incontinence to include self-catheterisation for the purposes of activity 5 also indicated that catheterisation should not count as “therapy” for the purposes of activity 3 (paragraph 7);
“self-catheterisation” referred to the type of catheterisation device used and did not require a catheter to be self-administered; otherwise the definition of “manage incontinence” would be ineffective in both descriptor 5(e) (needs assistance to be able to manage incontinence of both bladder or bowel) and descriptor 5(f) (needs assistance to be able to manage incontinence of both bladder and bowel) (paragraph 8);
as a matter of statutory construction, a provision which specifically provided for a situation may prevent a provision expressed in more general terms from applying to the same situation. Activity 5 represented an attempt to calibrate toilet needs and problems resulting from incontinence in terms of their severity, and that intention might be undermined if some situations which were specifically provided for in activity 5 were also held to fall within the more general provisions of activity 3. There may be situations in which assisting a person with catheterisation may form part of a treatment which amounted to therapy for the purposes of activity 3, but by itself assisting a person to catheterise did not do so (paragraphs 8 to 9);
the F-tT erred in failing to consider properly the question of whether the claimant needed assistance to administer a catheter; the activities it referred to did not provide a sufficient test, the letters from the mental health nurse and urologist were not mentioned and it failed to address the claimant’s assertion that she was unable to insert a catheter because of the condition of her wrists (paragraphs 10 to 11).
The judge set aside the First-tier Tribunal’s decision and remitted the case for hearing before a differently constituted tribunal.