MM and BJ v Secretary of State for Work and Pensions (PIP): [2016] UKUT 490 (AAC); [2017] AACR 17

Upper Tribunal Administrative Appeals Chamber decision by Judge Wright on 28 October 2016.

Read the full decision in [2017] AACR 17ws.

Judicial Summary

Daily living activity 2: taking nutrition – physical and mental acts needed to eat and drink, not the nutritious quality of food and drink

The Secretary of State decided that both claimants were not entitled to personal independence payment (PIP) and they had separately appealed to the First-tier Tribunal (F-tT), where it was argued on their behalf that no account had been taken of their need under daily living activity 2 for supervision and prompting to take nutrition. Both the appellants had limited diets, MM because her digestion affected what she could eat and BJ because he required prompting in order to eat a good diet. The main issue before the Upper Tribunal (UT) was whether the test of “taking nutrition” under daily living activity 2 in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 only encompassed the act of eating (or drinking) or whether it extended to the nutritious quality of what was being eaten (or drunk). Separate grounds were also raised before the UT in support of MM’s appeal.

Held, dismissing the appeal, that:

  1. the wording “take nutrition” in Part 1 of Schedule 1 to the PIP Regulations had a limited and narrow statutory meaning which focused on the act of eating and drinking and no more – namely, cutting food into pieces, conveying food and drink to the mouth and chewing and swallowing food or drink. Therefore, any enquiry under the PIP scheme had to be on whether a person’s ability to carry out these activities was limited by their physical or mental condition, and not the nutritious quality of what was being eaten or drunk – which was irrelevant under the scheme (paragraph 24 to 25);

  2. accordingly, any reliance on the “acceptable standard” provision in regulation 4(2A) of the Regulations so as to bring the nutritious quality of food or drink into account was flawed because what had to be assessed was the claimant’s ability to eat and drink in the statutorily limited sense of cutting food into pieces, conveying food and drink to the mouth and chewing and swallowing food or drink: SA v Secretary of State for Work and Pensions (PIP) [2015] UKUT 512 (AAC) either not followed or distinguished (paragraphs 27 and 34 to 37);

  3. cases might arise where what was being consumed by the person concerned was not “food” or “drink” or where the person was unable to eat or drink for physical or mental reasons but these did not apply in the instant cases (paragraph 26);

  4. the judge rejected the separate grounds argued on MM’s behalf (paragraphs 41 to 46).

Published 1 December 2016
Last updated 21 August 2017 + show all updates
  1. Decision selected for reporting as [2017] AACR 17.
  2. First published.