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In August 2020, the Upper Tribunal (Administrative Appeals Chamber) gave judgment in KT and SH v Secretary of State for Work and Pensions [2020] UKUT 252 (AAC), concerning how a decision-maker considering entitlement to the Personal Independence Payment (“PIP”) should approach the risk of fire posed to deaf people while they wash.
Entitlement to PIP is determined by assessment of a claimant’s ability to carry out specified daily living and mobility activities. One such activity is “washing and bathing”. Under regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013, 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”.
In RJ, GMcL and CS v Secretary of State for Work and Pensions v RJ (PIP) [2017] UKUT 105 (AAC), the UT held that [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”.
In KT and SH v Secretary of State for Work and Pensions [2020] UKUT 252 (AAC), the UT held that, in the case of a person who has to remove their hearing aids or cochlear implants while washing, and consequently cannot hear a typical alarm, the risk of a fire occurring (applying RJ) is a “real possibility that cannot be ignored … having regard to the nature and gravity of the feared harm”.
The Secretary of State for Work and Pensions had sought to argue that the risk of a fire occurring while washing was so remote that it could reasonably be ignored by decision-makers.
The National Deaf Children’s Society, acting for two individual deaf children in their PIP appeals, successfully argued that, regardless of the low risk of a fire materialising, the potential consequences were sufficiently grave to justify it being a risk which could not be ignored.
On 28 February 2023, the Secretary of State completed a review of PIP claimants affected by the judgment. In results published on 16 March 2023, the Secretary of State announced that around 4,000 new payments to deaf people have been made, and around £11 million in arrears payments arising from the application of KT & SH have been paid out by the Department for Work and Pensions.
The Government’s announcement of the review is available here.
Matthew Fraser acted pro bono for the two successful appellants in KT & SH, instructed by the National Deaf Children’s Society.
