Ask CPAG Online - Have the frequency rules been properly applied?
What is the 50% rule?
Regulation 7 of the PIP Regulations deals with the fluctuating nature of many health conditions by setting out ‘frequency rules’.
- If you satisfy a descriptor for at least 50% of the days in the ‘required period’, it applies to you. The required period is normally the 3 months before your claim for PIP and the following 9 months. This means that a descriptor can apply even if you frequently do not satisfy it (e.g. where you suffer from arthritis and only need help with the prescribed activities when your condition up), as long as you satisfy it on the majority of days.
- Where you satisfy two or more descriptors within an activity for more than 50% of the days in the 'required period', the highest scoring descriptor applies. This is often the case where you are suffering from a more serious condition. The DWP and tribunals sometimes get this wrong by adopting a ‘top down approach’ to the descriptors (see 'Have the correct descriptors been chosen?').
- Where you do not satisfy any single descriptor within an activity for more than 50% of the days in the 'requried period', but satisfy two or more of the scoring descriptors for a total of more than 50% of the days, the descriptor which you satisfy most frequently applies (if you satisfy each descriptor for the same number of days, the highest scoring one applies). This often applies where your condition gives rise to different needs on different days, or you suffer with a number of conditions which affect you in different ways.
- Most of the descriptors begin with the words ‘can’, ‘cannot’ or ‘needs’. Regulation 7(1)(a) requires ‘for the majority of days in the year’ to be inserted before these words (e.g. ‘For a majority of days in the year, cannot dress or undress at all’).
Applying the 50% rule correctly can be difficult (UK/972/2015 suggested mathematical probability theory may be needed to calculate whether you satisfy the 50% rule where you suffer from more than one condition). It may help if you keep a diary for a few weeks. In contrast with DLA, the PIP assessment requires a mathematical approach rather than a ‘broad view’ approach of your needs over the relevant period (see CSPIP/754/2014). You can check for updated case law on the 50% rule on LASA's pipinfo.
The DWP often fails to apply the 50% rules properly and this is a common ground for disputing a decision and showing that you do, in fact, satisfy relevant descriptors. The problem is partly caused by the fact that the PIP2 questionnaire gives you standardised choices of ‘yes / no / sometimes’ rather than referring to the 50% rule. Also, the health care professional’s report gives details of your ‘typical day’ but does not deal with how often this applies, while the bare wording of the descriptors does not refer to the 50% rule.
What if you satisfy a descriptor for only part of a day?
Case law has confirmed that a descriptor can apply if you only satisfy it for part of the day (as long as your inability is significant enough to affect your functioning in more than a trifling way) – see CPIP/2054/2015 and CPIP/2287/2015. This could apply, for example, where you need to help to dress in the mornings due to stiffness and pain from arthritis which eases during the day through the effect of activity and painkillers.
Are you able to carry out an activity as often as reasonably required?
This is part of the ‘reliability criteria’ (see ‘Have the reliability rules been properly applied?). If, for example, you can walk more than 200 metres, but would be unable to walk more than 50 metres later in the day due to fatigue, you could score 10 points for mobility descriptor 2(d).