Ask CPAG Online - Have the reliability rules been properly applied?

What are the reliability rules?

Regulation 4(2A) of the PIP Regulations says that you are only to be assessed as satisfying a descriptor if you can carry out the relevant activity:

  • ‘safely’ i.e. in a manner unlikely to cause harm to you or another person during or after the activity;

  • ‘to an acceptable standard’;

  • ‘repeatedly’ i.e. as often as reasonably required; and

  • ‘within a reasonable time period’ i.e. in no more than twice the maximum time normally taken by a person without a limiting physical or mental condition.

The rules mean that if you are unable to do something reliably, even if you had assistance, you should be treated as unable to do it at all.

What factors may be relevant?

Pain and fatigue are clearly relevant to the reliability criteria, as are the benefits and any adverse side effects of medication you take. Whether you can carry out an activity ‘safely’ involves an assessment of risk. The test is whether harm is likely, as opposed to certain. In [2017] AACR 32, a Three-Judge Panel of the Upper Tribunal held that an assessment under paragraph 4(2A)(a) of the PIP Regulations that an activity cannot be carried out safely does not require that the occurrence of harm is 'more likely than not'. Instead, a decision maker 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. Both the likelihood of the harm occurring and the severity of the consequences are relevant in this consideration. ‘An acceptable standard’ is not defined, so there is scope for detailed argument in any particular case. You can check for updated case law on the reliabililty rules on LASA's pipinfo.

How should the reliability rules be applied?

The requirement to be able to carry out an activity reliably should be applied to every descriptor. UK/5205/2014 deals with how to reconcile the wording of some of the descriptors with the reliability rules.

The DWP often fails to properly consider and apply the rules and this is a common ground for disputing a decision and showing that you do satisfy relevant descriptors. The problems is partly caused by the fact that the PIP2 questionnaire and the PIP medical assessment are not designed to specifically address the issue, while the bare wording of the descriptors do not refer to the reliability criteria.