Under PIP, if a condition or disability affects you more than half the time, it has to be treated as affecting you all the time. Equally, if a condition or disability does not affect you half the time, then it can be disregarded or ignored for PIP purposes. This is known as the 50% rule.
Did your condition or disability affect you so that you met a PIP descriptor test more than half the time over that full year? In working this out, you should look at the condition over the most appropriate period. Imagine you have a condition that means you meet a PIP descriptor test some days, but not on others. What you would do then is count the number of days where the descriptor test was passed, and see if they add up to more than 183 = half a year. If you had a condition which means you meet a PIP descriptor test some weeks, but not on others, then you would count the weeks in the same way.
What happens, however, when you have a condition which affects you differently hour by hour over the day, maybe a bit differently every day? Counting the hours over the whole year and seeing if they add up to 4381 (hours in six months) isn’t practical.
This issue came up before the Upper Tribunal in 2015 in case CPIP/0626./2015. This case is not widely available online. However, during the UT hearing, the Secretary of State for DWP ‘conceded’, or agreed, that where a condition affects someone for ANY part of a day, then it should be treated as applying for the WHOLE of that day. The only time that a condition would not be regarded as affecting someone for the whole day is if it affected them for only a ‘trivial’ part of the day. Trivial means insignificant or small – so a condition, say, which only affected you for 10 minutes in the day might be seen as trivial for the purposes of this counting rule.
The important principle is that conditions which affect you for only part of a day are legally regarded as affecting you for the whole day when it comes to the 50% rule. Imagine you have fibromyalgia and have flares of pain for two or three hours per day which prevent you, while you have the flare, from cooking or bathing. That’s more than a trivial part of the day, so for PIP you are regarded as unable to cook or bathe for the whole day. If this happens 4 days out of the week (or 16/17 days of the months), then that’s more than 50% of the time, so you meet those PIP descriptor tests and should get points.
This is the law. The DWP like to follow their own rules. You may find it hard to persuade assessors and decision makers to accept your argument. But a Tribunal will know the law, and apply it fairly.
Sometimes, it's helps to have friends who know the rules of PIP and the appropriate case law. If you are reading this, you have those friends in the form of the BASE adviser team!