MMcK v Secretary of State for Work and Pensions (PIP): [2016] UKUT 191 (AAC); [2019] AACR 26
Upper Tribunal Administrative Appeals Chamber decision by Judge Agnew on 6 April 2016.
Read the full decision in .
Judicial Summary
Supreme Court decision reported as [2019] AACR 26
The respondent, a man in his forties, made a claim for personal independence payment (“PIP”), relying on, inter alia, the effects that his mental health had on his ability to engage with other people in respect of activity 9 in Part 2 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013(“the PIP Regs”). His claim was refused by the Secretary of State, inter alia, on the basis that he only scored two points under descriptor 9b, “needs prompting to be able to engage with other people”. The First-tier Tribunal dismissed his appeal. The respondent appealed to the Upper Tribunal and argued that he should have been awarded four points under descriptor 9c, “needs social support to be able to engage with other people”, which would have brought his total number of points for daily living activities to nine thereby qualifying him for the daily living component of PIP. The Upper Tribunal allowed the appeal, holding that the First-tier Tribunal had given an inadequate explanation of why descriptor 9b had been selected rather than descriptor 9c and had failed to make adequate findings of fact. The Upper Tribunal set aside the decision, remitted the case to the First-tier Tribunal for rehearing and gave directions governing the tribunal’s approach to activity 9. The Secretary of State appealed to the Inner House of the Court of Session against those directions, submitting that “social support” needed to be contemporaneous with the social engagement being supported and that the support required was something more substantial than prompting. The Inner House refused the appeal, holding that the support did not have to be contemporaneous with the social engagement but that there had to be a temporal or causal link of some sort between the help given and the activity for which help was required. It therefore remitted the case to the First-tier Tribunal, directing that encouragement or any other sort of prompting could qualify as “social support” if, to render it effective or to increase its effectiveness, it required to be delivered by someone trained or experienced in assisting people to engage in social situations. The Secretary of State appealed and accepted before the Supreme Court that “social support” for the purposes of descriptor 9c could consist of “prompting”. Held, allowing the appeal, that:
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when determining which of the descriptors applied for the purposes of activity 9, it is necessary first to establish what support the person needs in order to be able to engage with other people face to face (paragraph.[30]);
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“support” in descriptor 9c is a broad word and includes prompting as a form of support (paragraph. [32]);
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broadly speaking, descriptor 9c reflects a greater degree of disability than descriptor 9c and responding to that greater degree of disability requires the attention not just of “another person” (as in the case of “prompting” under descriptor 9b) but of “a person trained or experienced in assisting people to engage in social situations” (paragraph. [33]. Applied in the context of family or friends, to qualify for points under 9c the claimant has to need support from someone who is not just familiar with him or her but who is also experienced in assisting engagement in social situations. It is the training or experience of the helper upon which the claimant depends in order to enable the face to face engagements with others to take place, not simply the close and comforting relationship that may exist between claimant and helper (paragraphs [33]-[34]);
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endorsing the Inner House, social support “will only be effective if delivered by someone who is trained or experienced”, but, disagreeing it the Inner House, there is not a separate test of needing a trained or experienced person to increase the effectiveness of such support (paragraphs [35]-[36]);
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there is nothing in the wording of descriptor 9c or the definition of “social support” which requires the actual presence of the supporter during the engagement nor which requires that the support is timed to coincide with the engagement rather than being provided in advance or afterwards. The word “needs” shows that the need has to be a continuing one, but it does not exclude the possibility of social support given outside the confines of the engagement itself (paragraph [43]);
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nor can such contemporaneous restriction be implied (paragraphs [44]-[45]; and
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the Inner House’s view that a “temporal or causal link” was needed between the help given and the activity in respect of which the help is not a formulation that should be adopted because it is difficult to envisage how support which is linked in time to a face to face engagement but has no causal link to what occurs can have any relevance (paragraph 47).