THE COURT ORDERED that no one shall publish or reveal the name or address
of the Respondent who is the subject of these proceedings or publish or reveal any
information which would be likely to lead to the identification of the Respondent
or of any member of his family in connection with these proceedings.
JUDGMENT
Secretary of State for Work and Pensions
(Appellant) v MM (Respondent) (Scotland)
before
Lady Hale, President
Lord Kerr
Lord Hodge
Lady Black
Lord Sales
JUDGMENT GIVEN ON
18 July 2019
Heard on 9 April 2019
Appellant Respondent
Samantha Broadfoot QC Janys Scott QC
Julius Komorowski Joseph Bryce
Leon Glenister
(Instructed by Office of
the Advocate General for
Scotland
)
(Instructed by Drummond
Miller LLP
)
Intervener (Mind)
Richard Drabble QC
Tom Royston
(Instructed by Mind Legal
Unit
)
Page 2
LADY BLACK: (with whom Lady Hale, Lord Kerr, Lord Hodge and Lord
Sales agree)
1. This appeal relates to personal independence payment, which is a non-means
tested allowance paid to certain people with long term health problems or disability.
The appeal’s focus is upon one of the markers used to determine whether a
claimant’s ability to live his or her daily life is limited, by his or her physical or
mental condition, to such an extent as to generate an entitlement to personal
independence payment (“PIP”). Various “daily living activities” are examined as
markers, and the one in question here is “engaging with other people face to face”.
The general scheme of the Welfare Reform Act 2012 and the Social Security
(Personal Independence Payment) Regulations 2013
2. PIP is dealt with in Part 4 of the Welfare Reform Act 2012 (“the Act”).
Section 77 introduces the allowance and establishes that a person may be entitled to
one or both of its two components, namely “the daily living component” and “the
mobility component”. This case is concerned with the daily living component.
Entitlement is dealt with in section 78, which also points the way to other relevant
provisions contained in Part 4 and in the regulations made under it. The component
can be paid at either the “standard rate” (which is what is in question here) or, for
those whose ability is more limited, the higher “enhanced rate”.
3. By section 78(1), there are two requirements which the claimant must satisfy
in order to be entitled to the daily living component at the standard rate, namely the
requirement in section 78(1)(a) (which I will refer to as “the limited ability
requirement”), and “the required period condition” in section 78(1)(b). So far as is
material, the section reads:
“78. Daily living component
(1) A person is entitled to the daily living component
at the standard rate if –
(a) the person’s ability to carry out daily
living activities is limited by the person’s
physical or mental condition; and
Page 3
(b) the person meets the required period
condition.
(2) [entitlement to enhanced rate]
(3) [meaning of standard and enhanced rate]
(4) In this Part ‘daily living activities’ means such
activities as may be prescribed for the purposes of this
section.
(5) See sections 80 and 81 for provision about
determining –
(a) whether the requirements of subsection
(1)(a) or (2)(a) above are met;
(b) whether a person meets ‘the required
period condition’ for the purposes of subsection
(1)(b) or (2)(b) above.
(6) This section is subject to the provisions of this
Part, or regulations under it, relating to entitlement to
the daily living component …”
4. Section 80 provides that the question “whether a person’s ability to carry out
daily living activities is limited by the person’s physical or mental condition” (the
limited ability requirement in section 78(1)(a)) is to be determined in accordance
with regulations, and that the regulations must provide for that question to be
determined, except in prescribed circumstances, on the basis of an assessment (or
repeated assessments) of the person. The question of whether the person meets the
required period condition for the purposes of section 78(1)(b) is similarly to be
determined in accordance with regulations.
5. The Social Security (Personal Independence Payment) Regulations 2013
(“the Regulations”) prescribe the activities which are “daily living activities” for
section 78 as those set out in column 1 of the table in Part 2 of Schedule 1 to the
Regulations. The table lists ten activities. Column 2 focuses in some detail on the
ability of the claimant (referred to throughout the Regulations as “C”) to carry out
Page 4
each activity, on a scale ranging from being able to carry out the activity unaided to
being unable to do it. For example, activity 1 in the list is “Preparing food”, and
there are six levels of ability in column 2 ranging from “a. Can prepare and cook a
simple meal unaided” to “f. Cannot prepare and cook food”. Each sub-paragraph in
column 2 is called a “descriptor”.
6. In column 3, points are attributed, according to the level of ability measured
by the descriptors; the greater the difficulty experienced by the claimant, the greater
the number of points awarded. So, a claimant who can prepare and cook a simple
meal unaided has no points attributed, whereas, at the other end of the scale, eight
points are attributed where the claimant cannot prepare and cook food. There are
gradations between the two; for example, a claimant who needs prompting to be able
to prepare or cook a simple meal has two points attributed, as does a claimant who
needs to use an aid or appliance to do so. The same ascending scale of difficulty,
reflected in increasing numbers of points, can be seen in relation to each of the
activities in the table.
7. Regulation 5 provides that the points attributed for each activity in the table
are added together and, if the total is at least eight but less than 12, the claimant has
“limited ability to carry out daily living activities”, and is entitled to PIP at the
standard rate, whereas if the total is 12 points or more, the claimant will be classed
as having “severely limited ability” and is entitled to the enhanced rate.
8. Regulation 4(2A) provides some more detail as to how the assessment of
ability is approached, providing that:
“C is to be assessed as satisfying a descriptor only if C can do
so –
(a) safely;
(b) to an acceptable standard;
(c) repeatedly; and
(d) within a reasonable time period.”
Regulation 4(4) defines these concepts as follows:
Page 5
“(a) ‘safely’ means in a manner unlikely to cause harm to C
or to another person, either during or after completion of the
activity;
(b) ‘repeatedly’ means as often as the activity being
assessed is reasonably required to be completed; and
(c) ‘reasonable time period’ means no more than twice as
long as the maximum period that a person without a physical
or mental condition which limits that person’s ability to carry
out the activity in question would normally take to complete
that activity.”
9. The assessment of the claimant is more than just a snapshot of ability, given
that the required period condition has to be satisfied, see section 78(1)(b). Section
81 dictates the shape of the regulations about this condition, providing (so far as
material) that they:
“must provide for the question of whether a person meets ‘the
required period condition’ … to be determined by reference to
–
(a) whether, as respects every time in the previous
three months, it is likely that if the relevant ability had
been assessed at that time that ability would have been
determined to be limited … by the person’s physical or
mental condition; and
(b) whether, as respects every time in the next nine
months, it is likely that if the relevant ability were to be
assessed at that time that ability would be determined to
be limited … by the person’s physical or mental
condition.”
10. For present purposes, the “relevant ability” is, of course, the ability to carry
out daily living activities (section 81(2)). Section 81(3) deals with the reckoning of
the periods of three and nine months, providing that “the previous three months”
means the three months ending with “the prescribed date” and “the next nine
months” means the nine months beginning with the day after that date. The
Regulations make provision as required by section 81, including establishing what
the “prescribed date” is, and also dealing with further issues to do with the “required
Page 6
period”. The detail does not matter for the issue presently under consideration. What
is important is to recognise that it is not just the claimant’s situation on one day of
assessment that is under consideration, but his or her situation over a period of 12
months. Furthermore, it is clear from the Regulations that some degree of fluctuation
in the claimant’s presentation is anticipated. Regulation 7, which is entitled
“Scoring: further provision”, sets out how to choose which descriptor applies to a
claimant in relation to each activity in the table. It involves looking to see which
descriptors are “satisfied on over 50% of the days of the required period”, and from
that information, working out which descriptor is to be applied. Regulation 7(1)(a)
(which deals with the most straightforward situation) will serve as an example; it
provides that “where one descriptor is satisfied on over 50% of the days of the
required period” that descriptor applies to the claimant.
The provision under consideration in the present case
11. It is Activity 9 in the table in Part 2 of Schedule 1 to the Regulations which
gives rise to the issues in this appeal. In relation to this activity, the table provides:
Column 1
Activity
Column 2
Descriptors
Column 3
Points
9. Engaging with
other people face
to face.
a. Can engage with other
people unaided.
b. Needs prompting to be
able to engage with other
people.
c. Needs social support to be
able to engage with other
people.
d. Cannot engage with other
people due to such
engagement causing either –
(i) overwhelming
psychological distress
to the claimant; or
(ii) the claimant to
exhibit behaviour
which would result in
a substantial risk of
harm to the claimant
or another person.
0
2
4
8
Page 7
12. Difficulty has arisen over descriptor 9c, and in particular over what is meant
by “social support”, and how it differs from “prompting” in descriptor 9b so as to
justify descriptor 9c attracting four points, whereas descriptor 9b only attracts two
points. A subsidiary issue that arises is whether social support only covers help given
whilst actually engaging with other people face to face, or whether help given in
advance is also relevant.
13. Definitions are provided for the purpose of Schedule 1 by Part 1 of the
Schedule, including the following:
“In this Schedule –
‘aided’ means with –
(a) the use of an aid or appliance; or
(b) supervision, prompting or assistance;
‘assistance’ means physical intervention by another
person and does not include speech; …
‘communication support’ means support from a person
trained or experienced in communicating with people
with specific communication needs, including
interpreting verbal information into a non-verbal form
and vice versa; …
‘engage socially’ means –
(a) interact with others in a contextually and
socially appropriate manner;
(b) understand body language; and
(c) establish relationships; …
Page 8
‘prompting’ means reminding, encouraging or
explaining by another person;
‘psychological distress’ means distress related to an
enduring mental health condition or an intellectual or
cognitive impairment; …
‘social support’ means support from a person trained or
experienced in assisting people to engage in social
situations; …
‘supervision’ means the continuous presence of another
person for the purpose of ensuring C’s safety; …
‘unaided’ means without –
(a) the use of an aid or appliance; or
(b) supervision, prompting or assistance.”
14. There is no definition of “engaging with other people face to face” or of
“engage”. As can be seen, Part 1 provides, instead, a definition of “engage socially”,
a term which does not appear anywhere else in the Schedule. It is thought that this
is an error, arising when Activity 9, which was originally entitled “engaging
socially”, was refined following consultation on the provisions. The settled position
in the tribunals (endorsed by the Court of Appeal in Hickey v Secretary of State for
Work and Pensions [2018] EWCA Civ 851; [2018] 4 WLR 71, para 9) is that factors
set out in relation to “engaging socially” are nevertheless relevant to the
consideration of a person’s ability to engage with other people face to face, and there
does not appear to be any reason to disrupt that approach.
The context in which the present issues arise
15. The respondent is a man in his forties. He made a claim for PIP relying, inter
alia, upon the effects that his mental health has upon his ability to engage with other
people. When his claim was refused because he had not been awarded the required
eight points, he appealed unsuccessfully to the First-tier Tribunal (“FTT”). A central
issue in the appeal was the number of points that should be attributed to him under
Activity 9. The FTT considered that the decision maker had correctly found him to
Page 9
fall within descriptor 9b (prompting), rather than 9c (social support). Explaining
this, the FTT Judge simply said:
“Two points have been awarded in respect of 9b. From the
activities of daily living and our findings in fact above we
consider that this is the appropriate descriptor. The appellant
did not require social support as defined to be able to engage
with other people nor did engaging with other people cause him
overwhelming psychological distress or to exhibit behaviour
which would result in a substantial risk of harm to himself or
another person. Two points are due as awarded.”
16. The respondent appealed to the Upper Tribunal, contending that he should
have been awarded four points under 9c, which would have qualified him to receive
PIP. The appeal was allowed on the basis that the FTT had given an inadequate
explanation of why 9b had been selected rather than 9c, and that it had failed to
make adequate findings of fact going to that issue. The Upper Tribunal judge
remitted the case to the FTT for rehearing, providing directions as to how the
tribunal should approach Activity 9. The essence of the directions might be said to
be as follows:
i) what is envisaged as “social support” is “emotional or moral support”
“and perhaps also physical support”, and “other interventions which could
include everything in the definition of prompting provided it can only be
accepted by the claimant if given by a qualified person”;
ii) qualified people are those who are “trained or experienced in assisting
people to engage in social situations” and friends or family can come within
that category;
iii) the qualified person needs to be “present or available” to provide the
support.
17. The Secretary of State appealed to the Inner House of the Court of Session.
The Upper Tribunal’s decision to set aside the FTT’s determination and to remit the
matter for rehearing was not challenged, but the directions which were to govern the
FTT’s approach were. The grounds of appeal were that the Upper Tribunal should
have directed the FTT that the social support must be contemporaneous with the
social engagement being supported, and that social support requires something more
substantial than prompting.
Page 10
18. The Inner House refused the appeal. It rejected the argument that the support
had to be contemporaneous with the social engagement, considering that there might
be situations in which a qualified person could provide sufficient support in
anticipation of the claimant meeting people face to face, without the supporter
actually having to be present during the meeting. However, although there was, in
the Inner House’s view, no justification for a requirement that the support must be
given during or immediately before the engagement, there did have to be “a
‘temporal or causal link’ of some sort between the help given and the activity in
respect of which the help is needed” (para 51 of the Inner House’s opinion).
19. As to the nature of “social support”, the Secretary of State’s position was
encapsulated by the Inner House in this way (at para 53 of its opinion):
“the exercise suggested is, in effect, to treat ‘prompting’ and
‘social support’ as mutually exclusive, deduct everything that
amounts to ‘prompting’ and see what, if anything, you are left
with which, if sufficient in quantity, might amount to ‘social
support’.”
This approach had found favour with a number of Upper Tribunal judges (in
CPIP/1861/2015 UKUT(AAC) (unreported) 12 April 2016; CSPIP/203/2015 and
CSPIP/210/2015 UKUT (AAC) (unreported) 11 March 2016; AH v Secretary of
State for Work and Pensions [2016] UKUT 276 (AAC); EG v Secretary of State for
Work and Pensions [2017] UKUT 101 (AAC)).
20. In the view of the Inner House, however, the Secretary of State’s approach
failed to recognise the potential for overlap between the “prompting” and the “social
support” categories (para 54 ibid). It held that they are not mutually exclusive
categories. As the Inner House saw it, the critical distinction between descriptor 9b
prompting and descriptor 9c support lay not in a difference in the nature of the help
provided but in the fact that, with social support, there is a necessity for the help to
come from a person trained or experienced in assisting people to engage in social
situations (para 55). Having given the example of psychological support given by
someone trained in psychology, which would clearly count as “social support”, it
went on to say:
“But there may be cases where the support is in the nature of
encouragement or explanation but, because of the claimant’s
mental state, will only be effective if delivered by someone
who is trained or experienced in delivering that type of support
to that individual. In such a case there will not be a qualitative
difference in the help given, but the help can be regarded as
Page 11
‘support’ because of the necessity for it to be provided by
someone trained or experienced in delivering it.”
21. The Inner House slightly modified the Upper Tribunal judge’s direction to
the FTT, setting out its own formulation, at para 56, as follows:
“Encouragement or any other sort of prompting can qualify as
‘social support’ if, to render it effective or to increase its
effectiveness, it requires to be delivered by someone trained or
experienced in assisting people to engage in social situations.”
22. The case was remitted to the FTT for determination in accordance with the
guidance given in the Inner House’s opinion. The Secretary of State then appealed
to this court, challenging the Inner House’s interpretation of “social support”
(termed by the parties “the qualitative issue”), and its conclusion that it need not be
contemporaneous with the engagement being supported (“the timing issue”).
23. The respondent, who made his claim for PIP in February 2015, meanwhile
continues to await the factual findings and ruling in the FTT that is necessary to
resolve whether or not he is entitled to any payment. He maintains that the Inner
House’s ruling is substantially correct.
24. Mind was given permission to intervene and has provided helpful
submissions, both in writing and orally. It considers the respondent’s position in
relation to the timing issue to be correct, but invites the court not to decide that issue,
on the basis that it is unnecessary and undesirable to do so in the circumstances of
this case. It concentrates its submissions on the qualitative issue, aligning itself with
the respondent and the courts below.
The Secretary of State’s argument: the qualitative issue
25. Contrary to the position taken below, in this court the Secretary of State
accepts that “social support” for the purposes of descriptor 9c may consist of
“prompting”, but submits that the prompting involved in social support is different
by virtue of the fact that, in accordance with the definition of “social support”, the
support needed has to be support “from a person trained or experienced in assisting
people to engage in social situations”. If “a person trained or experienced” were to
be narrowly construed, denoting someone who has such training or experience by
virtue of their professional training or occupational history, there would be no
difficulty in identifying situations within 9c, but the Secretary of State adheres to
the assurance given during the consultation process that a friend or family member
Page 12
who knows the claimant well, and can offer support, can also be included as a
relevantly “experienced” person. So, the Secretary of State submits, the key feature
that distinguishes “social support” is that, as it is put in the written case:
“the help needs to be given by [the] trained or experienced
person by reason of their training or experience. Familiarity is
not enough.”
26. The Secretary of State’s concern (as articulated in the written case) is that the
Inner House’s direction risks generating confusion:
“between the persons who require support from a person
because of their relevant experience (which might include
experience gained in the course of being friends or family), and
those who require support from a friend or family member
solely because of that relationship … It is very common for a
person to only respond well to someone they know and trust.
However, the need for help from someone familiar or trusted
on its own does not turn prompting into social support.”
27. There will be a qualitative difference, the Secretary of State says, in the help
given by a helper using his or her training or experience as opposed to other help.
The trained or experienced person will understand what is lacking in the claimant’s
social engagement and be able to overcome this, or enable the claimant to do so,
whereas an inexperienced person would not necessarily be able to see what was
lacking, anticipate a difficulty, or know how to remedy it.
Discussion: the qualitative issue
28. The difference between the Secretary of State’s interpretation and that of the
Inner House (supported by the respondent and the intervener) is somewhat nebulous,
and appears as if it might, in fact, be limited. Rather than risk confusing the issue by
indulging in a comparison of the two positions, it might be better to return directly
to the text of Activity 9.
29. It is well to bear in mind, when considering the ambit of the various limbs of
Activity 9, that “engaging with people face to face” is an activity that can take many
differing forms. As was pointed out in the course of oral argument, face to face
interactions will range from engagements such as formal interviews and medical
examinations to establishing and furthering close personal relationships. Similarly,
Page 13
the sort of assistance that enables the engagement to occur will take many differing
forms.
30. The obvious starting point, in determining which of the Activity 9 descriptors
applies, is to establish what help the particular person needs in order to be able to
engage with other people face to face, remembering that this is not about the help
the person is actually receiving, but about the help that they need, although the one
may of course inform the other. It is worth stressing that the provisions are not
concerned with support that the person would like to have, or would appreciate as
generally comforting; the particular support has to be needed to enable the activity
to take place.
31. Having assembled the facts in this way, one can start to consider whether the
help needed is of a type that falls within the ambit of “social support” for the
purposes of descriptor 9c. Early in the oral argument, the Secretary of State sought
to confine the scope of “social support” by adopting a rather technical construction
of the Activity 9 descriptors. The starting point was that descriptor 9a concerns a
person who “can engage with other people unaided”. The submission flowing from
this had the following elements:
i) it can be inferred that, in contrast to those within 9a who can manage
“unaided”, claimants falling within 9b and 9c all need to be “aided”;
ii) “aided” is a term defined in Part 1 of the Schedule (see para 13 above),
and involves the use of an aid or appliance, or supervision, prompting or
assistance;
iii) so 9b and 9c claimants will all require aid in one of these forms;
iv) and other forms of support are therefore irrelevant in considering what
is meant by “social support” in 9c.
32. There are difficulties with this proposed interpretation, but there is nothing
to be gained in elaborating them. It suffices to say that, in my view, such a narrow
and technical approach would introduce an unwarranted limitation of the broad word
“support” which has been used in descriptor 9c. This would be inconsistent with the
government’s objectives in introducing the new disability benefit provisions,
including PIP, which included simplifying matters, and creating a benefit that was
easier to understand, and reached those in need of extra support to live independently
and participate in everyday life. In practice, support might take many forms,
responding, no doubt, to the varied needs of claimants, and the varied forms of face
Page 14
to face engagement. The examples provided by Mind underline the wide variation
in the help people have/require in order to engage with other people. Prompting is
one form of support, as is now accepted, but there will be other forms, and they may
well not fall within the definition of “aided”. The “use of an aid or appliance” might
not often be relevant, “supervision” is about ensuring safety rather than directed at
Activity 9, and the only other form of aid included in the definition is “assistance”
which means “physical intervention … not includ[ing] speech”, and might play a
part, but is unlikely to sweep up all other available forms of support. I would
accordingly reject the argument that only support that falls within the definition of
“aid” is relevant, although acknowledging that a consideration of the various forms
of “prompting” and of the other sorts of aid identified in the Regulations could assist
in lending some colour to the concept of “support”.
33. I return, therefore, to the central question of what differentiates the claimant
who needs social support and is entitled to four points under descriptor 9c, from the
claimant who is only entitled to two points, because he or she only needs prompting
in the form covered by descriptor 9b. It is inherent in the scheme that, broadly
speaking, descriptor 9c reflects a greater degree of disability than descriptor 9b, so
attracting increased points. Responding to the greater degree of disability requires
the attention not just of “another person” (as in the case of “prompting” simpliciter),
but of “a person trained or experienced in assisting people to engage in social
situations”. That is what differentiates prompting for the purposes of 9b from
prompting which is social support for the purposes of 9c. And where the support
takes a form other than prompting, it will similarly only qualify for 9c if the claimant
needs it to come from a person so trained or experienced.
34. The Secretary of State’s anxiety that the provision will be taken to include
the sort of confidence-boosting and reassurance that occurs in most close
relationships can be allayed by keeping the focus very firmly on the twin
requirements of necessity and relevant training or experience. Applied in the
family/friends setting, 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/experience
of the helper upon which the claimant depends in order to enable the face to face
engagement with others to take place, not simply the close and comforting
relationship that may exist between the claimant and the helper.
35. Having dispatched the idea that “prompting” can never constitute “social
support”, the words of descriptor 9c, taken with the definition of “social support”,
clearly define the ambit of the category and distinguish it from descriptor 9b. There
is no need to complicate them. As the Inner House observed in para 55 of its opinion
(see the passage quoted at para 20 above), the nature of the support provided might
not differ between 9b and 9c. What brings the claimant into 9c rather than 9b is that,
to be able to engage with others, he or she needs that support to come from someone
Page 15
trained or experienced in assisting people to engage in social situations. As the Inner
House helpfully put it, the support “will only be effective if delivered by someone
who is trained or experienced”.
36. I would express a word of caution about the Inner House’s statement (at para
56) that help can qualify as “social support” if, “to render it effective or to increase
its effectiveness” (my italics), it requires to be delivered by a trained or experienced
person. It is useful to ask oneself what is required to render help “effective” in
enabling the social engagement to take place, as I have observed in my preceding
paragraph. But I cannot endorse the addition of the italicised words. Descriptor 9c
revolves around what the claimant “needs”, and “need” is not a relative term. The
claimant either needs or does not need trained/experienced help in order to be able
to engage with other people. If only trained/experienced help will be effective in
achieving the objective, the claimant can be said to need it. If what could be called,
for want of a better shorthand, “lay” help would enable the claimant to engage, the
claimant does not fall within 9c, but might fall within 9b. And, of course, if not even
trained/experienced help would work, the claimant might fall within 9d.
37. There will, inevitably, be cases in which it is not immediately evident
whether descriptor 9c applies, and it is only after scrutinising the facts particularly
carefully that the decision maker will be able to reach a determination. Although the
provision is concerned with the help the claimant needs, rather than with the help
which he or she is actually getting in practice, it seems likely that, in many
family/friends cases, someone will already be carrying out the supportive role in
face to face engagements. Where this is so, the assessment/decision making process
will be assisted by looking at the elements of the support that they actually provide,
how they have come to know what to do, whether or not the sort of help that they
provide could be provided by any well-meaning friend or family member, and what
additional help (if any) is required. Exploring these issues will no doubt be a
sensitive task.
38. Mind points out that people often struggle to convey the relevant information
or they put it in terms which are misunderstood. Claimants are likely to be handling
their applications for PIP themselves, or with assistance only from family and
friends. Here, for example, the respondent and his partner attended the hearing
before the FTT, both gave evidence, and the partner acted as the respondent’s
representative. During the application process, whether it be upon the first request
for payment or in the tribunal system upon appeal, it may be necessary to probe what
is being said in support of the claim so as to establish the elements of the help that
is required to enable the face to face engagement to take place and the characteristics
of the person who will need to provide it in order for it to be effective. By way of
example, if a claimant says, “I need to have someone I trust with me when I meet
people face to face”, a number of questions are likely to be required to follow this
up, and to determine whether the claimant comes within descriptor 9b or 9c.
Page 16
Everything will depend on the facts of the particular case, but they might include
questions (sensitively put, of course) such as “why is that?”, “who would you trust
in that role?”, “what sort of things could they do to help you engage?”, “how would
they know what to do?”, “what would happen if that person was not there?”
The Secretary of State’s argument: the timing issue
39. The Secretary of State submits that social support needs to be
contemporaneous with the face to face engagement being supported, and that it does
not include help provided in advance of it. The contrary interpretation would,
submits the Secretary of State, leave matters so open that it would inevitably
generate inconsistencies and arbitrariness in decision making. The reasons given in
support of the narrow approach include:
i) The assessment is “a calibration of the claimant’s functional
limitations at the date of the claim with the application of the qualifying
periods”; it is an assessment of actual disability during the activity.
ii) Descriptor 9c uses the present tense: “needs”. This suggests presence
during the activity, for example to do the reminding, encouraging or
explaining involved in “prompting”.
iii) Supporting the face to face engagement requires that the supporter
perceives the full context of the engagement and has the ability to react to
what is done by the person with whom the claimant is seeking to engage.
iv) Descriptor 9c is concerned with an intensity of need on the part of the
claimant (as reflected in the need for a trained/experienced supporter) which
is such as to make it unrealistic to contemplate sufficient support being given
without the supporter actually being present during the engagement.
v) Social support would be in an anomalous position if it could occur in
advance of the engagement, whereas other descriptors require support to be
contemporaneous. The Secretary of State invites comparison with, for
example, communication support (relevant to Activity 7) which it is
submitted would, by its nature, have to be provided at the time of the
communication.
vi) It would be very difficult to apply the provision if support in advance
would qualify. How would the moral, social and emotional support which is
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an ordinary incident of family relationships and friendships, be distinguished
from assistance that would qualify for 9c?
vii) As for psychological support, the Secretary of State would say that it
is not within the scope of social support at all, but if it were, the problem
would be to know how far back one should go, and whether to include
counselling sessions the day before the engagement, or a week before, or a
year before.
Discussion: the timing issue
40. It might be helpful to consider the timing issue having in mind some
examples of the practical ways in which a person can be helped to engage face to
face with others. Given that no findings of fact have yet been made in relation to the
respondent’s circumstances, it is desirable to avoid focusing particularly on him, but
in the course of his counsel’s submissions, examples were given of the sort of
support that an experienced family member might give. Preparation might occur
prior to the engagement which enables it to occur without, for example,
overwhelming psychological distress. One technique that can be deployed is to look
together, in advance of the meeting, at the “worst case scenario”. During the
meeting, with knowledge of the claimant, the supporter can watch out for things that
are known to trigger his or her anxiety, and redirect the conversation. Where
memory is a problem, the supporter can remind the claimant of things they have
forgotten. Private signs of reassurance can be given where required. And, where
required, the supporter might recognise the need to remove the person from the
meeting.
41. It is important to remember that each claimant is an individual with individual
needs, and that different techniques might help in different cases, or at different
times in the life of the same person. It seems to me that the Secretary of State’s
insistence on it being necessary for the supporter to be present with the claimant
during the face to face engagement would stand in the way of other means of support
which work for the particular claimant, and would also be likely to impede attempts
to improve the claimant’s abilities to handle matters without support at all, or with
diminished support. It is not difficult to contemplate a situation in which the trained
or experienced supporter is aiming to make progress so that a claimant, who initially
cannot manage without the supporter physically present during the face to face
engagement, learns in stages to manage with the supporter at the door of the room,
next door, leaving the building for a short period during the meeting, bringing the
claimant to the meeting and collecting him after it, and so on. Discussion before
(and possibly after) engagements, and also practical exercises, might be deployed,
in order to equip the claimant to deal with encounters without the physical presence
of the supporter. At some point in the progress, the claimant will cease to qualify
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under 9c, but, looking at things entirely practically, rather than legalistically, it
would be hard to say that, in all cases, from the moment in the continuum when the
supporter is no longer in the room with the claimant, he no longer needs social
support to be able to engage with people.
42. It is also relevant to consider the sensitivity of some of the face to face
engagements that a claimant may need to undertake. Social support by physical
presence with a claimant during a medical examination, or what was called during
the hearing “a romantic engagement”, might be counter-productive, whereas social
support which did not involve actual presence might enable the claimant to engage
when that would not otherwise have been possible. For example, it is easy to
contemplate that the claimant and the experienced supporter might have a discussion
in advance of a medical examination, going through every element of the procedure
and exploring how the claimant might respond to it, the claimant might then allow
him or herself to be accompanied to the door of the consultation room and given
into the care of the doctor or nurse, and the necessary continuing reassurance might
come from the knowledge that the supporter was nearby in the waiting room.
43. It is undesirable to construe the provision in a way that runs counter to these
sorts of considerations, unless that is dictated by the provision itself, or by something
in its legal context. There is nothing in the wording of descriptor 9c, or the definition
of “social support”, to require actual presence of the supporter during the
engagement, nor yet to require that the support is timed to coincide with the
engagement, rather than being provided in advance, or indeed afterwards. The use
of the present tense (“needs”) does not carry the Secretary of State this far. It does
dictate that the claimant actually needs the support “as respects every time” over the
course of the 12 months made relevant by the required period condition (see para 9
above). The need has to be a continuing one, not one that has been addressed or
otherwise ceased, and I would certainly agree with the Inner House when they said
(para 49) that descriptor 9c (and for that matter descriptor 9b) would not apply to a
case:
“where, as a result of a successful psychiatric or psychological
intervention in the past, the person being assessed was now able
to engage with other people satisfactorily and without further
help. He would not be able to say, on the strength of that
previous intervention, that he continued to fall within Activity
9, descriptor c.”
But the requirement that there should be a current need at all relevant times does
not, of itself, exclude the possibility of assistance given outside the confines of the
engagement itself. This is perhaps most easily demonstrated by an example: if social
support includes, say, advice and discussion prior to a face to face engagement, it
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could perfectly properly be said of a claimant, who can only engage if that sort of
help is provided, that he “needs social support”. The Secretary of State’s
interpretation would only be made out if “social support” is confined to that which
is provided on the spot, and there is nothing in the definition of it to confine it in that
way.
44. In the absence of express wording dictating contemporaneity, the Secretary
of State’s argument must depend upon inferences drawn from elsewhere in the
Regulations and/or from the likely circumstances of claimants.
45. Comparisons with other daily living activities where presence is required
during the activity are unhelpful, in my view, because all the various activities are
different in nature, and the ways of overcoming difficulties in carrying them out will
inevitably be different. Nor am I persuaded by the submissions based upon the
intensity of the claimant’s need and the supposed need for the supporter to perceive
and react to the engagement as it unfolds. Sometimes these factors will dictate that
the supporter can only provide effective help if actually present, but I see no reason
to assume that this will always be the case, and no reason to limit the scope of
descriptor 9c so as to exclude cases where support is required from a person trained
or experienced in assisting people to engage in social situations but which do not
fall within this model.
46. In short, I do not consider that descriptor 9c is limited to cases where a
claimant needs social support actually during the face to face engagement. Given
that social support is likely to take many different forms, depending on the
individual needs of the claimant, it is undesirable to attempt to prescribe, in the
abstract, which other forms of support will be sufficient. It will be a question of fact
and degree, and is something that will have to be worked out on a case by case basis,
by those with expertise in making assessments and decisions in relation to claims,
keeping the wording of the provision firmly in mind. I am hopeful that it will prove
possible to do this without the Secretary of State’s fears of inconsistent and arbitrary
decisions being realised.
47. Before concluding, I should say something about the Inner House’s
acceptance that what was required was a “‘temporal or causal link’ of some sort
between the help given and the activity in respect of which the help is needed” (para
51). This is not a formulation that should, in my view, be adopted. A detailed
explanation of why not is unlikely to be of assistance, and one illustration of the
problem will perhaps suffice. The formulation contemplates two separate ways in
which the requisite link could exist, expressed as alternatives, namely a link by
virtue of timing (“temporal … link”) and a link by virtue of being instrumental in
securing the engagement (“causal … link”). It is difficult to envisage how support
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which is linked in time to a face to face engagement but has no causal link to what
occurs could have any relevance.
48. Sometimes, explaining and elaborating upon a provision confuses rather than
assists, and this might be one of those situations. The answer is more likely to be
found, in any given case, by close attention to the words of descriptor 9c, as defined
in the Regulations, and to the required period condition. This exercise, paying close
attention in particular to the requirement that the claimant “needs” the support (see
para 43 above), should serve to confine the scope of descriptor 9c within appropriate
time boundaries.
Conclusion
49. I would allow the appeal in the limited sense that I would interpret the
relevant legal provisions slightly differently from the Inner House, as I have
explained above.