This case concerned the application of one of the criteria for Personal Independence Payment: ‘Engaging with other people face to face’, a type of need that occurs most commonly amongst those with mental health needs and/or neurodevelopmental conditions (such as Autism).
This update to our original case write-up, added in late 2020, refers people to the ‘trawl’ that has been announced by the DWP to provide retrospective repayment: we have taken this directly from the Disability Rights UK site here and recommend using their links as well:
It is likely that it will consider PIP decisions made between the 6 April 2016 – the date from which the ruling applies – and 17 September 2020 – the date from which the DWP says that it has been following the Supreme Court ruling.
Those refused PIP previously and who benefit from the Supreme Court judgment may be owed several thousands of pounds in arrears.
While the DWP says that the procedure for its case review will be finalised after consultation with stakeholders, it has issued the following FAQ responses:
“What will this mean for current PIP claimants?
Where claims are reviewed, as part of the administrative exercise, and this leads to an increase in the PIP award, claimants will receive backdated payments to the effective date in each claim. This will usually either be the date of the start of their PIP award, or the date of the UT decision, whichever is the later.
What will this mean for PIP claimants who have previously been disallowed PIP?
We will be checking claims which have been disallowed after the Upper Tribunal’s decision on 6 April 2016 to see if they are within scope for inclusion in the exercise.
If claimants were disallowed PIP before the UT decision on 6 April 2016, their disallowance decision will not be reviewed. If they think the MM judgment may apply to their claim, they should consider making a new PIP claim.
What about claims where the DWP’s award has been appealed? What about claimants who have appealed their PIP claim and their award was decided by a tribunal?
“We do not have the power to change decisions made by a Tribunal on the basis that their decision is wrong in law. Therefore, we do not plan to review cases where the award decision was made by a Tribunal.
If claimants feel that they are affected by the Supreme Court judgment, they can ask us to review their claim at any point and this may result in a supersession of their PIP award.
If a claimant’s needs arising from their health condition or disability have changed since their award was decided by a tribunal and they think they are affected by MM, they will need to ask for their claim to be reviewed as a Change of Circumstances.”
For more information see Personal Independence Payment (PIP). Implementation of legal judgment MM: frequently Asked Questions (FAQ) available from parliament.uk.
Benefits and Work have a 7 minute video explainer of the DWP case trawl review together with a video transcript available from www.benefitsandwork.co.uk.
The case itself
The two central issues were:
(1) What “social support” means and how it differs from “prompting”
(2) Whether “social support” only covers help given during an interaction or whether help given in advance is also relevant.
The criterion is represented below.
Activity 9: Engaging with other people face to face
Descriptor 9b: Needs prompting to be able to engage with other people (2 points)
Descriptor 9c: Needs social support to be able to engage with other people (4 points)
The Decision of the Court
It is inherent to the structure of PIP that, broadly speaking, each descriptor reflects a greater degree of disability than the previous descriptor.
The Social Security (Personal Independence Payment) Regulations 2013 (“the Regulations”) Schedule 1 defines ‘social support’ as:
“support from a person trained or experienced in assisting people to engage in social situations”
It was the training or experience required by the supporter rather than the nature of the support itself which differentiated ‘prompting’ in 9b from ‘social support’ in 9c. A need for support from any person (including a friend or family member) could qualify as ‘social support’, but only where it was necessary (rather than merely desirable) for the support to be provided by a person with relevant training or experience (rather than merely any person with whom the claimant was familiar or had a positive relationship) could it count for 9c purposes [paras. 33-35]. Thus the
“twin requirements of necessity and relevant training or experience” [para. 34]
differentiated between “social support” and “prompting”, even though
“the nature of the support provided might not differ between 9b and 9c” [para. 35].
(2) Lady Black dismissed the Secretary of State’s argument that only a need for support to be provided face to face during the engagement itself could satisfy a relevant descriptor. In her view, such a narrow construction of ‘support’ 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.”
She also pointed to the wide range of types of interaction included and identified that the physical presence of a supporter may be inappropriate and/or counter-productive in such sensitive situations as a medical examination or romantic encounter.
It was fundamental to the requirements for PIP eligibility that the claimant’s condition must be relatively long-term or permanent (lasting at least 12 months) and that each specific need must be present at least 50% of the time. The need itself must, therefore, be a continuing need (rather than a past need from which the claimant has recovered or is improving), however:
“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.” [para.43]
Lady Black resisted the temptation to specify in more detail the types, nature, timing or duration of support which would or would not be sufficient to meet a descriptor and decided that reading in a need for a temporal or causal link between the support and the engagement was incorrect. ‘Need’ was not a relative term. If only trained or experienced help would be sufficient for the claimant to be able to engage with other people face to face, then they would satisfy 9(c) “social support”. If any familiar, well-meaning but inexperienced support would do, then they would not (although 9(b) might still be satisfied). She concluded:
“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.” [para. 46]
In practice, of course, short of their case being considered in detail by the Supreme Court, most claimants will have to take their chances as to the expertise and knowledge of the wording of the provision of the particular assessor and decision-maker assigned their claim. Nevertheless, this judgement should be of assistance (at least at FTT level) in clarifying that the support is needed by many individuals with relevant needs where it has perhaps been denied before.
Although this case originated in Scotland, this criterion is exactly the same in England.