Introduction

The case of EG v. Secretary of State for Work and Pensions (PIP) [(2017) UKUT 101 (AAC)] addresses the intricacies of assessing entitlement to Personal Independence Payment (PIP) for individuals with hearing impairments. The appellant, a 25-year-old woman with moderate to profound hearing loss since early childhood, contested the decision of the First-tier Tribunal (FTT) which denied her sufficient points under the daily living activities related to verbal communication and social engagement.

This commentary delves into the Upper Tribunal's judgment, exploring the legal principles established, the analysis of previous cases, and the impact of this decision on future PIP assessments.

Summary of the Judgment

The Upper Tribunal (Administrative Appeals Chamber), presided over by Judge Gray, overturned the FTT's decision denying EG adequate points under Activity 7 (Communicating Verbally) and Activity 9 (Engaging with Other People Face-to-Face) of the PIP assessment criteria. Citing procedural errors and misinterpretations of the regulatory framework, the Tribunal remitted the case to a differently constituted panel for a fresh hearing. The decision emphasized the need for accurate application of descriptors without conflating different aspects of communication and social engagement.

Analysis

Precedents Cited

The judgment references several pivotal cases that influence the interpretation of PIP assessment criteria:

• MMcK-v-SSWP [2016] UKUT 0191(AAC): Highlighted issues regarding the presence and qualification of support persons during social engagements.
• GH-v-SSWP (PIP) CPIP/65/2016 (GH): Addressed the necessity for judicial oversight in complex cases involving communication impairments.
• HB-v-SSWP (PIP) [2016] UKUT 160 (AAC): Established that scoring under Activity 7 does not automatically necessitate additional points under Activity 9.
• TR-v-SSWP [2016] UKUT 626(AAC): Emphasized that any significant impairment in communication affects daily activities proportionally.
• PE-v-SSWP [2015] UKUT 309 (AAC): Discussed the importance of distinguishing between genuine need for assistance and personal choice in daily activities.

Legal Reasoning

Judge Gray meticulously dissected the FTT's approach, identifying flaws in how Activity 7 and Activity 9 were assessed. The Tribunal underscored that:

• Activity 7 (Communicating Verbally) should strictly assess verbal communication capabilities without conflating it with written communication or other forms of support like lip-reading.
• Activity 9 (Engaging with Other People Face-to-Face) should evaluate social engagement independently, focusing on the claimant's ability to interact in socially appropriate manners without undue reliance on support that overlaps with communication assistance.
• The FTT erred by incorporating visual and written communication abilities into the assessment of verbal communication, thereby distorting the true impact of her hearing impairment.
• Clarified the distinction between prompting and social support, emphasizing that the latter requires more substantial assistance beyond mere reminders or encouragement.

Impact

This judgment sets a critical precedent for future PIP assessments by:

• Reaffirming the necessity for clear differentiation between various daily living activities to ensure accurate disability assessments.
• Mandating that tribunals avoid conflating different types of support, thereby preserving the integrity of each assessment category.
• Highlighting the importance of considering the claimant's everyday environment and avoiding assumptions based on self-imposed adjustments due to disabilities.
• Potentially influencing policy amendments to provide clearer guidelines on communication support and social engagement assessments.

Complex Concepts Simplified

Activity Descriptors

Activity 7: Communicating Verbally assesses an individual's ability to express and understand verbal information without and with support. The descriptors range from complete independence (0 points) to total inability (12 points).

• Descriptor a: No need for aids; full verbal communication capability.
• Descriptor b: Requires aids or appliances (e.g., hearing aids) to communicate.
• Descriptor c: Needs communication support for complex information.
• Descriptor d: Needs communication support for basic information.
• Descriptor e: Cannot communicate verbally even with support.

Prompting vs. Social Support

- Prompting: Involves simple reminders, encouragements, or explanations without requiring specialized skills.

- Social Support: Entails assistance from trained or experienced individuals, providing more substantial help during social interactions.

Conclusion

The Upper Tribunal's decision in EG v. Secretary of State for Work and Pensions (PIP) underscores the necessity for precise and contextually accurate assessments in PIP evaluations. By delineating the boundaries between different daily living activities and emphasizing the qualitative differences in support mechanisms, the judgment ensures that claimants receive fair and appropriate evaluations based on their genuine needs rather than compensatory adjustments. This case serves as a pivotal reference for future tribunals, advocating for meticulous adherence to regulatory definitions and fostering a more equitable assessment framework for individuals with disabilities.