Factual and Procedural Background
By a decision letter dated 23 August 2014, the respondent decided that the appellant did not meet the statutory criteria for a Personal Independence Payment ("PIP"). The appellant appealed, but on 21 August 2015, the First-tier Tribunal ("FTT") rejected her appeal. Subsequently, on 20 May 2016, the Upper Tribunal ("UT") refused the appeal against the FTT's decision. The appellant then pursued a further appeal to this court, raising issues concerning the interpretation of the Social Security (Personal Independence Payment) Regulations 2013 and the binding nature of decisions by the Inner House of the Scottish Court of Session ("the Inner House"). The appeal focuses on the daily living component of PIP, specifically on the appellant's ability to engage with others face to face, and the correct interpretation and application of descriptors related to social support and prompting.
Legal Issues Presented
- Whether the court is bound by the decision of the Inner House in relation to the interpretation of descriptors under the PIP Regulations, particularly concerning the overlap between 'prompting' and 'social support'.
- Whether the appellant's need for social support under descriptor 9(c) was correctly assessed, or whether the need for prompting under descriptor 9(b) was appropriate.
- Whether support given immediately before social engagement (not contemporaneous with it) can qualify as social support for the purposes of descriptor 9(c).
- Whether the FTT and UT erred by failing to consider the appellant's ability to establish relationships as part of the assessment under the definition of 'Engage Socially'.
Arguments of the Parties
Appellant's Arguments
- The appellant contended that the FTT and UT incorrectly assumed that the acts constituting social support must be qualitatively different from prompting, relying on the Inner House decision in MMcK to argue that prompting done by a person experienced in social support qualifies as social support under descriptor 9(c).
- The appellant argued that support given immediately before face-to-face engagement should be considered relevant, challenging the UT's narrower interpretation of contemporaneity.
- The appellant claimed that the tribunals neglected to consider whether she was able to establish relationships, which is part of the definition of 'Engage Socially', potentially qualifying her for descriptor 9(c).
Respondent's Arguments
- The respondent maintained that prompting and social support are conceptually distinct, with prompting not constituting social support.
- They argued that only support contemporaneous with the social engagement is relevant, rejecting the appellant’s argument on support given prior to engagement.
- The respondent disputed that the appellant was unable to establish relationships and maintained that the FTT and UT correctly assessed the appellant's ability in this regard.
- They also emphasized that the appellant had accepted the score for activity 9 in earlier submissions, undermining later challenges.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| AM v SSWP [2015] UKUT 215 (AAC) |
Interpretation of 'Engage Socially' for activity 9 in PIP assessment. |
Accepted as authority that the definition of 'Engage Socially' applies to activity 9 despite drafting inconsistencies. |
| HJ v SSWP [2016] UKUT 0487 (AAC) |
Approach to social support and prompting under descriptor 9. |
Used to support the interpretation of descriptors and evidential requirements. |
| SL v Secretary of State for Work and Pensions [2016] UKUT 0147 (AAC) |
Definition of 'social support' to include family or friends with experience. |
Confirmed evidential requirements regarding the experience of support providers. |
| CPIP/1861/2015, UTJ West |
Qualitative difference between 'prompting' and 'social support' and temporal link required. |
Supported the view that social support involves more than prompting and must have a causal or temporal link. |
| CSPIP/203/2015 and CSPIP/210/2015, UTJ Parker |
Definition of 'social support' as active intervention beyond prompting. |
Clarified that social support requires more substantial help than prompting to enable social engagement. |
| EG v SSWP [2017] UKUT 101 AAC |
Application of social support and prompting distinctions. |
Adopted the approach distinguishing social support from prompting. |
| JD v SSWP CPIP/184/2016 |
Further application of social support principles. |
Supported the established distinction and evidential requirements. |
| The Secretary of State for Work and Pensions v MMcK [2017] CSIH 57 |
Overlap and contemporaneity of 'prompting' and 'social support'. |
Held that prompting and social support are not mutually exclusive; social support may include prompting if delivered by a trained or experienced person and is necessary. |
| Young v Bristol Aeroplane Co Ltd [1944] KB 718 (CA) |
Co-ordinate jurisdiction between courts. |
Discussed in context of whether this court is bound by decisions of the Inner House. |
| Marshalls Clay Products Ltd v Caulfield & Others [2004] EWCA Civ 422 |
Jurisdictional boundaries between courts of coordinate jurisdiction. |
Distinguished from current case to argue that the Inner House decision is not binding on this court. |
| The Secretary of State for Work and Pensions v Deane [2010] EWCA Civ 699 |
Requirement for compelling reasons to depart from precedent. |
Referenced in argument about deference to Inner House decisions. |
| Willers v Joyce [2016] UKSC 43 |
Standards for departing from precedent. |
Referenced analogously regarding respect for Inner House decisions. |
| Gover v Propertycare Limited [2006] EWCA Civ 286 |
Scope of appeal court jurisdiction constrained by grounds of appeal. |
Applied to emphasize limits on grounds of appeal and permission requirements. |
Court's Reasoning and Analysis
The court began by outlining the statutory framework for Personal Independence Payment (PIP), focusing on the daily living component and the system of scoring based on descriptors of ability to carry out daily living activities. It noted the distinction between descriptors 9(b) (prompting) and 9(c) (social support), and the relevant definitions and interpretations as developed in prior tribunal and court decisions.
The court acknowledged the Inner House decision in MMcK, which held that prompting and social support are not mutually exclusive categories, and that prompting may constitute social support if delivered by a trained or experienced person and necessary for effectiveness. The court assumed, for the sake of argument, that MMcK correctly stated the law.
However, the court found that the factual findings of the FTT were decisive. The appellant's friend, who provided support, was not shown to have the requisite experience or training to qualify as a provider of social support under descriptor 9(c). There was no evidence that the friend was involved in all face-to-face engagements or that the support was anything more than prompting. The court emphasized that the appellant had previously accepted the score of 2 points for activity 9, corresponding to prompting, and only belatedly challenged this.
The court rejected the appellant's argument that support given immediately before social engagement should be considered, finding no evidence that such support existed or was relevant. The court also dismissed the contention that the FTT and UT failed to consider the appellant's ability to establish relationships, holding that the tribunals had properly considered the appellant's social engagement in the round and found she was able to establish relationships.
Procedurally, the court criticized the appellant's late and piecemeal development of grounds of appeal, noting that the appellant had not raised these points at earlier stages and had failed to provide necessary evidence or properly frame the issues before the tribunals. The court underscored the importance of procedural rigour and the need for appellants to clearly identify grounds of appeal supported by evidence at the appropriate stage.
Accordingly, the court concluded that even accepting the legal propositions advanced by the appellant, the appeal failed on the facts as found by the FTT and upheld by the UT.
Holding and Implications
The court's final decision was to DISMISS the appeal.
The direct effect of this decision is that the appellant remains ineligible for the daily living component of the Personal Independence Payment at the enhanced rate under descriptor 9(c), and the award based on descriptor 9(b) stands. The court did not set any new precedent, as it declined to depart from or definitively rule on the legal issues arising from the Inner House decision in MMcK, given the factual circumstances of the case. This decision underscores the importance of clear procedural compliance and evidential support in welfare benefit appeals.