PIP: How to get an award of 8 points for not being able to mix with other people because of the presence of a learning difficulty using case law to reinforce your Mandatory Reconsideration request or appeal submission.
What is the meaning of ‘engage with other people’ in activity 9 of the PIP descriptors and how should the regulations be interpreted if a claimant has a learning disability?
We have recently been helping a group member complete a mandatory reconsideration request in respect of a claim for Personal independence Payment where the assessor and the DWP decision maker appear to have paid little attention to how the presence of a learning disability changes the dynamics of engaging with other people.
In our case the claimant has Asperger's syndrome and whilst he can generally engage with other people in circumstances that he is familiar with, there is always an underlying chance that the interaction with other people may not go in the way that our group member is expecting or assuming it will.
The point of contention with the decision made by the DWP was that they had decided that the member could engage with other people because he regularly does have interaction with other people in predominantly supervised environment. What the assessor and DWP had not considered was whether the degree of social engagement that the member conducted was repeatable in any social context and whether the actions of other people to the members actions/behaviour could cause the member to become distressed to the point where social engagement would not be possible. Additionally they had not considered the frequency with which social engagement could be made impossible due to a lack of ability to interpret other peoples actions and body language.
In cases like these where it is clear that a group member has received an assessment that has not taken into account factors that are not immediately obvious or perhaps where a complex health condition is being assessed by individuals with little knowledge of how the condition may manifest itself, it is always useful to have a piece of previous case law that can be utilised to "encourage" the decision maker or judge to think carefully about the decision they are about to make.
With case in question, our search for some previous case law led us to the following case which had looked at the same factors as we were looking at;
UK/5205/2014 Meaning of ‘engage with other people’ in activity 9, and its interaction with regulations 4 and 7  UKUT 215 (AAC)
The claimant - who had Asperger's Syndrome and obsessive compulsive disorder - was awarded personal independence payment (PIP) at the standard rate of the mobility component from 25 June 2013 to 24 June 2015. He was also awarded 4 points because he required prompting to wash and bathe and to dress and undress in a timely manner.
A First-tier Tribunal awarded an additional 4 points for activity 1e as the claimant required supervision or assistance to prepare or cook a simple main meal, and 8 points for activity 9d on the basis that the claimant could not 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. Accordingly, it found him entitled to the enhanced rate of the daily living component.
The Secretary of State appealed to the Upper Tribunal
Issue before the Upper Tribunal
What is the meaning of to 'engage with other people' and how does activity 9 - engaging with other people face to face - interact with regulations 4 and 7 of the Social Security (Personal Independence Payment) Regulations 2013 (the Regulations).
Judge Mark dismissed the appeal finding that, although the claimant may score two fewer points than the tribunal awarded for preparing or cooking a simple main meal, he would still be entitled to the enhanced rate of the daily living component.
Judge Mark noted that, in assessing a claimants ability to carry out an activity, regulation 4 of the Regulations provides -
'(2A) Where C’s ability to carry out an activity is assessed, C is to be assessed as satisfying a descriptor only if C can do so –
(b) to an acceptable standard;
(c) repeatedly; and
(d) within a reasonable time period;
(4) In this regulation –
(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.'
Further, that regulation 7(1)(a) provides -
'The descriptor which applies to C in relation to each activity in the tables referred to in regulations 5 and 6 [respectively the scoring provisions for daily living activities and mobility activities] is –
(a) where one descriptor is satisfied on over 50% of the days of the required period, that descriptor;
(b) where two or more descriptors are each satisfied on over 50% of the days of the required period, the descriptor which scores the higher or highest number of points.'
Judge Mark then went on to consider descriptor 9d in the light of these 2 regulations.
Firstly, Judge Mark noted that while descriptor 9d addresses a claimant's ability to 'engage with other people' there is no definition of 'engage' in part 1 of Schedule 1 of the Regulations. Rather, there is a definition of 'engage socially' which is to mean '(a) interact with others in a contextually and socially appropriate manner; (b) understand body language; and (c) establish relationships'.
Judge Mark concluded that - as regulation 4 requires a person to be able to engage with other people to an acceptable standard - the factors set out in the surplus definition of 'engage socially' are relevant considerations even if the definition itself lacks meaning because the expression 'engage socially' is to be found nowhere else in the Schedule.
Secondly, Judge Mark addressed the conundrum of how an activity that is carried out safely and to an acceptable standard could result in a substantial risk of harm. He commented -
"The difficulty with this is that if the engagement is to be safe and to an acceptable standard, it is difficult to see how it would result in a substantial risk of harm to the claimant or another person. It is also difficult to see how it could apply to somebody who is unable to engage to an acceptable standard at all. There is no descriptor which awards points for such a total inability to engage as qualified by regulations 4 and 7.
Even if the claimant in such a case suffered overwhelming psychological distress in attempting to engage to the extent to which he or she was capable of doing so, if the engagement of which that person was capable was not to an acceptable standard, they could never score points under this descriptor. On balance it appears to me that it is necessary to construe descriptor 9d as referring to such engagement as he may be capable of but for such overwhelming distress or the relevant risks from such behaviour.'
The First-tier Tribunal in this case had found that, with more engagement with other people face to face than the relatively minimal engagement the claimant in fact undertook, he would be liable again to be verbally aggressive, with a substantial risk to his own safety. Accordingly descriptor 9d was satisfied.
Additionally, Judge Mark found that the First-tier Tribunal had not explained what physical assistance the claimant would need in preparing and cooking a meal and therefore, while he would clearly score 2 points for prompting, he may not score 4 points. However, this was immaterial to the final decision.
How can you use this case?
If you, or somebody you know has a learning difficulty and they find it difficult to interact or engage with other people to the extent that they regularly find mixing with other people distressing you can consider quoting this case law in a Mandatory Reconsideration letter or appeal submission statement.
Try to link the examples of occasions when mixing with other people has been difficult and distressing to content of this summary of the decision. Always refer to the decision by its full reference title as given in this article. It is also good practice to provide the recipient of you letter/submission statement with a copy of the case law, so why not send a copy of the downloadable version of this article (can be found in the members area of our website www.benefitadvice.org) with your letter.
Referencing previous case law in your appeal, will not guarantee that the decision goes in your favour, but it certainly won't harm your appeal and it will demonstrate that you have thought about why you believe a payment of benefit is correct.
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