Social Security Case Law - Spring 2025

Headnote

When considering Activity 9 ‘Engaging with other people face to face’ it is important to look beyond the skills exhibited in appellant’s employment.

Background

The appellant made a new PIP claim in February 2022 due to their ongoing health issues, which included anxiety, depression, fibromyalgia and chronic regional pain syndrome. She received a decision in June 2022, scoring 6 points for the Daily Living Component and 0 points for the Mobility Component. The outcome remained unchanged after mandatory reconsideration and the claimant submitted an appeal to the First-Tier Tribunal. In November 2023, the Tribunal panel confirmed the Secretary of State’s decision. Following the First-Tier Tribunal’s decision, the claimant has made an application to the Upper Tribunal.

Legal Issue

The claimant submitted three possible grounds for the Upper Tribunal to consider whether an error of law had occurred:

• The First Tier Tribunal had refused a request from the appellant to adjourn and proceeded in their absence.
• That there were insufficient findings of fact and adequate reasons relating to the appellants ability to complete Activity 9, ‘Engaging with other people face to face’.
• The Tribunal has misdirected itself by interpreting Regulation 4(2A) of the PIP Regulations.

Decision

The Judge allowed the appeal and remitted it to a freshly constituted First Tier Tribunal panel, holding that two of the grounds raised by the appellant were sufficient to be held an error of law.

• Activity 9 ‘Engaging with other people face to face’

The Upper Tribunal found the FTT had failed to consider how the appellant could engage ‘generally outside the work environment’ and whether she could do so to an acceptable standard in accordance with Regulation 4(2A). It was held that the FFT failed to make sufficient findings as to whether the appellant could complete this activity in a contextually and socially appropriate manner. The Judge referred to the decision in HA v SSWP (PIP) [2018] UKUT 56 (AAC):

Assessors must decide whether the claimant can “(a) interact with others in a contextually and socially appropriate manner; (b) understand body language; and (c) establish relationships” when assessing activity 9. The Upper Tribunal accepted that presumptions can be made about a claimant’s ability to engage socially based on their employment. However, they stressed this should be limited to ‘relevant and genuinely comparable activities.’

• Regulation 4(2A)

The Judge considered the FTT’s comment on Parliament’s exclusion of pain or discomfort from the PIP legislation to be a ‘problematic starting point.’ The Judge referred to the case CPIP/2377/201, which held that pain, its severity, frequency and nature “are relevant to the question of whether a claimant can complete a mobility activity descriptor ‘to an acceptable standard’…” On this basis, the Judge found the FTT to have erred in law, as they failed to properly consider how pain affected the appellant’s ability to perform a PIP activity in accordance with Regulation 4(2A).

• Procedural errors

The Judge did not believe the FTT tribunal made an error when deciding to proceed in the absence of the appellant as it gave sufficient reasons for its decision including the number of previous adjournments.

Relevant Legislation

• Social Security (Personal Independence Payment) Regulations 2013
• Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008

Relevant Case Law

• HA v SSWP (PIP) [2018] UKUT 56 (AAC).
• CPIP/2377/2015
• PS v SSWP [2016] UKUT 0326 (AAC)
• LB v SSWP [2024] UKUT 338 (AAC)
• MA v SSWP [2009] UKUT 211 (AAC) (CA/1546/2009)