Social security case law

GM v. Department for Communities (PIP) [2021] NI Com 26 (C4/21-22)

Background

The claimant claimed PIP on the basis of needs arising from depression, alcohol and substance dependence, possible adult ADHD and right sided foot drop. His claim was refused and he appealed. The tribunal awarded the claimant six points for daily living, disallowing his appeal in respect of the daily living component. The tribunal allowed the claimant’s appeal in respect of mobility component, awarding the standard rate for three years. The claimant appealed to the Social Security Commissioner.

Legal issue

One of issues raised before the Commissioner was the tribunal’s interpretation of PIP Activity 9: Engaging with other people face to face.

The tribunal awarded the claimant two points for daily living Activity 9b:

‘Needs prompting to be able to engage with other people: 2 points’

It declined to award points under Activity 9c:

‘Needs social support to be able to engage with other people: 4 points’

On appeal to the Commissioner, the parties queried whether, in dismissing Activity 9c, the tribunal had applied the correct meaning of ‘social support’.

‘Social support’ is defined in Schedule 1 to the Personal Independence Payment Regulations (Northern Ireland) 2016 as:

‘support from a person trained or experienced in assisting people to engage in social situations.’

The Supreme Court in Secretary of State for Work and Pensions v. MM [2019] UKSC 34 confirmed that ‘social support’ includes support given by a friend or family member who knows the claimant well and can offer support. The Supreme Court also confirmed that ‘social support’ includes support given other than at the moment of face to face engagement.

In considering the claimant’s appeal, the tribunal adopted the definition of social support provided in Schedule 1 of the 2016 Regulations, rather than the wider interpretation accepted by the Supreme Court in MM.

Moreover, despite the claimant’s evidence that his partner left him to his health assessment, the tribunal decided that his unaccompanied attendance at the health assessment was inconsistent with his claim that he needed someone with him to make sure he was safe in a social environment.

Before the Commissioner, the Department submitted that by confining social support to a narrower meaning than that accepted by the Supreme Court, the tribunal had materially erred in law in its interpretation of Activity 9. The Department also submitted that the tribunal had not given reasons for dismissing the role of the claimant’s partner or that social support could be received prior to the event of face to face engagement.

Decision

The Commissioner agreed with the Department’s analysis of MM and agreed that the tribunal adopted a narrower definition of Activity 9c than the Supreme Court. The Commissioner further agreed that the tribunal erred in law.

The Commissioner noted that the tribunal’s choice of descriptor 9b rather than 9c was potentially material to the claimant’s case. If the claimant received the additional two points under descriptor 9c, it would increase his score for daily living above the threshold for entitlement.

The Commissioner allowed the claimant’s appeal and referred the matter to a new tribunal.

For a full copy of the Judgment: click here

In September 2021, the Department for Work and Pensions announced that it would be undertaking an administrative exercise to identify PIP claimants who might be affected by the Supreme Court’s judgment in MM.