PIP and ‘social support’

Issue 260 (October 2017)

Simon Osborne reviews recent caselaw about personal independence payment (PIP) and ‘social support’ when engaging with other people.

Introduction

‘Social support’ is a term used in connection with Activity 9 of the PIP assessment, which deals with the activity of ‘engaging with other people face to face’.

Descriptor 9(c) scores four points for a claimant who ‘needs social support to be able to engage with other people’. Schedule 1 of the Social Security (Personal Independence Payment) Regulations 2013, SI No.377 defines ‘social support’ as ‘support from a person trained or experienced in assisting people to engage in social situations’.

However, this definition has left certain questions unanswered which have had to be addressed in caselaw.

Questions arising

In particular, two central questions have arisen.

  1. Must the social support required be provided at the time of the engagement with other people – ie, must the provider of the support actually be present at the time.
  2. Can ‘social support’, as long as it is provided by a person identified in the definition, include prompting, or is prompting only relevant for descriptor 9(b) (‘needs prompting to be able to engage with other people’)? One of the ways in which this question is important is that descriptor 9(b) scores only two points, rather than the four points scored by descriptor 9(c).

Questions answered

These questions have now been answered by the Scottish Court of Session in the decision Secretary of State for Work and Pensions v MMck [2017] CSIH 57 (24 August 2017).

In brief, the court provides the following answers.

  1. It is not required that the support is required at the time of the engagement with other people – ie, it is not required that the provider of the support be actually present. However, there does need to be some sort of ‘temporal or causal link’ between the help and the engagement.
  2. Prompting can be included as a form of social support, if it ‘requires to be delivered by someone trained or experienced in assisting people to engage in social situations’. But that does not mean that any or all prompting delivered by such a person will be social support – the crucial test is if it is required to be delivered by such a person.

Support in advance of engagement

The court resolved conflicts in earlier decisions of the Upper Tribunal. Regarding the first question, in EG v SSWP [2017] UKUT 101 (AAC), Judge Gray thought that the support had to be provided while the activity was being carried out rather than ‘behind the scenes’. This was in contrast to the approach of Judge Mark in PR v SSWP [2015] UKUT 584 (AAC) in

which support provided in anticipation of the face-to-face engagement could count.

In essence, the court upheld the approach taken in the Upper Tribunal by Sir Crispin Agnew of Lochnaw Bt QC in MMck v SSWP [2016] UKUT 191. There, he held that there might be situations in which a qualified person (ie, one described in the definition of ‘social support’) could provide support in anticipation of the claimant meeting people face to face, without actually having to be present during the meeting. He gave as an example the possibility of help from a psychologist allowing the claimant later to go and meet people face to face.

The court considered that the correct approach to the question. Regarding both the prompting referred to in descriptor 9(b) and the social support referred to in descriptor 9(c), the court held (at paragraph 50) that ‘there can be no justification for a requirement that prompting or social support must be given during or immediately before the face to face engagement with other people’. There did need to be some sort of ‘temporal or causal link’ between the help and the engagement – ie, some clear relationship between the instance of help and the particular engagement with other people. But whether such a link is present is a matter for the decision maker (or tribunal) in the individual case (paragraph 51).

Prompting and social support

For the second question, some decisions of the Upper Tribunal (eg, by Judge Gray in EG v SSWP) had considered that social support involved something more than ‘prompting’ – ie, that there are distinct forms of help. By contrast, Sir Crispin Agnew in MMck v SSWP considered that there was potentially an overlap between prompting and social support.

Again, the court endorsed the approach in MMck v SSWP. The court held that the definition of ‘prompting’ includes ‘encouragement’, a term commonly included within the ordinary meaning of ‘support’. The ‘critical difference’ between ‘prompting’ and ‘social support’ as used in the PIP rules is the fact that social support comes from a person trained or experienced in assisting people in social situations. But the mere fact that the help comes from such a person is not enough. There had to be ‘some necessity’ for the help to be given by such a person. That could include cases where the support was in the form of encouragement or explanation but will only be effective if delivered by a person within the definition of social support. ‘In such a case’, said the court, ‘there will not be a qualitative difference in the help given, but the help can be regarded as “support” because of the necessity for it to be provided by someone trained or experienced in delivering it’ (paragraph 55).

For the avoidance of doubt, the court clarified this did not mean that the matter was simply determined by the claimant’s choice or preference. The court held that ‘encouragement or any other sort of prompting can qualify as “social support” if, to render it effective or to increase its effectiveness, it requires to be delivered by someone trained or experienced in assisting people to engage in social situations’ (paragraph 56).

Who can provide social support

The court made extensive reference to the requirement that social support may only be delivered by ‘a person trained or experienced in assisting people to engage in social situations.’ It is worth remembering that caselaw has established that this can include support from friends or family – see SL v SSWP (PIP) [2016] UKUT 147 (AAC). So, the definition does not result in a restriction to help from health professionals. No attempt to depart from that has been made. Indeed, in MMck v SSWP the social support was support from the claimant’s partner.

What now?

The decision is binding caselaw (including in England and Wales). However, at time of writing, the Secretary of State had applied for permission to appeal further to the Supreme Court. Separately, the issue of prompting and social support may be considered by the Court of Appeal in an appeal against the decision in AH v The Secretary of State (PIP) [2016] UKUT 276 (AAC). It may be, therefore, that cases that turn on the issues in the present decision will be stayed pending the outcome of those cases.

 


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