Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  UK/5205/2014

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is dismissed.

REASONS FOR DECISION

1.    This is an appeal by the Secretary of State with the permission of a District Tribunal Judge from a decision of the First-tier Tribunal dated 5 August 2014 allowing the claimant’s appeal from a decision dated 7 January 2014 of a decision maker that the claimant was entitled only to the mobility component of personal independence payment (PIP) at the standard rate from 25 June 2013 to 24 June 2015.  The First-tier Tribunal, having awarded 16 points in respect of the daily living descriptors, determined that the claimant was also entitled to the enhanced rate of the daily living component for the same period.  The Secretary of State has contended that the claimant ought only to have been awarded 6 points and not 16 points in respect of the daily living descriptors and therefore ought not to have had any award of the daily living component.

2.    The claimant, who was born in 1992, suffers from Asperger’s Syndrome and from obsessive compulsive disorder.  Both the decision maker and the tribunal found that he could not follow the route of an unfamiliar journey without another person, assistance dog or orientation aid.  He therefore scored 10 points under mobility descriptor 1d and that entitled him to the standard rate of the mobility component.  In relation to the daily living component, the decision maker had concluded, based on a health professional’s report, that the claimant only scored 4 points (because he required prompting to wash or bathe and to dress and undress in a timely manner.  That was insufficient to entitle him to any award of the daily living component.  On appeal the tribunal considered that in addition to those points, he needed supervision or assistance to either prepare or cook a simple main meal (4 points) and that he 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.

3.    The Secretary of State contends that on the facts found by the tribunal the claimant should only have been awarded 2 points in relation to the cooking descriptor and no points in relation to engaging with other people face to face.

4.    I note that in assessing a claimant’s ability to carry out an activity, regulation 4 of the Social Security (Personal Independence Payment) Regulations 2013 provides as follows:

“(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 –

(a)  safely;

(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.”

5.    Regulation 7(1)(a) goes on to provide that “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”.

6.    Schedule 1 begins with definitions of some of the terms used in that Schedule.  “Prompting” means reminding, encouraging or explaining by another person”.  “Supervision” means the continuous presence of another person for the purpose of ensuring C’s safety”.  “Assistance means physical intervention by another person and does not include speech”. 

7.    These definitions are relevant when one turns to the first of the two descriptors where the Secretary of State takes issue with the tribunal’s decision.  In relation to preparing food, the tribunal found that the claimant needed supervision or assistance to either prepare or cook a simple cooked meal.  In paragraph 17 of its decision, the tribunal found that the claimant “is unable to follow recipes as feels compelled to cook each ingredient one at a time before moving on to the next therefore rendering any meal inedible by the time he had reached the end of the cooking process.  He therefore requires supervision or assistance from another person to prepare or cook a simple meal.”  In paragraph 20 the tribunal went on to find that “the approach adopted by [the claimant] of preparing and cooking each individual ingredient separately was due to his obsessional compulsive behaviour and thought patterns and was not something he could change without the support of another person assisting him with the task of cooking.”  On this basis, the tribunal awarded him 4 points.  The Secretary of State contends that he should only receive 2 points because the only assistance he needed was prompting, which fell within the descriptor “Needs prompting to be able to either prepare or cook a simple meal”. 

8.    There is no finding that the claimant’s safety is at risk if he is left to cook by himself.  Accordingly, I do not see how the help he needs can be supervision within the limited meaning of that term in the Regulations.  There is also no finding as to what, if any, physical assistance is needed by him.  It may be that prompting would be enough.  The tribunal needed to explain what assistance, that is physical intervention, was needed and how it would enable him to prepare the hypothetical simple meal.  It is clear that the claimant scores at least 2 points on this descriptor, but the findings are inadequate to enable the parties to see why he scored 4 points rather than 2 points.

9.    The second award of points questioned by the Secretary of State is in relation to descriptor 9d.  This is under the heading engaging with other people face to face and applies where the claimant “Cannot 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.”  Psychological distress is defined as “distress related to an enduring mental health condition or an intellectual or cognitive impairment”.

10. I note that, somewhat curiously, while there is no definition of “engage” in part 1 of Schedule 1 of the Regulations, there is a definition of “engage socially”, an expression which is defined for the purposes of the Schedule but which appears nowhere else in the Schedule.  “Engage socially” is stated to mean “(a) interact with others in a contextually and socially appropriate manner; (b) understand body language; and (c) establish relationships”. 

11. The combination of regulations 4 and 7 as quoted above mean that the claimant was entitled to score points under this heading if he could not so engage with other people safely and to an acceptable standard for at least 50% of the time during the relevant period as often as that activity was reasonably required to be completed and taking no longer than twice as long as the maximum time which a person without a relevant physical or mental disability would take.  I would observe that in determining whether a claimant can 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.

12. 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.

13.  In its findings of fact, the tribunal found that the claimant had moved into supported accommodation in August 2013 at the request of his mother due to his verbal aggression at home towards family members.  He avoids using the communal areas of the housing.  He had left college and a supported employment placement at a classic car garage as he became stressed being unable to communicate with others which had led to him being signed off.  He did not have friends.  He was a member of a local theatre group and was more comfortable now that the other members of the group were more familiar to him.  He struggled to live with other people and had difficulties in coping with his supported accommodation.  He had very little contact socially with the other residents.  He found it difficult to use public transport He would not use the bus but would take a train if he had to, taking steps to avoid coming into contact with other people.

14. The tribunal went on to elaborate in the reasons for the decision that although he could communicate with people familiar to him, he did not seek out contact with others and never had.  Such contact raised his anxiety and triggered his OCD behaviours and rituals.  Living with others had greatly affected his ability to sleep.  He avoided contact with other residents and staff had had little success in encouraging him to leave his room to socialise.  His socialising was described as minimal.  When he did go out, he would spend hours dressing in a very particular way and ensuring his appearance, particularly his hair, conformed to exact standards.  The health professional who had examined him had described him as acting a part.  He saw people only in very limited circumstances and was unable to develop and build personal relationships.  He was not able to socially engage with others as he could not interact with or interpret the body language of other people.  He could not therefore socially engage with other people appropriately or safely to an acceptable standard.  He acted a role when he was in a situation where he had to mix with others and would spend up to 3 hours to get his appearance right and follow his rituals to alleviate his stress and anxiety.  He was prone to angry verbal outbursts when he felt misunderstood or was unable to get his point across.  “The Tribunal considered that this was evidence of [the claimant’s] inability to safely mix with other people as often as he needs to in a reasonable time frame and to an acceptable standard.”

15. On this appeal, the Secretary of State contends that the evidence was that the claimant was able to engage fully and appropriately throughout the medical consultation and at the tribunal hearing although the tribunal described the claimant as putting on an act.  He was able to interact with people he knew and with whom he was comfortable such as his drama group.  He went to mainstream school, held an administrative post, worked in a garage and was planning to study history and politics at university.  There was no evidence that he experienced overwhelming psychological distress or that he exhibited behaviour which would result in a substantial risk of harm to himself or another person.  He was not prescribed any medication.  The tribunal had not explained why the claimant fulfilled the criteria for this descriptor.

16. I note that some of these activities fall outside the period under consideration by the tribunal which others are individual occasions (with which I deal below) or ambitions which may or may not be achievable and if achievable, could be achieved, for example, by studying at the Open University, which would involve little need for engagement face to face with others.

17. It appears to me that, in relation to the question whether the claimant could engage with other people at least 50% of the days, as often as that activity was reasonably required and to an acceptable standard, there was abundant evidence which was accepted by the tribunal and which entitled the tribunal to conclude that he could not do so.  Being able to put on an act on special occasions, even a few times a week when going to the drama group, after lengthy preparation does not fulfil the criteria of the descriptor and the tribunal has made more than adequate findings as to why in other respects he was in general not able to engage with other people to an acceptable standard.  Being able to do so by way of an act in very limited circumstances is not as often as reasonably required even on those days when he can do so.  

18. There was also evidence which the tribunal accepted that when living at home in 2013, and having to mix with family members, he was so verbally aggressive to family members that his mother asked for him to move to supported accommodation.  There he had much less contact with the other residents.  It seems clear that the tribunal concluded that with more engagement with other people face to face than the relatively minimal engagement he in fact undertook, he would be liable again to be verbally aggressive, with a substantial risk to his own safety.  While this conclusion may have better been expressed less elliptically, I consider that it is sufficiently clear that that was the conclusion reached by the tribunal.

19. It was therefore unnecessary for the tribunal to consider whether engagement with other people to an acceptable standard and as often as reasonably required most days would cause him overwhelming psychological distress.

20. The outcome of this decision is that the claimant may score 2 fewer points that the tribunal found him entitled to, but that does not affect the outcome of the appeal.  On any footing he scores at least 14 points and remains entitled to the level of benefit found by the tribunal.  The appeal is therefore dismissed.

(signed)

Michael Mark

Judge of the Upper Tribunal

30 April 2015