Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CPIP/1984/2015

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Mark

 

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and I substitute my own decision setting aside the decision of the decision maker dated 5 August 2014, and awarding the claimant the standard rate of benefit from 18 October 2013 to 18 March 2015 both dates inclusive.

 

 

REASONS FOR DECISION

 

1.    This is an appeal by the claimant with the permission of a District Tribunal Judge from a decision of the First-tier Tribunal dated 6 March 2015 dismissing the claimant’s appeal from a decision dated 5 August 2014 that the claimant was not entitled to any award of personal independence payment (PIP) from 17 January 2014.  The appeal is supported by the Secretary of State who invites me to remit the matter for rehearing by a new tribunal.

 

2.    The tribunal concluded that the claimant scored 6 points in relation to the daily living descriptors, being four points because she needed prompting to be able to take nutrition and 2 points because she needed prompting to be able to engage with other people.  It noted that the claimant’s condition had deteriorated since the date of the decision under appeal and that she should take advice as to what action might be appropriate in those circumstances.  Having presumably taken advice the claimant made a further application for PIP on 19 March 2015 and was then awarded the enhanced daily living and standard mobility components from that date.  This appeal is therefore concerned only with her entitlement between 17 January 2014 and 18 March 2015.

 

3.    There is no dispute on this appeal as to the points awarded by the tribunal in respect of her eating disorder, but it is said that the tribunal erred in law in relation to the question whether she needed social support to be able to engage with other people, which would have given her an additional two points and qualified her for the standard rate of the daily living component.  The tribunal is also said to have erred in law in its reasoning in respect of her ability to make complex budgeting decisions.

 

4.    The claimant, who was born in 1982, has long standing mental and physical health problems.  A diagnosis dated 2 April 2013 (file, pp.93-94) refers to mild to moderate depressive illness, to marital problems and family relationship problems, and to her 4 year old son suffering from autism.  She had been diagnosed in 2006 with adjustment disorder and prolonged depressive reaction.  She also had suspected bulimia.  She was not taking medication because she was afraid that her husband would get custody of their children if she was on antidepressants.  She was described as “quite an intellectual woman who has complete insight into her psychosocial problems”.

 

5.    The claimant took an overdose of paracetamol on 21 June 2013 following an argument with her husband.  The resulting assessment (file, pp.91-92) referred to domestic disharmony and violence at home, to her eating disorder, to one of her children being autistic and to a lack of family support. 

 

6.    In the period under consideration, from October 2013 to August 2014 she suffered from depression, anxiety, anaemia and an eating disorder.  A community care assessment on 23 October 2013 (pp.105-113 completed by a member of the council’s mental health team refers both to the paracetamol overdose and to a suicide attempt about a year previously.  It also states that at the time of the assessment the claimant was under the care of the wellbeing team for counselling by wellbeing nurse.  Her eligibility criteria for adult social care (FACS) was assessed as substantial in respect of her emotional wellbeing and mental health.  In respect of social relationships and activities outside the home it was assessed as critical, the highest level, as was her home and living situation.  Both her children, then aged 4 and 10, attended special schools and were diagnosed as autistic.  She had a sister that she talked to regularly but her family were not very empathetic due to forced marriage and cultural issues.  The claimant could not identify any friends she could talk to.  A risk of deterioration in her mental health was identified if her children were taken into care and there was also a risk of self harm/suicide.  She was to be allocated a social worker for continued involvement regarding housing, children’s services, forced marriage, possible emotional abuse, and support with emotional and mental wellbeing.

 

7.    In relation to finances, the assessment describes her as receiving income support and housing benefit and as not disclosing any debt or financial issues.

 

8.    At the time of her application for PIP, in January 2014, she had recently left her husband and she was still caring for her two autistic children to care for.  She was living with her mother and had a social worker helping her.  The same support worker was still helping her at the date of the tribunal hearing and attended the hearing with her.  The claimant was also represented at the hearing.

 

9.    There was medical evidence from her GP dated 8 May 2014 the disabling conditions were “variable sometimes making it difficult for her to make simple decisions or to think straight.  She sometimes finds it difficult to attend appointments because of stress and anxiety.”  The claimant’s own evidence in her application form was that due to her mental health problems and feeling unwell she needed prompting to communicate with other people.  She felt very distressed when she had to give an explanation to make herself clear to people.  Her advocate, who was from a local organisation formed to help disabled people, helped her to communicate with people she did not know.  She also had help from a mental health team, to which her social worker appears to have belonged.

 

10. She did not like mixing with people she did not know due to her anxiety.  Even with people she knew, such as family, she felt self-conscious because she was scared what people might say to her and lacked confidence.  She got very anxious when she met people and needed support and re-assurance when she needed to talk to people.  She was unable to understand how much things cost and was not sure how to pay bills.  She had to be prompted and helped by her mother to manage her money.  Due to her mental health she had been encouraged to apply for supported accommodation.

 

11. When seen by a disability assessor, a nurse, she told her that she enjoyed going to the park and walks and spending time with her family and talking over the phone and arts and crafts.  She used to like going to the gym and gardening but was not able to do this any more.  She also stated that she visited her sister-in-law where she was able to talk to her to discuss her feelings.  She did not have the confidence to talk to people she did not know due to her anxiety.  She stated that she would be able to talk to people she did not know if she had support, that she found it hard to mix socially with people she did not know due to her circumstances due to her anxiety but was able to mix with people if she had support from a friend.  She described all her days as being the same with no variability and the description and the day described did not involve any contact with anybody outside her family and social worker beyond what would be needed if except that on some days she might catch a bus into town to buy a hot chocolate.  The nurse reported that her mood was low throughout the assessment but she did not appear to have any memory, cognition or intellectual problem.  She did report suicidal thoughts and had attempted to slit her wrists and take an overdose at some point in the past.

 

12. The nurse concluded by describing the claimant’s condition as static but likely to improve as she was waiting to be re-housed.  I note that this prognosis has proved incorrect.  A community care assessment

 

13.  There was also before the tribunal a further community care review (pp.96-104) which was completed on 10 September 2014, a month after the date of the decision under appeal.  It would appear from p.97 that she had separated from her husband in January 2014 and that following meetings and involvement with the Children’s Service both of the children had remained with their father as she was unable to cope or look after them due to her mental health.  She was temporarily living with her parents whilst waiting for a flat to become available at Navjeevan (an organisation assisting South Asian women with mental health problems).  It appears from the report that Navjeevan had been involved with the claimant since August 2013 that it provided a floating support service to her 3 to 4 hours a week, and that she was on its waiting list for occommodation.  The claimant had said that without its support she would not be able to cope or manage life.  It supported her with completed forms, confidence building, counselling, attending appointments with her and assisting with her daily life skills.  She felt that she had no family support and looked for support to Navjeevan to enable her to become independent.

 

14.  The claimant is stated in the review to have said that her parents did not want her to live with them and that they were constantly arguing with her and blaming her for the marriage breakdown and were trying to force her to go back to her husband.  She was by now taking antidepressants.

 

15.  In relation to her emotional wellbeing and mental health, her earlier history was briefly repeated and the view was expressed that she required support to enable her to achieve her daily living skills, gain confidence and support her to live independently.  Her FACS level was said to be substantial.  In relation to day-to-day activities she refers to a social worker who visited her 4 hours a week and stated that the social worker helped her also with filling in forms, attending appointments and meetings with the Children Service, reminding her of appointments and accompanying her as and when she needed her support and help. She also called Navjeevan for advice when she needed help.  She expressed herself unsure whether she could continue her activities due to stress she was experiencing, and without the social worker’s help and support she felt overwhelmed and unable to function.

 

16. In relation to social relationships and activities outside the home the claimant repeated much of what she had earlier stated as to her children, arranged marriage and marital problems.  She went on to state that she talked to one of her sisters who lived some distance away but felt that she had betrayed her because she did not stand up for her in respect of the forced marriage.  She felt her parents hated her and had no friends she could talk to and seek advice and guidance from.  Without Navjeevan support she was unable to manage her day or week and she depended on Navjeevan’s support to help her get where she wanted to be in life.  Her FACS level was stated to be substantial.  In relation to finances

 

17.  In relation to finances, the claimant stated that she was getting ESA of £72 per week and that she was going to meet with somebody to sort out any other benefits she may be entitled to with her social worker supporting her at this meeting.  Her FACS level was described as substantial although no reasons are given for this.  She had presumably been moved from income support to ESA and was no longer entitled to housing benefit as she was living with her parents.

 

18. Under Risks and safety there are identified the risk of deterioration of her mental health if the social situation did not change, the risk of self harm or suicide and the risk of isolation.  Her overall FACS was described as substantial.  Her social worker contributed to the review and stated that the claimant needed confidence building and support to build her daily living skills.  Without Navjeevan support she was not proactive and she would not undertake tasks without support.

 

19. At the hearing the claimant went further into some of her problems and also described some of the activities she had undertaken during the period the tribunal had to consider.  This appears to have included going to India at some point with her parents and mixing with her family there but feeling very nervous and out of it.  She also described going to the gym 3 times a week the previous summer and speaking to people there when necessary.  It is not always clear from the record of the proceedings when she stopped doing some of the things such as going to the hairdresser with her sister-in-law, in respect of which she said only that she had not been for a long time.  She also referred to the part played by her social worker and her support worker and to her crossing town by bus to see her children.  She said that she went a few times on her own.

 

 

 

 

The statement of reasons

 

20. In the statement of reasons the tribunal judge dealt at some length with what the claimant had done, concluding that the claimant was, at the time of the decision going out on her own, on occasions catching two buses into town; attending a gym on a very regular basis, again sometimes travelling on her own and engaging with others at the gym; visiting her children on a regular basis, sometimes travelling with her sister-in-law and occasionally on her own; continuing to see her husband from whom she was separated on a regular basis, with her husband taking her to appointments with the social worker and going with her to McDonalds; going with her sister-in-law into town, to the gym or McDonalds and occasionally to the hairdressers; sometimes going with a flatmate into town or with her mother to the gym (I am unclear how the flatmate appears when she seems to have moved from her marital home to her parents); managed to engage with relatives in India that she had not met before and was entertaining relatives who came to visit her parents. 

 

21. The statement of reasons goes on to refer to the assistance of the support worker with meetings at the Children Service and describes the support from the social worker and Navjeevan.  It notes that by the time of the hearing her position had changed and she was in supportive accommodation with substantial support available throughout the day but this was not the case at the time of the decision.  At that time she was capable of some engagement with other people face to face on her own and received support from various members of her family in view of her difficulties in meeting other people she did not know.  It appeared to the tribunal that the majority of her engagement with others at that time did not involve the support worker or social worker.  On that basis the tribunal did not feel able to award descriptor 9(c) which referred to engagement with other people only being possible with someone who was trained or experienced in helping people to engage in social situations.  Instead it awarded descriptor 9(b) which gave her two points.

 

22. In relation to making budgeting decisions, the tribunal noted that that the community care reviews did not refer to a problem budgeting with the 2013 review confirming that she was able to pay bills.  It also noted that she did not have any cognitive impairment and that she had been referred to by the psychiatric clinic as quite an intellectual woman.  She had also told the disability assessor that she managed her own finances.  The tribunal concluded that no points could be awarded for this descriptor.

 

Regulations 4, 7 and 14

 

23. In applying these descriptors it is necessary to read them with regulations 4 and 7 of the Social Security (Personal Independence Payment) Regulations 2013.  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.”

 

24. 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”.

 

25. The required period is defined by regulation 7(3) where entitlement to PIP falls to be determined, the period of three months ending with the prescribed date together with, for present purposes, the period of 9 months beginning with the date after the prescribed date.  The prescribed date is defined by regulation 14 as it applies to the present case as the date of the claim or, if later, the earliest date in relation to which, if C had been assessed in relation to her ability to carry out daily living activities at every time in the previous 3 months it is likely that the Secretary of State would have determined that the Secretary of State would have determined at that time that she had limited ability or severely limited ability to carry out those activities.

 

The proper application of descriptors 9 and 10 to the present case

 

26. It can be seen that in the present case the tribunal had to consider the position over any 12 months period commencing between 3 months before the date of the claim, i.e. 17 October 2013) and 3 months before the date of the decision (i.e. 5 May 2014).  The tribunal was therefore in error of law in concentrating on the time of the decision in reaching its own decision on the appeal.

 

27. In relation to both the 3 months period ending on the prescribed date and the 9 months period after that date the pre-condition in regulation 12 must have been satisfied, but for present purposes, the effect of regulations 4(2A), 4(4), 7(1)(a) is that the claimant can only be taken as satisfying a descriptor if she could carry out the activity safely, repeated and to an acceptable standard within a reasonable time period (those terms being defined as set out in paragraph 24 above on over 50 per cent of the days of the required period.

 

28. Descriptor 9(c) is “Needs social support to be able to engage with other people”.  Social support is defined in paragraph 1 of Schedule 1 to the Regulations as “support from a person trained or experienced in assisting people to engage in social situations”.  There is no definition of “engage”, but “engage socially” is defined in paragraph 1 of Schedule 1 as meaning (a) interact with others in a contextually and socially appropriate manner; understand body language; and (c) establish relationships.

 

29. On this appeal, both the representative of the claimant and the representative of the Secretary of State have drawn my attention to p.38 of the Government’s response to the consultation on PIP assessment criteria where it is stated “Some respondents were concerned that our definition of social support excludes friends and family. This is not the case, we recognise the importance of friends and family and that is why our definition of social support is: ‘support from a person trained or experienced in assisting people to engage in social situations’.  By referring to ‘experienced’ we mean both people such as friends and family who know the individual well and can offer support, or those who do not know them but are more generally used to providing social support for individuals with health conditions or impairments.”  The representative of the Secretary of State states that this represents the present position of the Secretary of State and supports the contention made on behalf of the claimant that the tribunal failed to take into account support available from members of the claimant’s family, such as her sister-in-law.

 

30. The problem with this in the present case is that almost all the evidence indicated that the claimant was getting very little support from members of her family who seemed to have lacked any empathy with her.  On the evidence before the tribunal, I can see nothing to indicate that there was any member of her family who could be described as experienced in assisting people to engage in social situations, or at any rate if they were so experienced they do not appear to have deployed that experience very much to assist the claimant.

 

31. That, however, is not the end of the matter.  There is nothing in the descriptor to suggest that the social support has to be provided at the moment when the claimant might be expected to engage face to face with other people.  The claimant was clearly receiving social support from at least the support worker and the social worker, as I have described them, throughout the period in question.  The tribunal needed to ask not “were they there at the time of the engagement?” but “would the claimant have been able to engage with other people without the  social support she received?”  The tribunal erred in law in failing to ask the right question.

 

32. The tribunal also erred in law in failing to consider whether all such engagement as the claimant could manage was to an acceptable standard, and was unlikely to cause her harm even after engaging, bearing in mind the evident deterioration in her condition by the time of the hearing.  It also failed to consider whether she could do so as often as reasonably required, and which of the activities to which it referred counted as engaging face to face. 

 

33. I therefore conclude that on these grounds alone, the tribunal failed properly to consider descriptor 9(c) and as that could have given the claimant sufficient points to qualify for the standard rate of the daily living activities element of PIP, its decision must be set aside.

 

34. I leave open the question whether the definition of “engage socially”, a term which never appears in the Regulations, is intended to define “engage” in this descriptor. If so, then on the evidence I have set out, it is at least open to question whether such engagement as the claimant was capable of amounted to interacting with others in a contextually and socially appropriate manner, and it would not seem that she had managed to establish any relationships in the period, despite needing to do so following the break up of her marriage.

 

35. I am also satisfied that the tribunal was in error of law, as her representative and the representative of the Secretary of State agree in failing to take into account the effects of her depression in considering her ability to make complex budgeting decisions alone.  I note the definition of complex budgeting decisions in paragraph 1 of Schedule 1 to the Regulations as “decisions involving – (a) calculating household and personal budgets; (b) managing and paying bills; and (c) planning future purchases.”  However intellectual the claimant may have been, her depression may have been such at times as to prevent her from doing so to an acceptable standard, repeatedly and within a reasonable time period.

 

Conclusion

 

36.  It appears to me that this is a case in which, in accordance with the overriding objective, I should substitute my own decision for that of the tribunal.  I am only concerned with just over one year’s benefit of under £55 per week.  The claimant’s condition has deteriorated to the extent that she is now in receipt of the enhanced daily living rate and the standard mobility component.  A further hearing with further evidence, if she is fit to provide it at all, is likely to be stressful and not necessarily helpful.  It therefore appears fair and just that I should give my own decision on the evidence before me, there being no suggestion that the claimant might be entitled to any higher rate than the standard rate of the daily living component.

 

37. I am satisfied on the evidence I have recited that the claimant has had an eating disorder, as found by the tribunal which began many years ago and which throughout a period from a date well prior to October 2013 meant that she needed prompting to be able to take nutrition and that she therefore is entitled to the 4 points awarded to her by the tribunal under descriptor 2(d).  I am also satisfied that, on the balance of probabilities, but for the support which she received from the council, and from the charitable organisations which helped her, all from dates before October 2013, her mental health would have broken down to a far greater extent that was the case during the period between then and March 2015, so that she would not have been able to engage at all face to face  to an acceptable standard more than 50 per cent of the time, whatever interpretation might be placed on “engage”.  She therefore scores 4 points under descriptor 9(c), bringing her total to 8 points.  She cannot score more points under that descriptor, since, even if she could not engage with other people at all, any inability to engage would not have been the result of such engagement causing overwhelming psychological distress to her or of her exhibiting behaviour which would result in a substantial risk of harm to herself or others. 

 

38. It is unnecessary for me to consider whether she would also score 2 points under descriptor 10(b) as this would not affect her rate of benefit. 

 

 

 

(signed)

 

Michael Mark

Judge of the Upper Tribunal

23 October 2015