The Supreme Court considered the meaning of “social support” when assessing, for personal independence payment, whether a claimant’s ability to engage with other people face to face is limited. It held that support, which may include prompting, counts only where the claimant needs it from someone trained or experienced in assisting social engagement, and that the support need not be given at the same time as the engagement. The appeal was allowed only so far as necessary to adjust the Inner House’s interpretation; the respondent’s entitlement remains undecided.
Personal independence payment is a non-means-tested allowance under Part 4 of the Welfare Reform Act 2012. The daily living component at the standard rate requires that the claimant’s ability to carry out prescribed daily living activities is limited by a physical or mental condition and that the required period condition is met. The Social Security (Personal Independence Payment) Regulations 2013 set out activities and descriptors. Points are awarded according to the level of difficulty, and a total of at least eight but fewer than 12 points means limited ability and entitlement at the standard rate. The assessment looks across a twelve-month period, not a single day, and allows for some fluctuation.
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Activity 9 is “engaging with other people face to face”. Descriptor 9b awards two points where the claimant needs prompting, defined as reminding, encouraging or explaining by another person. Descriptor 9c awards four points where the claimant needs social support, defined as support from a person trained or experienced in assisting people to engage in social situations. Descriptor 9d, attracting eight points, covers inability to engage because of overwhelming psychological distress or a substantial risk of harm.
The claim and the courts below
MM claimed personal independence payment. He relied on the support he needed to engage with other people. The First-tier Tribunal’s treatment of that support was challenged, and the Upper Tribunal sent the case back for fresh findings.
The Secretary of State appealed to the Inner House against the directions, but not against the remittal. The Inner House refused the appeal. It held that prompting and social support are not mutually exclusive: the important distinction is that social support must come from a person trained or experienced in assisting engagement in social situations, not a difference in the kind of help. It also held that support need not be given during the engagement, although there must be a temporal or causal link of some sort between the help and the activity. It remitted the case with its own formulation. The Secretary of State appealed to the Supreme Court on both the nature of social support and its timing. Mind intervened. No findings of fact about the respondent’s own needs had yet been made, and he continued to await that determination.
What distinguishes social support
Lady Black, with whom Lady Hale, Lord Kerr, Lord Hodge and Lord Sales agreed, began from the help the particular claimant needs in order to engage face to face, not help that would merely be welcome. Face-to-face engagement and the assistance that enables it take many forms. The Secretary of State accepted that social support may consist of prompting, but said the helper must act by reason of relevant training or experience. Familiarity or a trusting relationship is not enough, although a friend or family member who is genuinely experienced in assisting social engagement can qualify.
The Court rejected a narrow argument that only help falling within the defined concept of being “aided” could count. “Support” is a broad word, consistent with the aim of a simpler benefit reaching people who need extra help to live independently. Prompting is one form of support, but not the only form. Descriptor 9c reflects a greater limitation than descriptor 9b because the claimant needs the help to come from someone trained or experienced in assisting people to engage in social situations. The nature of the help need not itself differ from prompting. What matters is that the support will be effective only if delivered by such a person. If ordinary help from someone without that training or experience would enable the engagement, descriptor 9c is not met. If not even trained or experienced help would work, descriptor 9d may apply. Need is not a relative idea: it is not enough that trained help would merely increase effectiveness.
In practice, decision-makers may need to examine carefully what help is already being given, how the helper knows what to do, whether any well-meaning friend or relative could provide it, and what further help is required. Claimants may find it difficult to describe their needs, so sensitive follow-up questions may be necessary.
Whether support must be given at the time of the engagement
The Secretary of State argued that social support must be contemporaneous with the engagement. The Court disagreed. Nothing in descriptor 9c or the definition of social support requires the supporter to be present during the engagement, or requires the support to coincide with it rather than be given before or after. The present tense shows that the need must continue throughout the relevant period; past help that has already enabled the claimant to manage without further support does not suffice. It does not confine support to help given on the spot.
Different claimants need different techniques. Advance preparation, discussion of difficult scenarios, gradual reduction of a supporter’s presence, or reassurance from knowing that a supporter is nearby may enable an engagement that would not otherwise take place. Requiring physical presence in every case could obstruct progress towards managing with less support and could be counterproductive in sensitive situations, such as a medical examination. Comparisons with other activities do not justify the restriction, because the activities differ. Whether particular help qualifies is a question of fact and degree, to be worked out case by case by close attention to the words of the descriptor and the required period condition. The Court did not adopt the Inner House’s requirement of a temporal or causal link of some sort, which risked confusion: support linked only in time, without enabling the engagement, would not be relevant.
Verdict: The Court unanimously allowed the Secretary of State’s appeal only to clarify the legal test. Social support could be provided before an encounter if the claimant needed it from someone trained or experienced in helping with social engagement. MM’s entitlement remained for the First-tier Tribunal.
Source: Secretary of State for Work and Pensions v MM (Scotland) [2019] UKSC 34
