JP v Secretary of State for Work and Pensions

The background of this case is in the Decision Maker’s (DM) submission to the First-tier Tribunal (FtT) [pp.170-184]. The claimant made a claim to Personal Independence Payment (PIP) by telephone on 04/05/2018 and submitted a completed PIP2 questionnaire form dated 23/05/2018 with supporting evidence, detailing her difficulties with the daily living and mobility activities of PIP. The claimant then underwent a face to face assessment with a Healthcare Professional (HP) on 13/06/2018.

The DM on considering the available evidence scored the claimant 4 points for daily living descriptor 2(d) and 0 points for the mobility descriptors of PIP, as such the claimant was not entitled to an award of PIP from 04/05/2018. The claimant was notified of the decision in a letter dated 03/07/2018. I note the point scoring threshold for an award of PIP is 8 points for either component (daily living or mobility) at the standard rate and 12 points are required for either component to be awarded at the enhanced rate.

The claimant requested a mandatory reconsideration of the above decision and on reviewing the available evidence, the DM decided that the decision remained unchanged. The claimant was notified of the decision in a letter dated 30/08/2018.

The claimant then lodged an appeal with HM Courts and Tribunal Service (HMCTS) dated 10/09/2018. The First-tier Tribunal (FtT) upon hearing the appeal (on 05/05/2019) refused the claimant’s appeal, albeit that the FtT scored the claimant 6 points for daily living descriptors 2(d), 9(b) and 4 points for mobility descriptor 1(b). However, the points scored were still not sufficient for an award of PIP to made to the claimant.

This is a LEAP case. The First-tier Tribunal heard and decided the claimant’s appeal on 5 February 2019. That was before the Supreme Court made its decision in MM v Secretary of State for Work and Pensions [2019] UKSC 34. Nevertheless, the lawfulness of the tribunal’s decision must be judged on the basis that the law has always been as stated by the Supreme Court.

The claimant did not ask the tribunal for its written reasons, so it is not possible to allow the appeal on the basis that the tribunal’s reasons were inadequate. Nevertheless, I consider that there is sufficient in the case, given the papers provided by the Secretary of State, to give permission on the ground that the tribunal may have made some other mistake of law.

In view of UT Judge Jacobs observations (repeated above) concerning the grounds of appeal my submissions will address the FtT’s decision to award the claimant 4 points for mobility descriptor 1(b) – Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress.

I would note that the period this appeal covers, is from 04/05/2018 the date that the claimant made her claim to PIP to 26/02/2020 the day before she made a further claim to PIP, which was successful.

The claimant in the PIP2 questionnaire form dated 23/05/2018 [pp.73-108] reports that she suffers from longstanding mental health difficulties, which include an eating disorder, borderline personal disorder, obsessive compulsive disorder, anxiety, depression, self-harm, and insomnia. She is under the care of a psychiatrist and sees a community psychiatric nurse; she also has support from an outreach worker and sees a dietician a monthly basis. She has also attended an emotional regulation group and is prescribed citalopram at 10mg daily to help manage the symptoms of her mental health [pp.76-77, 109-111 and 144-148].

The claimant reports difficulties with mobility activity 1 – (Planning and following journeys), stating the following at p.99:

“I can plan routes to very familiar places like my son’s school and to Tesco myself. But anywhere more complicated I need help from family, friends, and my support worker. I have severe anxiety whenever I go out, even to places I know well.”

The claimant reported to the Healthcare Professional (HP) who conducted the face to face assessment on 13/06/2018 that she “…tries to use public transport with family but finds this very difficult due to anxiety…” she will go into town fortnightly with a family member using a taxi and that she finds “…following an unfamiliar journey uncomfortable and causes her anxiety. If there was a disruption in the route she would panic and have to go home and not continue with this journey.”[p.121]

When requesting a mandatory reconsideration of the decision under appeal notified on 03/07/2018 [p.150], the claimant’s representative reports that she:

“… cannot go out to places that she is unfamiliar with, without support from family or a support worker. If [claimant] has to go to a new environment she says that she can’t breathe, becomes dizzy, sweats and her heart pounds.”

The FtT in awarding the claimant 4 points for mobility descriptor 1(b) appear to have accepted the claimant’s anxiety and that overwhelming psychological distress (OPD) existed. It may be that the FtT was required to explore why it thought OPD which must have existed at the point where the claimant was considering venturing outside would dispel to such an extent that once following a route she would not require the presence of another person. Consequently, failing to explore what effect OPD has along the journey. As such, I submit that further findings were required as to whether the claimant meets the definition of overwhelming psychological distress and whether she falls within any of the relevant descriptors under mobility activity 1, as per the decision MH v Secretary of State [2016] UKUT 0531 (AAC) reported as [2018] AACR 12.

Moreover, whilst the FtT in accepting that the claimant requires prompting not only with mobility activities but also with some daily living activities, the same level of prompting does not necessarily apply to all the descriptors. However, it is unclear upon reading the evidence within the appeal bundle why the FtT found that the claimant did not require prompting from another person in order to undertake daily living activity 6 – (Dressing and undressing). Particularly, as the claimant reports the following difficulties at p.89 in the PIP2 questionnaire form dated 23/05/2018, where she states that:

“That most of the time I have no motivation getting dressed and I stay in pyjamas all day. In the house, I always need my dressing gown on for comfort. My family or support worker have to prompt me to dress when going out, and sometimes I refuse to do this.”

The claimant’s evidence (repeated above) regarding difficulties she has with a lack of motivation to dress and undress appears to suggest that she may benefit from prompting from another person in order to undertake the activity in accordance with the provisions of regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 (the PIP Regs 2013). Furthermore, it is difficult for the claimant to know whether the FtT applied the correct legal tests in assessing the evidence, making their findings of fact, and arriving at their decision that she did not satisfy any point scoring descriptors within daily living activity 6. As such it is my submission that further findings are required on this matter.

Additionally, I have some concerns as does the claimant’s representative regarding the FtT’s decision to award the claimant 2 points for daily living descriptor 9(b) – Needs prompting to be able to engage with people. Particularly given the claimant’s evidence at p.95 where she reports that she does not “…like talking to people or people looking at me. I have very low self-esteem currently. I’m getting support currently to help with these issues” the claimant also reports at p.102 that she receives “…support from Ty Canna Mental Health Outreach Service, for help with my mental health and with social isolation.”

It is notable that there are letters from the Consultant Psychiatrist dated 21/05/2018 confirming that the claimant is receiving support from the Ty Canna Support Services and an undated letter from Ms Bannister County Hall, Cardiff confirming the claimant’s referral to Ty Canna Outreach Service and noting that “[Claimant] has lost confidence and motivation in her ability and needs support to regain her self-worth.”

“…does not feel comfortable mixing with others. She doesn’t trust people due to past negative experiences. [Claimant] has been referred to Ty Canna outreach to help her overcome social isolation and assist her dealing with anxiety and depression.”

Although the UT Judge has not granted permission to appeal with regards to FtT’s decision to award 2 points for daily living descriptor 9(b), it is unclear considering the wealth of evidence within the appeal bundle regarding the claimant’s significant mental health difficulties and her dependency on her family and support worker for help in her day to day life, why the FtT found that daily living descriptor 9(b) was appropriate. This is particularly pertinent given that in the Supreme Court decision in SSWP v MM [2019] UKSC 34, that considered the decision MM v SSWP [2016] UKUT 0191 (AAC), which I note was made prior to the date of the claimant’s appeal, acknowledges that there is an overlap between “social support” and “prompting” when a claimant receives prompting (i.e., reminding, encouraging, or explaining by another person) from a person who meets the definition of a social supporter.

As there is no statement of reasons (SOR) to explain the FtT’s reasoning for awarding daily living descriptor 9(b) rather than higher scoring descriptor itremainsunknown. As such it is unclear if the FtT adequately considered whether the claimant would benefit from social support rather than prompting to allow her to undertake the activity in accordance with the provisions of regulation 4(2A) of the PIP Regs 2013.

In view of the above, Irespectfully submit that it is difficult for the claimant to know whether the FtT applied the correct legal tests in assessing the evidence, making their findings of fact, and arriving at their decision. Notwithstanding my support of the above grounds, I respectfully submit that any further grounds raised by the claimant’s representative will be subsumed by the newly constituted FtT.