[2024] UKUT 244 (AAC)

NCN: [2024] UKUT 244 (AAC)

relationships. What the appellant could do on the phone or in work is not therefore relevant (or, at least, is not determinative). See SF v SSWP (PIP) [2016] UKUT 543 (AAC) at [6] and HA v SSWP (PIP) [2018] UKUT 56 (AAC) at [13]-[19]. If she needs ‘prompting’ for this activity, she would have scored 2 points or, if she needs ‘social support’ (as explained in SSWP v MM [2019] UKSC 34), she would have scored 4 points.

The Secretary of State supports the appeal on the basis that I outlined in the grant of permission, save that the Secretary of State argues that I went too far in suggesting that what the appellant could do on the phone or in work is ‘not relevant’ to the question of whether she meets the activity 9 descriptors. The Secretary of State supports that submission by reference to what is, so far as I can tell, an unreported, unpublished decision of Judge Rowland (CPIP/1203/2016). The appellant agrees with the Secretary of State. In [6] of that case, Judge Rowland stated as follows:-

I am also satisfied that the First-tier Tribunal did not err in law in its consideration of Activity 9. As has been noted before, the term “engage socially” is defined in Part 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (SI 2013/377) and is then not used anywhere in the Schedule but, even assuming that it defines “engage with other people” for the purpose of Activity 9, there is no need for the term “social” in the phrase “socially appropriate manner” to imply that, in considering whether any of the descriptors in Activity 9 is satisfied, regard should be had only to contact in a social, as opposed to a business or professional, context. The reasoning in JC v Secretary of State for Work and Pensions (ESA) [2014] UKUT 352 (AAC); [2015] AACR 6 at [24] to [35] applies to personal independence payment as much as to employment and support allowance. Accordingly, the reasoning of the First-tier Tribunal in paragraph 21 of its statement of reasons was quite adequate against the background of the evidence in the case.

I agree with the parties that the evidence the Tribunal had of the appellant’s ability to engage on the phone and in work was not ‘irrelevant’ to the matters it had to consider in relation to activity 9. However, the difficulty in this case is that it appears from the decision that the Tribunal has misunderstood activity 9 because it identifies that the appellant does have a problem meeting new people face to face, i.e. a problem with one of the specific activities covered by activity 9, but then explains that it is not awarding her points because she does not have a difficulty with two activities (talking on the phone and engaging in a work context) that are not specifically covered by activity 9. There is therefore a clear error of law. The Tribunal appears simply to have misunderstood the nature of the test it had to apply.