[2025] UKUT 296 (AAC)

I consider RC remains good law and that nothing which Hickey decided (that is, its ratio) undermines any part of RC. Moreover, I consider that the (in my view, obiter) remarks in paragraph [66] of Hickey are not inconsistent with RC. My reasons for coming to these conclusions are as follows.

I start with the wording of the statutory scheme shorn of case law. Paragraph 1 in Part 1 of Schedule 1 to the PIP Regs provides that in Schedule 1:

“engage socially means:

“(a)

interact with others in a contextually and socially appropriate manner;

(b)

understand body language; and

(c)

establish relationships”

(The underlining is mine and has been added for emphasis.)

I have already noted that the phrase “engage socially” does not appear elsewhere in Schedule 1 to the PIP Regs. Paragraph [9] of Hickey explains why the definition remains relevant in deciding whether for the purposes of activity 9 a claimant can “engage with other people face to face” unaided. In SSWP v MM (Scotland) [2019] UKSC 34 it was also accepted (at paragraph [14]) that the:

“factors set out in relation to “engaging socially” are nevertheless relevant to the consideration of a person’s ability to engage with other people face to face”

The above perspectives in my judgement are congruent with the rule of statutory construction that where legislation uses words the legislature intended them to have meaning and not to be mere surplusage or to be treated as redundant. See, for example, Bilta v Tradition Financial Services Ltd [2025] UKSC 18, [2025] 2 WLR 1015 at paragraph [20], R (Quintavalle) v Secretary of State for Health [2003] UKHL 13; [2003] 2 AC 687 at paragraph [8] andInco Europe Ltd v First Choice Distribution [2000] UKHL 15; [2000] 1 WLR 586.

Given this and the history of the PIP Regs, and seeking to give effect to the statutory definition of “engage socially” and what it means for the rest of Schedule 1 to the PIP Regs (other than it having no meaning, which would be contrary to Hickey and MM), in my judgement “engage socially” should be read as a legal proxy for “engage with other people face to face”. It is in my respectful judgement on this basis (and as far as I can see only this basis) that the statutory definition of “engage socially” remains as a matter of law relevant to daily living activity 9 in Schedule 1 to the PIP Regs. To give a literal construction to “engage socially” (and what it says it means) would render it as having no effect, and so as having no relevance, as the phrase does not appear anywhere else in Schedule 1 to the PIP Regs. If “engage socially” in Part 1 of Schedule 1 to the PIP Regs is not to be read as a proxy for “engage with other people face to face”, I find it difficult to gauge on what legal basis the definition of “engage socially” is relevant to “engaging with other people face to face” in activity 9.

In other words, in my judgement, in activity 9 the phrase “engage with other people face to face” should be read as meaning:

“(a) interact with others in a contextually and socially appropriate manner;

(b)

understand body language; and

(c)

establish relationships.”

There was some debate before me about whether the conditions under the definition of “engage socially” are cumulative. The Secretary of State put her position in this way in her skeleton argument:

“12.

An obvious issue that arises for the definition of “engage socially” is whether the elements of the definition are cumulative. In other words, if a person had difficulties only with (b), but could perform (a) and (c), could they be able to engage socially? Or must difficulties with all three of (a)-(c) be satisfied for an award of points?

13.

Hickey addresses this issue at [63]. It is open to tribunals “to treat all these matters in the round”, that is, take them together rather than in isolation. More recently, in KW v. Secretary of State for Work and Pensions [2024] UKUT 410 (AAC), Judge Fitzpatrick explained that when applying the definition of “engage socially”, it is necessary to do it in “an appropriately holistic manner” (at [19].

14.

This makes sense given the drafting of the definition: depending on the facts of a case, a person who cannot do one or other of (a) and (b) is unlikely to be able to do (c), though it cannot always be ruled out. Indeed, it is a natural reading of the definition taken as a whole that the ability to do (c) follows from abilities to do (a) and (b). Accordingly, to this extent the definition is not cumulative. Rather, it is a “holistic” assessment of the claimant’s abilities “in the round” that is required. However, mindful of the objective standard which applies in a PIP assessment of difficulties with activities, the ability to engage socially has a “low threshold” (Hickey [66]) and this is true for all of the elements of the definition.

I am not sure of the extent to which the forensic points made by the Secretary of State assist with construing how the definition, and (a)-(c), is to be read. As a matter of evidence, an ability to do (c) may follow from the ability to do (a) and (b), but it may not. Nor am I clear how a holistic assessment assists either, in terms of statutory construction; save that it may suggest that all of (a) to (c) need to be considered. The critical relevant issue to address in terms of statutory construction, in my judgement, is whether an ability to do both (a) and (b) (that is to be able to interact with others in a contextually and socially appropriate manner and understand body language), means as matter of law that the person meets (c) (that is, that they can therefore establish relationships). How a decision maker should assess satisfaction of the correct legal test on the evidence is another matter.

Even ignoring the potential statutory dislocation arising from the continued use of “engage socially” in the definitions section in Part 1 of Schedule 1 to the PIP Regs, the use of the word “means” in that definition is important as it shows that the list at (a) to (c) below it is exhaustive about what “engage socially” encompasses for the purposes of Schedule 1 to the PIP Regs. And, as I have concluded above, that list should also be read as providing an exhaustive list of what to “engage with other people face to face” means or includes.

The “and” used in the (a) to (c) list is also important. On the face of it, “and” being used instead of “or” shows that each of (a) to (c) need to be satisfied for the purposes of PIP if a person is to be found to be able to engage with other people face to face. A person who can interact with others in a contextually and socially appropriate manner and understand body language but cannot establish relationships, is not someone who can engage socially/engage with other people face to face, as they cannot do one of the things which define, for the purposes of PIP, what is needed for a person to be able to engage socially/engage with other people face to face.

Nor, again as a matter of statutory construction, can it be the case that what is listed in (c) is simply the sum of (a) and (b). The definition of “engage socially” (and “engage with other people face to face”) was (and is) plainly intended to involve three distinct and separate conditions, otherwise there would no need for condition (c). It follows that the ability to establish relationships must have a distinct and separate content from the abilities to interact with others in a contextually and socially appropriate manner and to understand body language.

My view about correct interpretation of paragraphs (a)-(c) in the statutory definition of engage socially is the same as that of Judge Jacobs in the first two sentences in paragraph [13] and paragraph [14] of RC. Comity requires me to follow RC on this point unless I consider it was wrongly decided. I do not consider RC to have been wrongly decided on this point. In fact for the reasons I have sought to give above, in my judgement it was correctly decided on this point. Moreover, nothing said by the Court of Appeal in paragraph [63] of Hickey requires a different conclusion. When read in context, and particularly with paragraphs [61]-[62] and [64] of Hickey, all the Court of Appeal was rejecting in paragraph [63] was an argument that the First-tier Tribunal had not applied the “establish relationships” test to the evidence before it. The Court of Appeal was not ruling that no such test arose or that it was no more than the sum of (a) and (b) in the definition of “engage socially”. As the Court of Appeal concluded in paragraph [64] of Hickey, the First-tier Tribunal’s findings in that case made “it clear beyond doubt that the appellant was able to interact with others and establish relationships”. At highest, all these passages in Hickey are about is the means by which the statutory tests may be satisfied on the evidence. Treating satisfaction of (a)-(c) “in the round” and not one after the other is no more than one evidential approach, and Hickey is doing no more than setting out that no specific approach to the evidence was required

I turn then to the issue of whether RC’s view that a brief conversation with a stranger about the weather while waiting for a bus would not constitute “establishing a relationship” is inconsistent with what was said in paragraph [66] of Hickey that activity 9 “encompasses all forms of social engagement, whether the 'relationship' established lasts ten minutes, ten days or ten years.” In my judgement, RC is consistent with Hickey and remains good law on this point.

I think it is not unfair to say that the focus of the Secretary of State’s argument on this point has not always remained entirely the same. In submissions which she made in December 2024 she argued, in summary, that:

“6…….the Respondent’s position is that the law relating to daily living activity 9 is correctly stated in Hickey and that RC must be understood in light of that. While the ruling in RC can be read consistently with Hickey, what is important for fact finding in relation to daily living activity 9 is paragraph 66 in Hickey, where the Court of Appeal explains – to paraphrase – that it is the context of social engagement which is important, not its duration, and whether, in the particular context, a person can engage with others appropriately.”

Subject to determining the effect of paragraph [66] of Hickey, I find little in the Secretary of State’s paraphrase which jars, or is inconsistent, with RC. Judge Jacobs made it plain in paragraph [14] of RC, in terms of time alone as a factor, that “[r]elationships vary in duration (from fleeting to life-long)”.

Later in the same written submission, however, the Secretary of State argued that paragraph [13] of RC’s view thata brief conversation with a stranger while waiting for a bus does not involve “establishing a relationship” was not correct in the light of Hickey “in so far as the duration of a relationship is a relevant consideration”. The Secretary of State argued that instead “it is the context of the relationship which is material and that a person can interact appropriately with others face to face in the relevant context”. Yet later in that submission the Secretary of State contended that the “key question is whether, for a particular person, he or she is able to interact with others in a contextually and socially appropriate manner” (the underlining is as in the original). By the concluding paragraph of the submission the Secretary of State set out her position as being that:

“….a person who can, in face to face engagement with another person, “answer a question or [respond] to a statement with a polite reply” can engage with others in a contextually and socially appropriate manner, and to that extent can have a relationship with others such that no award of points under activity 9 would (all other things being equal) be made.”

The Secretary of State made much the same point in her skeleton argument (and in the hearing), in arguing:

“20.

The key question is whether, for a particular person, he or she is able to interact (or relate) with others in a contextually and socially appropriatemanner…..

21.

If a person can engage appropriately in verbal interactions with other persons face to face, for example, in the supermarket, then they can engage socially even though any ‘relationship’ between the participants is short or fleeting…”

The first difficulty with this final argument is it plays somewhat fast and loose with the statutory language. It elides the ability to interact with the ability to “engage” or “relate” when the word relate does not feature in the statutory language and where to the word engage is part of the statutory phrase which is defined by (a) to (c). To “engage” with others sits outside, and so is legally irrelevant to, the statutory tests relevant under activity 9.

The related difficulty with this argument is that it collapses the test of having an ability to “establish relationships”, in paragraph (c) of the definition of “engage socially”, into the test in paragraph (a), namely whether the person is able to interact with others in a contextually and socially appropriate manner. As I have set out above, that approach is wrong as a matter of law. The claimant who is able to have a brief conservation with a stranger about the weather may in so doing be evidencing an ability to interact with others in a contextually and socially appropriate manner; though even there the context may be important because no more than a quick nod or grunt of assent in reply might not evidence a socially appropriate response. But satisfaction of (c) requires more than satisfying (a). The mere answering of a question is not, without more, establishing a relationship for the purposes of (c) in the definition of engage socially, as RC correctly decided. This is not just a product of time, moreover, but because of the nature, content and context of that which is occurring between the two people.

I agree therefore with the appellant that the mere reciprocation of exchanges, such as when speaking briefly about the weather, or simply answering ‘cash’ to the question ‘cash or card’ asked by the checkout operator in the supermarket, constitutes evidence of the establishment of a relationship. It may amount to evidence of the two people interacting with each other in a contextually and socially appropriate manner. But without more in terms of context, the brief, one-off conversation does not shows the establishing of a relationship.

As for Hickey, nothing said in it in my judgement sits contrary to anything RC held. Other than the reasons I have already given, my reasons for so concluding are as follows.

First, it seems to me clear from what Lord Justice Hickinbottom said in particular in Hickey, but also from paragraphs [2], [42] and [64] in Lord Justice Coulson’s judgement, that the Court of Appeal did not consider it was deciding any points of statutory interpretation (or any other points of wider legal significance) concerning daily living activity 9 in Schedule 1 to the PIP Regs. The ratio of Hickey, at highest, is no more than the First-tier Tribunal did not err in law in its application of activity 9 to the evidence and arguments before it. As Lord Justice Hickinbottom put it in paragraph [72] of Hickey, none of the three legal arguments before the Court of Appeal (so, including “the relationships point”) arose on the facts of the case before it.

Second, and as a result, Lord Justice Coulson’s remarks in paragraph [66] of Hickey are no more than obiter.

Third, those paragraph [66] remarks when considered properly in context are at best weak obiter or are really no more than remarks about the facts of the Hickey case itself.

It is for all these reasons that I have concluded that RC remains good law and is not affected by anything decided by the Court of Appeal in Hickey.

For the reasons set out above, the appeal succeeds. The Upper Tribunal is not able to re-decide the first instance appeal and has not been asked to do so . The appeal will therefore have to be re-decided afresh by a completely differently constituted First-tier Tribunal, after an oral hearing.

The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether her appeal will succeed on the facts before the new First-tier Tribunal as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.