[2025] UKUT 296 (AAC)

It is important to set out in some detail the relevant passages from Hickey given the range of the arguments before me on this appeal. The key passages are, however, at paragraphs [65]-[66] of Lord Justice Coulson’s judgement (with whom Lord Justices Hickinbottom and Kitchen (as he then was) agreed.

“Lord Justice Coulson

2.

In the further appeal to this court, a range of issues have been raised as to the interpretation of certain of the [PIP Regs], and the extent to which this court is bound by a decision on the relevant Regulations by the Inner House of the Scottish Court of Session ("the Inner House"). However, more prosaically, there are real issues as to whether these points of law matter at all, given the facts of the appellant's particular case….

9.

I note that 'Engage Socially' is not one of the relevant activities. It appears that, at the end of the drafting stage of the Regulations, the title of activity 9 was changed from "Engaging socially" to 'Engaging with other people face to face', but no concomitant change was made to the definition section. However, it was common ground that the definition of 'Engage Socially' was relevant to the interpretation of activity 9, and that is how the UT has approached this issue: see, for example, AM v SSWP [2015] UKUT 215 (AAC) at paragraph 11, and HJ v SSWP [2016] UKUT 0487 (AAC) at paragraph 16. Given the drafting history of the provision, I agree with that approach…..

11.

Although the evaluation process that I have described may seem formulaic and prescriptive, it is important to bear in mind that the descriptors represent a continuum of need; the differences between one descriptor and the next are matters of fact and degree, to be measured against the individual's needs. They are not a series of stepped changes. Moreover, the task of the respondent and/or the FTT is to identify which of the four descriptors best correlates with those needs. It is not a rigid box-ticking process, but a quintessentially evaluative exercise…..

14.

The respondent's written decision, dated 23 August 2014, awarded the appellant a total of 6 points in respect of daily living activities, 2 less than were required to qualify for the daily living component of a PIP. In respect of activity 9, the respondent said:

"You need to be prompted by another person to engage with other people. This gives you a score of 2."

The reasons for this conclusion were stated as follows:

"You did display signs of low mood and was [as I see] accompanied to the consultation by a friend and I accept that whilst you are able to engage you require prompting to do so."

15.

In response to the decision, on 9 September 2014, a Mr Khan (of Leicester City Council's care management division) wrote on behalf of the appellant to say that, save for three particular scores, she accepted the scores set out in the decision letter. The three challenges related to the scores for i) managing therapy or monitoring her health conditions; ii) reading and understanding signs, symbols and words; and iii) following the route of an unfamiliar journey. On the face of her response, therefore, the appellant accepted the 2 points awarded for activity 9.

16.

That acceptance was again confirmed in Mr Khan's written submissions dated 9 June 2015, provided for the purposes of the FTT appeal.

17.

However, at the FTT hearing itself on 21 August 2015, an attempt was made by Mr Khan to increase the score for activity 9 from 2 to 4 points. The basis for this late submission is not easy to discern from the manuscript notes of the hearing. Mr Royston [counsel for Mrs Hickey] pointed out that, when answering questions, the appellant said that it was her friend who had motivated her to go to exercise classes. She said that she could not go to the keep-fit classes on her own. She did not meet people at the gym: she went there for an hour and then came back home. It appears that at one point Mr Khan said: "prompt needed – but social engagement needed".

18.

The FTT refused the appeal. In paragraph 12 of their statement of reasons, they referred to the counselling which the appellant had had but which ended in November/December 2014. They recorded that the appellant had told them that she did not get on well with the counsellor because she was just given a book to write down what she did and when she was happy or sad. The appellant also said that the counsellor was Polish and she did not understand what she said. This is important because, as noted in Hickinbottom LJ's judgment, the only ground of appeal to this court for which, prior to the hearing, the appellant had permission was based on an argument that the involvement of the counsellor was not properly taken into account by the FTT….

21.

Although the FTT awarded the appellant 7 points in respect of the daily living component (an increase of one point), that was still insufficient to meet the threshold of 8 points for a PIP. In respect of activity 9, they awarded her 2 points. The specific reasons for this were said to be:

"18.

Activity 9 - Engaging face to face:

The Decision Maker has awarded Mrs Hickey 2 points for activity 9(b). The Tribunal accepts this to be correct. The Representative at the outset of the hearing submitted in respect of activity 9(c) - 4 points. From the evidence we heard we concluded that Mrs Hickey does not shy away from people. Sharron is her friend and she prefers (from our conclusions) her company and this a matter of choice. Mrs Hickey engaged with the HP [healthcare professional], us, her Representative and whoever she needs to. She goes to the nutrition programme; to the gym and she loves it; she attends counselling; weight loss programme; Let's Talk – Wellbeing; recently went and had her nails done as she is due to go on a holiday on 23.08.15 and is looking forward to going on it with her friend and this would not be uncommon to do. She has driven to Birmingham without her friend, albeit with her two disabled children. Mrs Hickey demonstrated excellent memory and gave us a good recollection of her conditions and history and how she recently bought another car. She cannot only engage with other people with support from someone who is trained or experienced in helping people to engage in social situations and as such does not satisfy the test for activity 9(c). The correct award is 9(b)."

[Lord Justice Coulson then makes extensive reference to the Inner House of the Court of Session’s decision in the Secretary of State for Work and Pensions v MMcK [2017] CSIH 57. The decision in MMcK was subsequently overturned by the Supreme Court in Secretary of State for Work and Pensions v MM (Scotland) [2019] UKSC 34. What was decided in MM is not directly relevant in this appeal.]

The Issues on this Appeal

38.

The appellant now takes three points, none of which was the subject of the original grant of permission. Permission was granted for each new ground by this court during the course of the appeal hearing.

39.

The appellant's Ground A (the "qualitative difference" point) was that, in this case, the FTT and the UT wrongly assumed that the things done by a provider of 'social support' must be something other than 'prompting'. Mr Royston said that the principal provider of social support was Sharron, the appellant's friend, who fell within the relevant definition because she was experienced in the provision of such support. Relying squarely on MMcK, Mr Royston said that, if the only need of a claimant was 'prompting', but 'prompting' done by someone who fell within the definition of 'social support' (because they had the necessary training or experience) then that meant that descriptor 9(c) applied, and not descriptor 9(b)…..

41.

Ground B (the "contemporaneity" point) was the appellant's contention that the FTT and the UT neglected to consider support "not given at the moment of social engagement", in particular support given by Sharron at times other than the appellant's face to face engagements with others…..

42.

The appellant's Ground C (the "relationships" point) was to the effect that the FTT and the UT erred in law because they neglected to consider whether the appellant was able to establish relationships, which was part of the definition of 'Engage Socially'. The respondent disputed Ground C on the facts. This was the one part of the appeal which was not affected by the debate about MMcK.

Approach to the Points of Law Raised by Grounds A and B.

43.

Because of the clear conclusions that I have reached on the facts of this case, it is unnecessary for me to express a concluded view on the points of law arising out of the decision of the Inner House in MMcK, or the argument about the potentially binding nature of that decision; and I do not consider that it would be helpful or appropriate for me to do so….

46…..for the reasons set out below, I consider that, even if it is assumed in the appellant's favour that the contentions of law made in her favour are correct, it avails her nothing. In my view, the appeal on Grounds A and B fails on the facts.

47.

Before explaining the reasons for that view in greater detail, it is necessary to highlight the unsatisfactory way in which the appellant's case has developed over the years. On two occasions prior to the FTT hearing, the appellant indicated that she did not challenge the award of 2 points for activity 9. Thus, none of Grounds A-C can be found in the written submissions provided in advance to the FTT, and it does not appear from the manuscript note of the hearing itself that any of these three points were raised orally. And, although the UT did refer to the qualitative difference point when refusing permission to appeal (because it had been referred to in the submissions), neither Ground B (the contemporaneity point) nor Ground C (the relationship point) arose, so there was no mention of either of them in the decision of UTJ Humphreys.

48.

In this way, as so often happens in public law cases, none of the three grounds of appeal now pursued arise directly out of the decision of the FTT, and only one (the qualitative difference point) arises out of the decision of the UT, and even then it is tangential to the UTJ's decision. This haphazard approach has been compounded by the fact that, prior to the hearing of this appeal, the only ground for which permission was granted to appeal to this court was an argument about the counsellor, which (as explained below) was doomed to fail….

Ground A: The 'Qualitative Difference' Point

49.

The appellant seeks to argue that, because she received support from her friend Sharron, who was experienced in providing encouragement and other elements of 'prompting', she qualified for the descriptor in 9(c). But there is nothing in the findings of fact by the FTT….which suggests that Sharron was involved in all of the appellant's face to face meetings: indeed, the findings (which repeatedly refer to 'friends' in the plural) appear to be to contrary effect.

50.

Furthermore, for this argument to work at all, it presupposes that Sharron was within the definition of 'social support', as a person 'experienced in assisting people to engage in social situations'…...There was no such evidence before the FTT. The absence of such evidence (or any relevant findings) was not a complaint made to the UT. In consequence, I consider that this point is not open to the appellant now.

Ground B: The Contemporaneity Point

56.

Again, I deal with this on the assumption that….'social support' can be given immediately before the engagement rather than during it; again, I conclude that this is of no help to the appellant on the facts of this case.

57.

First, there is nothing in the findings of the FTT to suggest that this argument was ever raised before them, and nothing that demonstrated that Sharron's support was ever given immediately prior to (but not at) the appellant's face to face engagements. Neither did this argument form part of the decision of the UT. For those reasons alone, I do not consider that it is a point available to the appellant on this appeal.

58.

Further, the contemporaneity point depends on Sharron being the individual from whom the pre-activity support would come. For the reasons already noted, there was no evidence that she had the experience that would trigger descriptor 9(c)……

Ground C: The Relationships Point

61….the appellant argued that neither the FTT nor the UT analysed or applied the definition of 'Engage Socially', and, that had they done so, they might have found that the appellant was not able to establish relationships without social support, and therefore satisfied descriptor 9(c).

62.

I reject this ground of appeal. First, it was not a point taken by the appellant before either the FTT or the UT. Mr Royston expressly accepted during the course of argument that the issue of whether the appellant could "establish relationships" was not in issue before the FTT. There was therefore no specific evidence on the point which Mr Royston now seeks to raise with us.

63.

Secondly, it is based on the premise that each aspect of the assessment has to be treated separately by the FTT, so that they deal with each limb one by one. That is incorrect: it is open to the FTT to treat all these matters in the round. That is what the FTT did in this case….

64.

Thirdly, I consider that those findings make it clear beyond doubt that the appellant was able to interact with others and establish relationships. The findings that the appellant "does not shy away from people", and that she "engaged well" with the HP, the FTT and "whoever she needs to", are more than sufficient to demonstrate that the appellant had a clear ability to establish relationships.

65.

At paragraph 44 of his skeleton, Mr Royston complains that the relationships which are referred to by the First Tier Tribunal were all established before the appellant's problems began. But there was no evidence of that. It is not open to Mr Royston to endeavour to try and fill the evidential gaps by way of his skeleton argument. Moreover, even on its face, that submission is plainly incorrect: for example, the relationship with the HP obviously came after her problems had begun.

66.

This error may have come about because it was inherent in Mr Royston's submissions that, for this purpose, 'relationships' meant only longer-term and regular relationships with others, as opposed to shorter encounters. He said that 'verbal interactions' were insufficient. Again, I disagree with that interpretation. That is not what activity 9 is all about. I consider that this activity encompasses all forms of social engagement, whether the 'relationship' established lasts ten minutes, ten days or ten years. As Ms Broadfoot put it, it is a low threshold. On the facts of the present case, that is why the FTT's finding that the appellant "does not shy away from people" is so significant.”

The effect of the Secretary of State’s argument is that what is said in paragraph [66] of Hickey is contrary to, and so (at least impliedly) has overruled, paragraph [13] of RC.

The appellant, as well as disagreeing about the effect of paragraph [66] in Hickey, sought to rely on the judgement of Lord Justice Hickinbottom in Hickey. As I read it, both Lord Justice Coulson and Lord Justice Kitchen agreed with Lord Justice Hickinbottom’s judgement, the relevant paragraphs of which are as follows (I have underlined the passages on which the appellant placed particular reliance):

“69…..I add some observations of my own only because of the unhappy way in which the issues with which he has dealt have come before this court.

70.

On 13 June 2016, Upper Tribunal Judge Jacobs granted permission to appeal to this court on one narrow ground, namely that, whilst Judge Humphrey had dealt with the support the appellant received from her friend, Sharron, she had arguably failed to deal with the support she received from her counsellor. That was, as Judge Jacobs understood it, the only ground upon which permission to appeal was sought. It was a discrete and narrow ground.

71.

However, when the grounds of appeal were filed with the appellant's notice on 6 September 2016, the ground for which permission had been given formed just part of one of the three grounds; and the (draft) amended grounds served in December 2016 effectively abandoned the ground for which permission had been granted in favour of the grounds described by Coulson LJ.

72.

No formal application to amend the grounds was ever made. This court granted permission to amend during the course of the substantive appeal hearing, because both parties had prepared fully to argue those new grounds; but, as Coulson LJ has described, the result has been that we have considered three points of law which, as hypothetical questions, may be both interesting and potentially challenging, but which do not arise on the facts of the case before us. In my respectful view, it is highly debateable whether permission would have been given for those grounds if, as should have happened, a prompt application to amend had been made and considered in late 2016. This court does not usually grant permission for academic issues which do not arise on the facts of the particular appeal.”