HB v Secretary of State for Work and Pensions (PIP)

Entitlement under the communicating verbally and engaging with other people activities must be assessed separately. A need for communication support under descriptor 7c does not automatically establish a need for social support under descriptor 9c, although the same difficulties may be relevant to both activities.

Activity 9 is not confined to mental, intellectual or cognitive impairments. A physical impairment, including hearing loss, may limit face-to-face engagement. Social support requires more than prompting and entails active assistance with engagement. A tribunal must identify the nature and extent of the support reasonably required and give adequate reasons for classifying it as prompting rather than social support.

The claimant, who had severe bilateral hearing loss, was refused the daily living component of personal independence payment. The decision maker awarded points for a need for communication support under descriptor 7c and prompting under descriptor 9b, but not social support under descriptor 9c.

The First-tier Tribunal, sitting at Kidderminster on 2 April 2015, confirmed that decision. On appeal, the Upper Tribunal considered whether an award under descriptor 7c automatically entailed an award under descriptor 9c, and whether the tribunal had adequately addressed the claimant’s asserted need for support in social situations.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law. It was set aside under section 12(2) of the Tribunals, Courts and Enforcement Act 2007 and remitted for a rehearing before a differently constituted tribunal.

2. Descriptors 7 and 9 in Part 2 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 assess different functional limitations. Activity 7 concerns the ability to express and understand verbal information. Activity 9 concerns functioning in a social environment. A claimant may score under both activities, but an award under descriptor 7c does not automatically establish entitlement under descriptor 9c.

3. Activity 9 may apply to any physical or mental condition which limits a claimant’s ability to engage with others face to face. It can therefore apply where hearing loss creates communication difficulties and consequential anxiety or difficulty in social settings. The relevant engagement is with people generally, rather than only persons whom the claimant knows well.

4. Social support requires something beyond prompting. It involves active assistance with engaging in social situations by a person trained or experienced in providing such assistance. Friends and family may provide it where they have the requisite knowledge and experience.

5. The tribunal had found that the claimant needed communication support, and there was evidence that background noise, group interactions and delayed understanding made social situations stressful. It did not ascertain the nature and extent of the support she reasonably required when interacting with others and establishing relationships. Nor did it explain why that support amounted only to prompting. Its reasons were therefore inadequate.

6. Fresh findings of fact were required. The new tribunal must reconsider the case entirely afresh, without regard to post-decision circumstances except insofar as later evidence relates to the circumstances at the date of decision. The Upper Tribunal made no finding on whether descriptor 9c was ultimately satisfied.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for error of law, and remitted the case to a differently constituted tribunal.

• First-tier Tribunal: On 2 April 2015, confirmed the refusal of the claimant’s appeal against the personal independence payment decision.