AH v The Secretary of State (PIP)

An appeal to the Upper Tribunal is confined to an error of law. It is not an opportunity to rehear the evidence. Under the Social Security (Personal Independence Payment) Regulations 2013, generic advice about smoking cessation or weight loss is not necessarily therapy. Therapy must meet the regulatory requirements and, in its ordinary sense, be medical or curative treatment of disease.

For engaging with other people, social support requires a qualitative difference from prompting; the provider’s status alone does not create that difference. The ability to follow a route concerns navigation. Anxiety requiring accompaniment does not establish inability to follow a familiar or unfamiliar route without evidence of a navigational or safety limitation.

The claimant appealed against a First-tier Tribunal decision of 21 August 2015 which had dismissed her appeal concerning entitlement to personal independence payment.

She contended that further points should have been awarded for managing therapy, engaging with other people, and planning and following journeys. The First-tier Tribunal had awarded points for prompting to take nutrition, manage medication and engage with others, and for prompting to undertake journeys to avoid overwhelming psychological distress.

The central question was whether the First-tier Tribunal had made an error of law in declining the further descriptors claimed.

1. Appeal dismissed. The First-tier Tribunal’s decision was not erroneous in law. An Upper Tribunal appeal is confined to legal error and is not a rehearing of the evidence: Yeboah v Crofton [2002] IRLR 634.
2. The Tribunal was entitled to find that smoking-cessation and weight-loss or exercise advice did not satisfy descriptor 3(c). Under paragraph 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013, qualifying therapy must be prescribed or recommended by an identified health professional and undertaken at home. In addition, the undefined word therapy bears its ordinary meaning of medical or curative treatment of disease. Generic advice and encouragement did not meet that description on the evidence.
3. The Tribunal correctly retained descriptor 9(b), rather than awarding descriptor 9(c). Social support must be qualitatively different from prompting. The fact that assistance is given by a person trained or experienced in assisting social engagement does not, by itself, convert reminders, encouragement or explanations into social support. The claimant’s friend provided no more than prompting.
4. The expressions “follow the route” in mobility activity 1(d) and (f) concern navigation only. The Judge approved the analyses in earlier Upper Tribunal decisions to that effect. Regulation 9(2A) also requires safe route-following, but there was no evidence that the claimant could not navigate or follow a route safely. The First-tier Tribunal was therefore entitled to refuse the unfamiliar- and familiar-journey descriptors.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the claimant’s appeal and held that the First-tier Tribunal decision was not wrong in law: [2016] UKUT 276 (AAC).
• First-tier Tribunal: on 21 August 2015, dismissed the claimant’s appeal concerning entitlement to personal independence payment.