Secretary of State for Work and Pensions v GJ

The statutory definitions of complex verbal information and complex written information in the Social Security (Personal Independence Payment) Regulations 2013 are clear and must be applied. A tribunal errs in law if its reasons do not show awareness and application of those definitions when awarding points under activities 7 and 8.

Activity 7 concerns the functional ability to communicate verbally. Activity 9 concerns social engagement. Anxiety or another mental-health condition may affect either activity, but the same difficulty arising from fear of social engagement should not be counted under both. Points under both activities may be awarded only where there is a separate impairment of verbal communication.

The Secretary of State appealed against a First-tier Tribunal decision of 7 January 2015, made under reference SC13/14/00282. The First-tier Tribunal had awarded the claimant the enhanced-rate daily living component of personal independence payment from 25 July 2013.

The claimant had schizophrenia and lived in supported accommodation. The First-tier Tribunal awarded points, among other matters, for needing communication support with complex verbal information and prompting with complex written information. The Secretary of State contended that the tribunal had failed to apply the definitions in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013. A further issue concerned the proper separation of verbal communication from social engagement.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for material error of law and the case was remitted to a differently constituted First-tier Tribunal.

2. The First-tier Tribunal had awarded points under descriptors 7(c) and 8(c), but its reasons did not refer to, or demonstrate the application of, the definitions of complex verbal and written information in Part 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013. Those definitions set a specific statutory meaning which decision-makers and tribunals must apply. The tribunal appeared instead to have used the ordinary meaning of “complex”.

3. The omission was material. Without the points awarded under descriptors 7(c) and 8(c), the claimant would have had only seven points, even allowing for the additional point considered under managing therapy or monitoring a health condition. That would not establish entitlement to personal independence payment.

4. Although not necessary to the result, activity 7 and activity 9 test different functions. Anxiety caused by mental-health difficulties can potentially impair verbal communication for activity 7. However, where the difficulty is caused by fear of engaging socially, it will ordinarily fall within activity 9 alone. Both activities may be satisfied only if anxiety separately impairs the function of verbal communication as well as social engagement.

5. A fresh tribunal must make its own findings on all the evidence, apply the statutory definitions, and assess entitlement as at the Secretary of State’s decision of 16 July 2014. Later evidence may be considered if it relates to that time.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision for error of law, and remitted the case for rehearing.
• First-tier Tribunal: On 7 January 2015, allowed the claimant’s appeal against the Secretary of State’s decision of 16 July 2014 and awarded the enhanced-rate daily living component.