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

In assessing verbal communication for Personal Independence Payment, a tribunal must assess communication by the spoken word. It must not treat reading, writing, interpreting body language, or text-based telephone functions as verbal communication. The assessment must reflect ordinary daily life rather than a sheltered routine adopted to avoid the effects of disability.

Activities for verbal communication and face-to-face social engagement may both score, but they address different needs. Communication difficulties already assessed under activity 7 must not be duplicated under activity 9. Social support under activity 9 must be needed during, or closely connected with, the face-to-face engagement. It entails more personal support than mere prompting, although it need not involve constant vigilance.

The claimant, who had a significant lifelong hearing impairment, appealed after the First-tier Tribunal upheld a refusal of Personal Independence Payment. The tribunal had awarded four points for communicating verbally and two points for engaging with other people face to face.

The Secretary of State accepted that the First-tier Tribunal had erred, but the parties differed on the legal approach to the two activities in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013. The central issues were the meaning of verbal communication, the relevance of adaptations to daily life, and the distinction between prompting and social support in face-to-face engagement.

1. Appeal allowed. Upper Tribunal Judge Gray set aside the First-tier Tribunal’s decision for errors of law and remitted the case to a differently constituted First-tier Tribunal for a fresh hearing.

2. For activity 7, communicating verbally is a two-way process concerned with expression and understanding through the spoken word. Reading, writing, body-language interpretation and text-based communication do not form part of that assessment. In this case, lip-reading was disregarded under the Secretary of State’s concession because the reliability criteria were not met, but the judge held that a general exclusion of lip-reading could not be read into the legislation without amendment.

3. The First-tier Tribunal had wrongly assessed the claimant’s overall communication ability. It had impermissibly relied on her ability to see, read and write. It also had to assess the impact of noise, telephone use and other conditions in ordinary life. A claimant must not be treated as unaffected merely because she routinely selects quieter environments to mitigate disability-related difficulties. The tribunal must distinguish genuine personal choice from activity constrained by disability.

4. A claimant may score under both activities 7 and 9, but there is no automatic overlap. Activity 7 assesses practical verbal-communication difficulties. Activity 9 concerns social interaction. A tribunal must exclude from activity 9 communication support already accounted for under activity 7, while considering any separate anxiety or emotional difficulty in engaging socially.

5. Social support under activity 9(c) is more than prompting from a person who happens to be trained or experienced. It concerns personal and intimate assistance during the social situation, normally involving physical presence and a willingness to intervene beyond words. It need not require constant vigilance. Therapeutic or other general support given in advance to improve later confidence does not itself establish a need for social support while the activity is performed.

6. The tribunal also had to assess engagement with people generally, including unfamiliar people and the formation of new relationships. Ability to socialise with family, friends or colleagues did not itself establish an ability to engage socially, to the defined standard, without support.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the claimant’s appeal, set aside the First-tier Tribunal’s decision, and remitted the case to a freshly constituted First-tier Tribunal.
• First-tier Tribunal, Social Entitlement Chamber, Cheltenham: On 10 March 2015, upheld the Personal Independence Payment decision awarding six daily-living points and no mobility points.