Hickey v The Secretary of State for Work and Pensions

A claimant must identify the aspects of a personal independence payment decision which are challenged and provide the tribunal with the agenda for the appeal. The First-tier Tribunal should investigate those issues inquisitorially, but need not explore every possible descriptor or evidential issue.

Assessment under the daily living descriptors is an evaluative exercise. The tribunal must select the descriptor which best corresponds to the claimant’s needs. A friend may qualify as an experienced provider of social support, but evidence about the nature, frequency and effect of that experience is ordinarily required. For activity 9, establishing a relationship has a low threshold and includes social encounters of any duration.

The claimant received seven points towards the daily living component of a personal independence payment, one fewer than the statutory threshold. The First-tier Tribunal awarded two points under activity 9(b) because she needed prompting to engage with other people. It rejected her contention that she needed social support under activity 9(c). The Upper Tribunal dismissed her appeal in decision CPIP34012015.

The further appeal concerned whether prompting could overlap with social support, whether support could be provided before a face-to-face engagement, and whether the tribunals had adequately considered the claimant’s ability to establish relationships. It also raised, but did not require the court to determine, the authority in England and Wales of the Inner House’s decision in The Secretary of State for Work and Pensions v MMcK [2017] CSIH 57.

1. Appeal dismissed. Even assuming that the Inner House had correctly interpreted activity 9 in The Secretary of State for Work and Pensions v MMcK [2017] CSIH 57, the claimant could not succeed on the First-tier Tribunal’s findings of fact.
2. A friend or family member can be a person experienced in assisting people to engage in social situations. Where that experience is relied upon to move the assessment from prompting under descriptor 9(b) to social support under descriptor 9(c), evidence is ordinarily required about its nature, frequency and effect. No such evidence or finding existed. The tribunal was entitled to conclude that occasional encouragement and reminding best corresponded to descriptor 9(b).
3. The claimant supplies the agenda for a First-tier Tribunal appeal by identifying the parts of the original decision which are challenged and explaining why. The tribunal may investigate the identified issues inquisitorially, but has no obligation to ask every possible question about every descriptor or to pursue unraised issues on the chance that they may later become material. An evidential omission caused by the claimant’s failure to raise an issue cannot ordinarily ground a later appeal.
4. The tribunal could assess the elements of engaging socially in the round. It did not have to address interaction, understanding body language and establishing relationships as separate steps. A relationship for activity 9 may last ten minutes, ten days or ten years. The tribunal’s findings that the claimant did not shy away from people and engaged with those whom she needed to meet established her ability to form relationships.
5. Hickinbottom LJ emphasised that grounds of appeal must identify clearly and concisely each alleged error in the decision below. The appellate court’s jurisdiction is constrained by the grounds and the permission granted. An appellant wishing to add a ground after obtaining permission must apply formally and promptly to amend under the Civil Procedure Rules 1998. Kitchin LJ agreed with both judgments.

1. Court of Appeal (Civil Division): The appeal was dismissed in [2018] EWCA Civ 851. The court assumed the claimant’s proposed interpretation of activity 9 in her favour but held that all three grounds failed on the facts.
2. Upper Tribunal (Administrative Appeals Chamber): UT Judge Humphreys dismissed the appeal in CPIP34012015, holding that the First-tier Tribunal had made no error of law and that the assistance provided amounted to prompting rather than social support.
3. First-tier Tribunal: The tribunal dismissed the appeal against the personal independence payment decision. It increased the daily living score from six to seven points but retained the two-point award under activity 9(b), leaving the claimant below the eight-point threshold.