Secretary of State for Work and Pensions v MM (Scotland)

For descriptor 9c of Activity 9 in the Social Security (Personal Independence Payment) Regulations 2013, a claimant needs “social support” where effective engagement with other people face to face requires support from someone trained or experienced in assisting social engagement. Prompting may constitute social support. Familiarity or trust alone is insufficient.

The supporter need not be present during the engagement. Support given beforehand or otherwise outside the engagement may qualify where the claimant currently needs it to enable engagement. The assessment is fact-sensitive and concerns the help needed, rather than merely the help actually received.

The respondent claimed personal independence payment because, among other matters, his mental health affected his ability to engage with other people face to face. The First-tier Tribunal awarded two points under Activity 9b for needing prompting, rather than four points under Activity 9c for needing social support.

The Upper Tribunal set aside that determination for inadequate reasons and findings, and remitted the claim. The Inner House refused the Secretary of State’s appeal against the Upper Tribunal’s guidance: [2017] CSIH 57. It held that prompting and social support could overlap and that social support need not be contemporaneous with the engagement.

The Supreme Court considered what distinguishes social support from prompting and whether qualifying support must be provided during the face-to-face engagement.

1. The appeal was allowed in a limited sense. The Supreme Court accepted the principal conclusions of the Inner House but interpreted the provisions differently in two respects. Lady Black gave the unanimous judgment, with which Lady Hale, Lord Kerr, Lord Hodge and Lord Sales agreed.

2. The assessment begins by identifying the help which the claimant needs to engage with other people face to face. It concerns needed help, not merely help actually received. Support which would be welcome or generally comforting does not suffice; it must be needed to enable the engagement to occur.

3. “Social support” in descriptor 9c is not confined to the forms of “aid” defined in Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013. “Support” is a broad term capable of covering varied responses to claimants’ individual needs. Prompting may be social support, but it is not the only possible form.

4. The distinction between descriptors 9b and 9c lies in the claimant’s need for the support to be provided by someone trained or experienced in assisting people to engage in social situations. A family member or friend may possess the necessary experience. Familiarity, trust or the comfort of a close relationship is not enough. If ordinary lay help would enable engagement, descriptor 9c is not satisfied. The Inner House’s suggestion that trained or experienced assistance could qualify merely by increasing the help’s effectiveness was therefore too broad.

5. Descriptor 9c does not require the supporter to be present during the face-to-face engagement. Support given before, after or otherwise outside the engagement may qualify where it enables the particular claimant to engage. Whether it does so is a question of fact and degree to be determined case by case.

6. The claimant must have a current and continuing need for the support throughout the relevant required period. A successful past intervention which has removed the need for further help cannot establish entitlement. Close attention to necessity, the words of descriptor 9c and the required period condition supplies the appropriate temporal boundary. The Inner House’s alternative formulation requiring a “temporal or causal link” should not be adopted.

7. The respondent’s claim remained remitted to the First-tier Tribunal for the factual findings and determination required to decide entitlement.

1. United Kingdom Supreme Court: Allowed the Secretary of State’s appeal in a limited sense, adopting a slightly different interpretation from the Inner House: [2019] UKSC 34.

2. Inner House of the Court of Session: Refused the Secretary of State’s appeal against the Upper Tribunal’s guidance and remitted the claim for determination in accordance with its opinion: [2017] CSIH 57.

3. Upper Tribunal: Set aside the First-tier Tribunal’s determination because its reasons and factual findings were inadequate. It remitted the claim for rehearing with directions concerning Activity 9.

4. First-tier Tribunal: Dismissed the respondent’s appeal and awarded two points under descriptor 9b rather than four points under descriptor 9c.