TL v Secretary of State for Work and Pensions

For personal independence payment activity 9, the statutory definition of “engage socially” is a legal proxy for “engage with other people face to face”. Its three elements are distinct and cumulative: contextually and socially appropriate interaction, understanding body language, and establishing relationships.

A brief, one-off exchange with a stranger may demonstrate appropriate interaction, but does not, without more, establish a relationship. The length of an encounter is not decisive. RC v Secretary of State for Work and Pensions remains good law and is consistent with [2018] EWCA Civ 851; remarks in the latter about short relationships were obiter and did not determine what is necessary to establish one.

The appellant challenged the First-tier Tribunal’s dismissal of her appeal against the refusal of personal independence payment. The First-tier Tribunal awarded seven daily-living points but none under activity 9, “engaging with other people face to face”.

The parties agreed that the First-tier Tribunal had materially erred in law because it had not properly considered conflicting evidence or adequately explained its findings. The Upper Tribunal nevertheless addressed the disputed relationship between RC v Secretary of State for Work and Pensions, [2017] UKUT 352 (AAC), and Hickey v Secretary of State for Work and Pensions, [2018] EWCA Civ 851, concerning whether a brief exchange with a stranger can establish a relationship for activity 9.

1. The appeal was allowed. The First-tier Tribunal’s decision was set aside for error of law under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007. The appeal was remitted to an entirely differently constituted First-tier Tribunal for an oral rehearing.
2. The First-tier Tribunal had failed to consider all relevant evidence concerning activity 9, including evidence that potentially contradicted the findings on shopping, family and social contact. It had also failed to make sufficient findings about the nature and frequency of the appellant’s interactions and relationships.
3. Under Part 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013, “engage socially” means: interacting with others in a contextually and socially appropriate manner; understanding body language; and establishing relationships. The definition remains relevant to activity 9 because it operates as a legal proxy for “engage with other people face to face”.
4. The three elements have distinct content. The use of “and” requires each to be satisfied, and establishing relationships cannot be treated as merely the sum of appropriate interaction and understanding body language. A holistic assessment concerns how the evidence is evaluated; it does not remove the separate legal requirement to consider each element.
5. RC v Secretary of State for Work and Pensions correctly held that reciprocating exchanges, such as a brief conversation about the weather with a stranger at a bus stop, do not, without more, establish a relationship. The relevant question concerns the nature, content and context of the interaction, not duration alone.
6. Hickey v Secretary of State for Work and Pensions did not decide a general point of statutory interpretation. Its ratio was, at highest, that the First-tier Tribunal had not erred in law on the facts before it. The observations at paragraph [66] that activity 9 may encompass relationships lasting ten minutes, ten days or ten years were obiter and concerned the possibility that a short but sufficiently substantive encounter could establish a relationship. They did not contradict RC.
7. The remittal determined no question about the appellant’s ultimate entitlement. The new tribunal was required to assess the facts afresh in accordance with the law stated in this decision.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal and set aside the First-tier Tribunal’s decision under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007; remitted the appeal to an entirely differently constituted First-tier Tribunal for an oral rehearing.
• First-tier Tribunal (Social Entitlement Chamber), Bradford: dismissed the appellant’s appeal on 6 February 2023 and awarded seven daily-living points, with no points under activity 9.