Entitlement to personal independence payments

The Supreme Court has this month considered an appeal over entitlement to Personal Independence Payments. Leon Glenister explains the ruling.

The Supreme Court has handed down its judgment in Secretary of State for Work and Pensions v MM [2019] UKSC 34, providing important guidance on entitlement to Personal Independent Payment (“PIP”). The appeal had led to many cases before the First-tier Tribunal and Upper Tribunal to be stayed awaiting a decision.

The scheme for PIP entitlement is contained in Part 4 of the Welfare Reform Act 2012 and Social Security (PIP) Regulations 2013. Entitlement is judged by reference to “daily living activities”, one of which is “engaging with people face to face”.

Two levels of need in respect of that particular activity are “Needs prompting to be able to engage with other people” (which scores 2 points) and “Needs social support to be able to engage with other people” (which scores 4 points). Social support is defined as “support from a person trained or experienced in assisting people to engage in social situations” and it has always been accepted that this may include those whose experience derives from being a friend or relative who helps the claimant.

The Court examined two issues in relation to how “social support” differs from “prompting”.

First, the Supreme Court considered what made the two activities different. The starting point is to establish what the particular person needs (paragraph 30). The degree of support required for 4 points will be greater than for 2 points, and what differentiates the help is for 4 points it must need to come from a person who is trained or experienced (paragraph 33). As to friends and family, what is required for 4 points is help from someone who is not just familiar with the claimant, but who is also experienced in assisting engagement in social situations (paragraph 34). The decision maker should ask the right questions to elucidate which side of the line a particular claimant falls on (paragraph 38).

Second, the Court considered the assertion that social support must be contemporaneous with the engagement. The Court did not place such a restriction on the activity, rather whether support constitutes a need is a matter of fact and degree for individual cases (paragraph 46). The Court referred to the “period condition”, namely that the descriptor must be satisfied on over 50% of the days over the prior 12 months (paragraph 43). It would not cover past successful psychiatric or psychological intervention.

Leon Glenister is a barrister at Landmark Chambers. Together with Samantha Broadfoot QC, he appeared for the Secretary of State, along with Julius Komorowski of Terra Firma Chambers.

Richard Drabble QC, also of Landmark, appeared for Mind, leading Tom Royston of Garden Court North.