AH v The Secretary of State (PIP)

17. The First-tier Tribunal’s decision was that the claimant did not meet the threshold for an award of either component of PIP as the claimant scored only the following points: Daily living activity Description Points 2. Taking nutrition (d) Needs prompting to be able to take nutrition 4 3. Managing therapy or monitoring a health condition (b) Needs … (ii) supervision, prompting or assistance to be able to manage medication or monitor a health condition 1 9. Engaging with other people face-to-face (b) Needs prompting to be able to engage with other people 2 Mobility activity Description Points 1. Planning and following journeys (b) Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to the claimant 4

18. The Statement of Reasons for Decision (at pages 190 to 196 of the bundle) shows that, in coming to its decision, the First-tier Tribunal weighed the evidence before it. The tribunal dealt with each of the submissions made on behalf of the claimant.

19. In relation to the daily living activities the tribunal’s reasoning was as follows: (1) Descriptor 3(c) (Needs supervision, prompting or assistance to be able to manage therapy that takes no more than 3.5 hours a week) (see paragraph 16 of the Statement of Reasons at pages 192 to 193 of the Upper Tribunal bundle) In essence, the tribunal’s decision on this descriptor was that the smoking cessation advice and encouragement the claimant received from her GP and friends did not qualify as therapy as it was generic. It came to the same conclusion in relation to the help and encouragement given to the claimant to exercise. Therapy is limited by paragraph 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (the ‘PIP Regs’) to ‘therapy to be undertaken at home which is prescribed or recommended by a … registered … doctor…nurse ..or pharmacist.’ ‘Therapy’ itself is not defined and so bears its ordinary meaning which is ‘the medical treatment of disease; curative medical or psychiatric treatment’ (Oxford English Dictionary). Neither the weight loss/exercise advice nor smoking cessation advice given to the claimant qualified as therapy for the following reasons: (i) Advice and/or encouragement given by friends was excluded by paragraph 1 of the PIP Regs as it was not provided by a registered doctor, nurse or pharmacist; (ii) To the extent that the weight loss/exercise advice related to attendance at keep fit classes and attending appointments for counselling and ‘Let’s Talk-Wellbeing’ it was not ‘to be undertaken at home’ as required by the PIP Regs; (iii) Even where provided by a GP and to be undertaken at home, the smoking cessation and weight loss advice was not the medical treatment of disease nor was it curative treatment. There was no evidence that either the smoking or obesity caused or exacerbated any of the claimant’s existing medical conditions. . (2) Descriptor 9(c) (Needs social support to be able to engage with other people) (see paragraph 18 of Statement of Reasons for Decision at page 194 of the bundle). To qualify for four points under this descriptor the claimant must need ‘social support’ which is defined for the purposes of the PIP Regs as ‘support from a person trained or experienced in assisting people to engage in social situations.’ It had been accepted by the PIP case manager that the support and encouragement given by the claimant’s friend amounted to ‘prompting’ for the purposes of descriptor 9(b). ‘Prompting’ is defined in the PIP Regs as ‘reminding, encouraging, or explaining by another person.’ There was no evidence that the friend’s intervention amounted to more than prompting as so defined. The claimant’s representative argues that the difference between ‘social support’ (descriptor 9(c)) and ‘prompting’ (descriptor 9(b)) is simply the status of the provider. If the ‘reminding, encouraging, or explaining’ was given by a person who was ‘trained or experienced in assisting people to engage in social situations’ it was social support, otherwise it was prompting. It is accepted by the Department of Work and Pensions that ‘experienced’ people can include friends and family who know the claimant well. The claimant’s friend was ‘experienced’ for this purpose therefore the claimant was entitled to an award of four points under descriptor 9(c). ‘Social support’ is not defined but I agree with the Secretary of State’s submission that as a claimant requiring social support to be able to engage with other people scores double the points of a claimant who requires prompting to do so there must be a qualitative difference between the two descriptors, not simply a difference of provider. It sems to me that the assistance given to the claimant by her friend to enable her to engage with other people was no more than ‘prompting’ as defined above and did not amount to social support. The tribunal concluded that the evidence did not justify an award under descriptor 9(c) (see paragraph 18 of the Statement of Reasons at page 194 of the Bundle) and confirmed the award of two points under descriptor 9(b). I cannot find any fault with this conclusion.

20. In relation to the mobility activities the essence of the representative’s argument in his submission to me is that the tribunal ignored the evidence before it which was that the claimant needed someone to go with her on all journeys due to anxiety and panic attacks and that this evidence supported an award under either descriptor (d), or (f) of mobility activity 1.

21. In relation to the ability to ‘follow’ a route referred to in mobility descriptors 1(d) and 1(f) I agree with the analysis of Upper Tribunal Judge Jacobs in DC v Secretary of State for Work and Pensions [2015] UKUT 0344 (AAC) and Upper Tribunal Judge May QC in CSPIP/255/2015 as adopted by Upper Tribunal Judge Ward in HL v Secretary of State for Work and Pensions [2015] UKUT 694 (AAC) that these descriptors concern the ability to navigate only.

22. The claimant’s representative has pointed out that the Government’s consultation on the PIP assessment criteria and regulations (13 December 2012) confirmed that individual must be able to follow the route safely and this is reflected in regulation 9(2A) of the PIP Regs. There was no evidence that the claimant could not follow a route safely.

23. The tribunal’s decision was that the evidence did not support the conclusion that the claimant could not follow the route of either an unfamiliar or familiar journey (descriptor 1(d) and (f) respectively). It was clear that she was able to do both (see paragraph 20 of the Statement of Reasons at page 195 of the bundle). I can find nothing wrong with this conclusion.

24. For the above reasons the decision of the First-tier Tribunal of 21 August 2015 is not wrong in law. The appeal fails.’ (signed on the original) A L Humphrey Upper Tribunal Judge 20 May 2016