Secretary of State for Work and Pensions v MM (Scotland) [2019] UKSC 34

The Supreme Court considered the meaning of 'social support' in descriptor 9c of the PIP daily living activity 'engaging with other people face to face'. It held that social support may include prompting, need not be contemporaneous with the engagement, and must come from someone trained or experienced.

Facts

The respondent, a man in his forties with mental health difficulties, claimed personal independence payment (PIP) under the Welfare Reform Act 2012 and the Social Security (Personal Independence Payment) Regulations 2013. His entitlement turned on the number of points attributed to him under Activity 9 in Part 2 of Schedule 1 to the Regulations, concerning ‘engaging with other people face to face’. The First-tier Tribunal awarded him two points under descriptor 9b (‘needs prompting to be able to engage with other people’), rather than the four points under descriptor 9c (‘needs social support to be able to engage with other people’) which would have qualified him for PIP.

The Upper Tribunal allowed his appeal, finding the FTT had inadequately explained its decision, and issued directions on the meaning of ‘social support’. The Inner House of the Court of Session dismissed the Secretary of State’s appeal but modified the directions. The Secretary of State appealed to the Supreme Court.

Issues

Two issues arose:

The qualitative issue

What distinguishes ‘social support’ in descriptor 9c from ‘prompting’ in descriptor 9b, given that ‘social support’ is defined as ‘support from a person trained or experienced in assisting people to engage in social situations’ and ‘prompting’ means ‘reminding, encouraging or explaining by another person’?

The timing issue

Whether social support under descriptor 9c must be contemporaneous with the face to face engagement, or whether help given in advance may qualify.

Arguments

Secretary of State

The Secretary of State accepted that social support may consist of prompting but submitted that the distinguishing feature is that the help must be given by a trained or experienced person by reason of their training or experience; familiarity alone is not enough. On timing, the Secretary of State argued that social support must be contemporaneous because the assessment calibrates the claimant’s functional limitations during the activity, descriptor 9c uses the present tense (‘needs’), effective support requires the supporter to perceive and react to the engagement, and any wider construction would create inconsistencies with other descriptors such as communication support.

Respondent and Intervener (Mind)

The respondent supported the Inner House’s approach. Mind, intervening, concentrated on the qualitative issue and aligned with the respondent, submitting that social support takes many forms depending on individual needs.

Judgment

Lady Black (with whom Lady Hale, Lord Kerr, Lord Hodge and Lord Sales agreed) allowed the appeal only in the limited sense of modifying the Inner House’s interpretation.

The qualitative issue

The Court rejected the Secretary of State’s narrow approach confining ‘support’ to the forms captured by the defined term ‘aided’, which would be inconsistent with the objective of creating a benefit easier to understand that reaches those needing extra support. Prompting may constitute social support. What differentiates descriptor 9c from 9b is that the claimant needs the support to come from a person trained or experienced in assisting people to engage in social situations. The training or experience of the helper is what the claimant depends upon, not merely a close and comforting relationship. Familiarity alone does not transform prompting into social support.

The Court endorsed, with one caveat, the Inner House’s formulation. It expressed caution about the Inner House’s reference to help that requires delivery by a trained or experienced person ‘to render it effective or to increase its effectiveness’. Need is not a relative term: the claimant either needs or does not need trained/experienced help. If only such help will be effective, the claimant needs it; if ‘lay’ help would suffice, the claimant falls within 9b rather than 9c.

The timing issue

The Court rejected the requirement of contemporaneity. There is nothing in the wording of descriptor 9c, or the definition of ‘social support’, requiring the supporter’s actual presence during the engagement, or that support must coincide with the engagement. The present tense (‘needs’) requires a continuing need over the required period, but does not exclude assistance given outside the confines of the engagement itself. Social support may include preparation in advance, such as discussion of worst-case scenarios, or reassurance by proximity. Insisting on physical presence could impede progress towards greater independence and could be counter-productive in sensitive engagements such as medical examinations.

The Court declined to adopt the Inner House’s formulation of a ‘temporal or causal link’, considering it unhelpful. Whether support qualifies will be a question of fact and degree, determined case by case by close attention to the wording of descriptor 9c and the required period condition.

Implications

The decision clarifies the proper construction of descriptor 9c of Activity 9 in the PIP assessment framework. It confirms that ‘social support’ and ‘prompting’ are not mutually exclusive categories; the critical distinction lies in whether the claimant needs the support to come from a person trained or experienced in assisting people to engage in social situations. Family members and friends may qualify as ‘experienced’ if they have the relevant experience, but familiarity or trust alone is insufficient.

The ruling also confirms that social support need not be provided contemporaneously with the face to face engagement. Preparatory assistance, and support provided at a distance, may qualify if the claimant genuinely needs it to engage. Decision makers must carefully probe the facts of each case, including the nature of the help provided, how the helper came to know what to do, and what would happen without that person.

The decision is of practical significance to PIP claimants with mental health conditions, cognitive impairments or intellectual disabilities, and to those assisting them, including tribunals and decision makers in the DWP. It resists a narrow, technical construction that would have limited access to the higher-point descriptor, while maintaining that the need must be genuine and the helper must possess relevant training or experience. The Court acknowledged that borderline cases will require sensitive factual investigation, and that concerns about inconsistency are to be managed through close attention to the statutory wording.

Verdict: Appeal allowed in a limited sense only: the Supreme Court interpreted the relevant provisions slightly differently from the Inner House, rejecting the Secretary of State’s narrower construction on both the qualitative and timing issues but modifying aspects of the Inner House’s formulation. The case remains remitted to the First-tier Tribunal for factual determination.

Source: Secretary of State for Work and Pensions v MM (Scotland) [2019] UKSC 34