Hickey v The Secretary of State for Work and Pensions [2018] EWCA Civ 851

Case No C3/2016/3510[2018] EWCA Civ 851
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Upper Tribunal (Administrative Appeals Chamber)
UT Judge Humphreys
CPIP34012015
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/04/2018
Before
LORD JUSTICE KITCHINLORD JUSTICE HICKINBOTTOMLORD JUSTICE COULSON
Between
Amanda HickeyAppellantThe Secretary of State for Work and PensionsRespondent
Mr Tom Royston (instructed by Coventry Law Centre) for AppellantMs Samantha Broadfoot QC (instructed by Government Legal Department) for RespondentHearing Hearing date: Wednesday 13th March 2018
Judgment

Introduction

[1]By a decision letter dated 23 August 2014, the respondent decided that the appellant did not meet the statutory criteria for a Personal Independence Payment (“PIP”). The appellant appealed. On 21 August 2015, the First-tier Tribunal (“FTT”) rejected her appeal. On 20 May 2016, the Upper Tribunal (“UT”) refused the appeal against the decision of the FTT.[2]In the further appeal to this court, a range of issues have been raised as to the interpretation of certain of the Social Security (Personal Independence Payment) Regulations 2013 (“the relevant Regulations”), and the extent to which this court is bound by a decision on the relevant Regulations by the Inner House of the Scottish Court of Session (“the Inner House”). However, more prosaically, there are real issues as to whether these points of law matter at all, given the facts of the appellant’s particular case.

The Statutory Regime

[3]Section 77 of the Welfare Reform Act 2012 provides that an allowance, known as a Personal Independence Payment (“PIP”) is payable to those with impaired functionality in accordance with Part 4 of the Act. Entitlement to a PIP may be an entitlement to(i) the daily living component or(ii) the mobility component or(iii) both of those components. This appeal concerns only the daily living component, which is dealt with in section 78 of the Act.[4]Section 78 provides as follows:
“Daily living component (1) A person is entitled to the daily living component at the standard rate if— (a) the person’s ability to carry out daily living activities is limited by the person’s physical or mental condition; and (b) the person meets the required period condition. (2) A person is entitled to the daily living component at the enhanced rate if— (a)the person’s ability to carry out daily living activities is severely limited by the person’s physical or mental condition; and (b)the person meets the required period condition. … (4) In this Part “daily living activities“ mean such activities as may be prescribed for the purposes of this section. (5) See sections 80 and 81 for provision about determining— (a) whether the requirements of subsection (1)(a) or (2)(a) above are met; (b) whether a person meets “the required period condition” for the purposes of subsection (1)(b) or (2)(b) above…” (a) the person’s ability to carry out daily living activities is limited by the person’s physical or mental condition; and (b) the person meets the required period condition. (a)the person’s ability to carry out daily living activities is severely limited by the person’s physical or mental condition; and (b)the person meets the required period condition.

(b) or (2)(b) above…”

[5]Section 80 sets out how a person’s ability to carry out daily living activities (or mobility activities) is to be determined. The relevant sub-sections are as follows:
“Ability to carry out daily living activities or mobility activities (1) For the purposes of this Part, the following questions are to be determined in accordance with regulations— (a) whether a person’s ability to carry out daily living activities is limited by the person’s physical or mental condition; (b) whether a person’s ability to carry out daily living activities is severely limited by the person’s physical or mental condition; (c) whether a person’s ability to carry out mobility activities is limited by the person’s physical or mental condition; (d) whether a person’s ability to carry out mobility activities is severely limited by the person’s physical or mental condition. (2) Regulations must make provision for determining, for the purposes of each of sections 78(1) and (2) and 79(1) and (2), whether a person meets “the required period condition” (see further section 81). (3) Regulations under this section— (a) must provide for the questions mentioned in subsections (1) and (2) to be determined, except in prescribed circumstances, on the basis of an assessment (or repeated assessments) of the person; (b) must provide for the way in which an assessment is to be carried out; (c) may make provision about matters which are, or are not, to be taken into account in assessing a person.” (a) whether a person’s ability to carry out daily living activities is limited by the person’s physical or mental condition; (b) whether a person’s ability to carry out daily living activities is severely limited by the person’s physical or mental condition; (c) whether a person’s ability to carry out mobility activities is limited by the person’s physical or mental condition; (d) whether a person’s ability to carry out mobility activities is severely limited by the person’s physical or mental condition. (a) must provide for the questions mentioned in subsections (1) and (2) to be determined, except in prescribed circumstances, on the basis of an assessment (or repeated assessments) of the person; (b) must provide for the way in which an assessment is to be carried out; (c) may make provision about matters which are, or are not, to be taken into account in assessing a person.”
[6]A person’s needs are the subject of a structured assessment, with a scoring system. Particular activities are identified which form the basis of that assessment. Against each activity there are a number of descriptors, representing the individual’s restrictions or degrees of limitation in carrying out the activity in question. Each descriptor generates a specified number of points: the greater the restriction, the higher the number of points. In respect of daily living activities, a minimum of eight points are needed for any level of PIP.[7]The details of this assessment and scoring system are set out in Part 2 of the Regulations 2013 (“the relevant Regulations”). In the extracts set out below, “C” is the individual being assessed. “Assessment of ability to carry out activities 4.—(1) For the purposes of section 77(2) and section 78 or 79, as the case may be, of the Act, whether C has limited or severely limited ability to carry out daily living or mobility activities, as a result of C’s physical or mental condition, is to be determined on the basis of an assessment. (2) C’s ability to carry out an activity is to be assessed –(a) on the basis of C’s ability whilst wearing or using any aid or appliance which C normally wears or uses; or(b) as if C were wearing or using any aid or appliance which C could reasonably be expected to wear or use. (3) Where C has been assessed as having severely limited ability to carry out activities, C is not to be treated as also having limited ability in relation to the same activities. Scoring for daily living activities 5.—(1) The score C obtains in relation to daily living activities is determined by adding together the number of points (if any) awarded for each activity listed in column 1 of the table in Part 2 of Schedule 1 (“the daily living activities table”). (2) For the purpose of paragraph (1), the number of points awarded to C for each activity listed in column 1 of the daily living activities table is the number shown in column 3 of the table against whichever of the descriptors set out in column 2 of the table for the activity applies to C under regulation 7. (3) Where C has undergone an assessment, C has — (a) limited ability to carry out daily living activities where C obtains a score of at least 8 points in relation to daily living activities; and (b) severely limited ability to carry out daily living activities where C obtains a score of at least 12 points in relation to daily living activities. …” (a) on the basis of C’s ability whilst wearing or using any aid or appliance which C normally wears or uses; or (b) as if C were wearing or using any aid or appliance which C could reasonably be expected to wear or use. Scoring for daily living activities (a) limited ability to carry out daily living activities where C obtains a score of at least 8 points in relation to daily living activities; and (b) severely limited ability to carry out daily living activities where C obtains a score of at least 12 points in relation to daily living activities.

Scoring for daily living activities

[8]Schedule 1 to the Regulations is in two parts: Part 1 is headed ‘Interpretation’; Part 2 addresses the Daily Living Activities themselves.

(b) understand body language; and (c) establish relationships;

[9]I note that ‘Engage Socially’ is not one of the relevant activities. It appears that, at the end of the drafting stage of the Regulations, the title of activity 9 was changed from “Engaging socially” to ‘Engaging with other people face to face’, but no concomitant change was made to the definition section. However, it was common ground that the definition of ‘Engage Socially’ was relevant to the interpretation of activity 9, and that is how the UT has approached this issue: see, for example, AM v SSWP [2015] UKUT 215 (AAC) at paragraph 11, and HJ v SSWP [2016] UKUT 0487 (AAC) at paragraph 16. Given the drafting history of the provision, I agree with that approach.[10]Part 2 of the Schedule is divided into three columns. Column 1 identifies the relevant activity; Column 2 sets out the various descriptors; and Column 3 identifies the points available for each descriptor. Since this case is solely concerned with activity 9 (“Engaging with other people face to face”) it is necessary only to set out that part of Part 2 of the Schedule. Daily Living Activities Column 1 Activity Column 2 Descriptors Column 3 Points 9. Engaging with other people face to facea. Can engage with other people unaided 0b. Needs prompting to be able to engage with other people. 2c. Needs social support to be able to engage with other people 4d. Cannot engage with other people due to such engagement causing either-(i) overwhelming psychological distress to the claimant; or(ii) the claimant to exhibit behaviour which would result in a substantial risk of harm to the claimant or another person. 8[11]Although the evaluation process that I have described may seem formulaic and prescriptive, it is important to bear in mind that the descriptors represent a continuum of need; the differences between one descriptor and the next are matters of fact and degree, to be measured against the individual’s needs. They are not a series of stepped changes. Moreover, the task of the respondent and/or the FTT is to identify which of the four descriptors best correlates with those needs. It is not a rigid box-ticking process, but a quintessentially evaluative exercise.

The Relevant Facts

[12]The appellant’s consultation with the Healthcare Professional (“HP”) took place on 23 June 2014. The history of the appellant’s conditions recorded depression, anxiety, panic attacks, asthma, boils and thyroid problems. The appellant used to be an alcoholic but no longer drank. In the section dealing with the appellant’s functional history, the HP’s report noted what the appellant had said:
“Due to her anxiety she doesn’t go anywhere alone. She only takes the children to school as she has no choice. She doesn’t go out alone. Her friend has to encourage her to go out shopping or for meals. Her friend has to be there with her for reassurance and support… She is able to talk to her neighbours (sic) as she knows her well… She stated she needs encouragement to engage with people and she won’t speak to her children for a few days if she is low in mood.”

She is able to talk to her neighbours (sic) as she knows her well…

[13]The HP report went onto note that the appellant “appeared to engage well during the assessment. However, when the assessor was asking questions the appellant did answer with minimal answers, sometimes her friend had to elaborate on answers about her mood”. In her conclusions, the HP chose the 9(b) descriptor to indicate her opinion that the appellant “needs prompting to be able to engage with other people”.[14]The respondent’s written decision, dated 23 August 2014, awarded the appellant a total of 6 points in respect of daily living activities, 2 less than were required to qualify for the daily living component of a PIP. In respect of activity 9, the respondent said:
“You need to be prompted by another person to engage with other people. This gives you a score of 2.”
The reasons for this conclusion were stated as follows:
“You did display signs of low mood and was [as I see] accompanied to the consultation by a friend and I accept that whilst you are able to engage you require prompting to do so.”
[15]In response to the decision, on 9 September 2014, a Mr Khan (of Leicester City Council’s care management division) wrote on behalf of the appellant to say that, save for three particular scores, she accepted the scores set out in the decision letter. The three challenges related to the scores for i) managing therapy or monitoring her health conditions; ii) reading and understanding signs, symbols and words; and iii) following the route of an unfamiliar journey. On the face of her response, therefore, the appellant accepted the 2 points awarded for activity 9.[16]That acceptance was again confirmed in Mr Khan’s written submissions dated 9 June 2015, provided for the purposes of the FTT appeal.[17]However, at the FTT hearing itself on 21 August 2015, an attempt was made by Mr Khan to increase the score for activity 9 from 2 to 4 points. The basis for this late submission is not easy to discern from the manuscript notes of the hearing. Mr Royston pointed out that, when answering questions, the appellant said that it was her friend who had motivated her to go to exercise classes. She said that she could not go to the keep-fit classes on her own. She did not meet people at the gym: she went there for an hour and then came back home. It appears that at one point Mr Khan said: “prompt needed – but social engagement needed”.[18]The FTT refused the appeal. In paragraph 12 of their statement of reasons, they referred to the counselling which the appellant had had but which ended in November/December 2014. They recorded that the appellant had told them that she did not get on well with the counsellor because she was just given a book to write down what she did and when she was happy or sad. The appellant also said that the counsellor was Polish and she did not understand what she said. This is important because, as noted in Hickinbottom LJ’s judgment, the only ground of appeal to this court for which, prior to the hearing, the appellant had permission was based on an argument that the involvement of the counsellor was not properly taken into account by the FTT.[19]The long paragraph 12 of the FTT’s reasons contains a number of other important findings, including: i) “She (the appellant) also attended a nutritional and weight programme course in Loughborough and after that she attended a one hour keep fit class. Although the keep fit programme has ended she has continued with it by attending on every Monday because she enjoys it and has lost ten pounds and has managed to maintain this.” ii) “Her evidence of having anxiety and panic attacks on a day to day basis lack credibility.” iii) “We also heard that her friend comes every other day and asks her if she has had her medication, eaten anything and also whether her children have eaten and tells her that she has not cleaned the house and suggests that they do it.” iv) “Mr Khan also submitted that she needs a lot of help and encouragement to exercise which she cannot physically do due to her own size… so she needs therapy and encouragement from her friends who provide her this”. v) “The medical member of the tribunal asked Mrs Hickey whether with all these prompts from her friends if she had stopped smoking and to which she responded that she is now using an electric cigarette and smokes 20 cigarettes a day. We find that this is her own choice because even with the prompts from her friends she has not stopped smoking but she now uses an electric cigarette and does not smoke in home. Mrs Hickey also gave evidence that her friend too smokes but because she has started using an electric cigarette, her friend too decided to try it. We find it difficult to reconcile that her friend who is also a smoker is encouraging Mrs Hickey to stop smoking. If anything it was Mrs Hickey who encouraged her friend not to smoke and not the other way round which she accepted. She did not take up her doctor’s advice to stop smoking because she feels too stressed. It is also a known fact that smokers smoke more when stressed. So it really boils down to lifestyle choices.” vi) “We find she has the mental cognition and understanding that it is good for her to lose weight and exercise for which she continues to attend keep fit classes so any encouragement she may be receiving from her friend does not amount…(words missing from decision)” vii) “Her two sons with learning disability were sitting alone in the waiting room and not once did Mrs Hickey wonder how they would be. There was no evidence of any panic or anxiousness that the tribunal witnessed.”[20]At paragraph 14 of their reasons, the FTT accepted and found as factual the HP’s report as to the appellant’s illness and disability.[21]Although the FTT awarded the appellant 7 points in respect of the daily living component (an increase of one point), that was still insufficient to meet the threshold of 8 points for a PIP. In respect of activity 9, they awarded her 2 points. The specific reasons for this were said to be:
“18. Activity 9 - Engaging face to face: The Decision Maker has awarded Mrs Hickey 2 points for activity 9(b). The Tribunal accepts this to be correct. The Representative at the outset of the hearing submitted in respect of activity 9(c) - 4 points. From the evidence we heard we concluded that Mrs Hickey does not shy away from people. Sharron is her friend and she prefers (from our conclusions) her company and this a matter of choice. Mrs Hickey engaged with the HP [healthcare professional], us, her Representative and whoever she needs to. She goes to the nutrition programme; to the gym and she loves it; she attends counselling; weight loss programme; Let’s Talk – Wellbeing; recently went and had her nails done as she is due to go on a holiday on 23.08.15 and is looking forward to going on it with her friend and this would not be uncommon to do. She has driven to Birmingham without her friend, albeit with her two disabled children. Mrs Hickey demonstrated excellent memory and gave us a good recollection of her conditions and history and how she recently bought another car. She cannot only engage with other people with support from someone who is trained or experienced in helping people to engage in social situations and as such does not satisfy the test for activity 9(c).

(b) ”

[22]On 20 May 2016, the UT (UTJ Humphreys) rejected the appellant’s appeal from the FTT’s decision. The judge said that the FTT was not wrong in law. In respect of activity 9, the UTJ said as follows:
“To qualify for 4 points under this descriptor the claimant must need ‘social support’ which is defined for the purposes of the PIP regulations 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 regulations 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 4 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 was must be a qualitative difference between the two descriptors, not simply a difference of provider. It seems 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)…I cannot find any fault with this conclusion.”

The Authorities

[23]As to the differences between descriptors 9(b) and 9(c), the Upper Tribunal has held that ‘social support’ is not necessarily limited to support provided by people with particular training or expertise, or which is provided professionally, but may include support provided by family or friends: see SL v Secretary of State for Work and Pensions [2016] UKUT 0147 (AAC). Because there is a requirement that such a person must be ‘experienced’, evidence about the length of time a friend or family member or other lay person has been providing the support, and the frequency with which it has been provided, will usually be necessary before the decision-maker and FTT: see SL at paragraph 23.[24]‘Prompting’ is widely defined as ‘reminding, encouraging or explaining’. As to the difference between ‘prompting’ on the one hand, and ‘social support’ on the other, there are a number of decisions of the UT which suggest that there must be a qualitative difference between the two, and that ‘social support’ only starts when ‘prompting’ ends. It is unnecessary to set out all those decisions. The approach can be summarised by reference to two in particular: i) In CPIP/1861/2015, UTJ West said:
“23. As to what the difference between ‘prompting’ and ‘social support’ is, I agree with the Secretary of State that one cannot be prescriptive in defining the difference, but a clear example of the latter would be if a person required assistance in the sense of physical intervention by another person in order to engage with others. As long as the help required was something different from, and more than prompting, it could constitute social support and it would be for the Tribunal to determine whether that was the case or not. If, once one had subtracted the‘prompting’ aspect from the support the claimant received (and the other person met the definition of a ‘social supporter’), and there was still a significant level of support being given, then that would qualify as social support. What that distinction may be in any given case is a matter for individual determination depending on the facts of the case and the conclusion drawn from those facts.” ii) In CSPIP/203/2015 and CSPIP/210/2015, UTJ Parker said: “8. I agree therefore with the analysis by the Secretary of State that ‘there should be a definition of ‘social support’ which is qualitatively different from ‘prompting’…as ‘support’, as distinct from ‘social support’, is not defined, it must be given its ordinary and natural meaning, within the context of the other descriptors. In my judgment, what is required is that, on account of a person’s physical or mental condition, she reasonably requires action from a person trained or experienced in assisting people to engage in social situations, in order to engage with other people face to face; ‘support’ is about helping a person who would otherwise be unable to do so, carry out a task. As it has to involve more than ‘reminding, encouraging or explaining’ then it connotes active intervention and not merely reassurance by presence. It must be help, more substantial than prompting, reasonably necessary if the claimant is to participate in society. The help has to be reasonably necessary on account of the claimant’s physical or mental condition, but it is not necessary, that without it, risks arise equivalent to those set out in 9(d), provided there are circumstances which prevent the claimant from engaging with other people, such that it is reasonable to give social support in order to enable such engagement.”
[25]Other cases in which this approach has been adopted by the Upper Tribunal include EG v SSWP [2017] UKUT 101 AAC and JD v SSWP CPIP/184/2016.[26]However, in The Secretary of State for Work and Pensions v MMcK [2017] CSIH 57, a case heard by the Inner House on appeal from the Upper Tribunal, the claimant argued the opposite extreme, namely that descriptor 9(c) was appropriate even where all that was done was ‘prompting’ (namely ‘reminding, encouraging or explaining’), provided only that the person fulfilling that need was a person trained or experienced in assisting people to engage in social situations. The Inner House was therefore asked to decide this question: “Does anything that constitutes prompting also constitute social support, subject only to it being provided by ‘a person trained or experienced in assisting people to engage in social situations’?[27]The court concluded that it was wrong to treat ‘prompting’ and ‘social support’ as mutually exclusive; it was not appropriate to deduct everything that amounted to ‘prompting’ and then look to see what, if anything, was left which, if sufficient in quantity, might amount to ‘social support’.[28]Lord Glennie, delivering the opinion of the court, said:
“[54] This approach fails, in our opinion, to recognise the potential for overlap between the two categories. We have already pointed out that the definition of “prompting” in Part 1 of the Schedule includes “encouragement”, a term sometimes used as a synonym for “support” and commonly included within the ordinary meaning of “support”, save when that word is used in a structural sense. There is nothing in the definitions in the Schedule to suggest that there should not be an element of overlap. Nor does the fact that “social support” attracts 4 points whereas “prompting” attracts only 2 points assist on this point. It may well be that the award of twice the number of points for “social support” reflects the fact that the person being assessed is suffering from a greater disability; but it does not follow from this that it is necessary to treat the two categories as mutually exclusive. [55] In our opinion the critical distinction between “prompting” (as defined in the Schedule) and “social support” is the fact that social support comes from a person trained or experienced in assisting people to engage in social situations. That does not mean, as the argument is somewhat unkindly parodied in some of the cases, that “prompting” qualifies as “social support” merely because the help is in fact given by a person trained or experienced in assisting people so to engage. There has to be some necessity for the help to be given by a person with this training or experience. In many cases it may well be that that is because the help is of some specialist kind which only a person trained in that specialism can deliver. For example, psychological support would normally be given by someone trained in psychology. This would clearly count as “social support”
. But there may be cases where the support is in the nature of encouragement or explanation but, because of the claimant’s mental state, will only be effective if delivered by someone who is trained or experienced in delivering that type of support to that individual. In such a case there will not be a qualitative difference in the help given, but the help can be regarded as “support” because of the necessity for it to be provided by someone trained or experienced in delivering it.”[29]In consequence, the Inner House’s answer to the question was “No, but a thing which constitutes prompting may also constitute social support if, to render it effective or to increase its effectiveness, it requires to be delivered by someone trained or experienced in assisting people to engage in social situations”.[30]The Inner House in MMcK also addressed the question of whether the social support had to be contemporaneous with the face to face engagement being supported. Again, there were a number of UT decisions which suggested that the answer to that question was Yes. In EG v The Secretary of State for Work and Pensions, UTJ Gray said that an approach which took into account help given ‘behind the scenes’ presented real difficulties as to the extent to which historical assistance could be included. She said that the assessment was:
“…a calibration of functional problems at the date of claim with the application of the qualifying period. It is an assessment of actual disability during activity, not of the level of prior involvement required to get the person to the stage where they can engage alone.”
[31]A more nuanced approach was taken by UTJ West in CPIP/1861/2015 in which he found that, as a matter of construction, there was nothing in the descriptor to suggest that the social support had to be provided at the moment when the claimant might be expected to engage face to face with other people or immediately before it. But he went on to say:
“28. There must, however, be a temporal or causal link of some sort between the support received and the carrying out of the activity in order to qualify for the necessary points under the descriptor. That will be a matter of fact in the individual case.”
[32]In MMcK the Court of Session noted UTJ West’s ruling that there might be situations where a qualified person could provide support in anticipation of a claimant meeting people face to face, which support was sufficient to get them through the meeting, without the person providing the help having to be present during the meeting. Lord Glennie said:
“[48] We consider that this is the correct approach to this problem. We note that in the submissions made on behalf of the Secretary of State in the case before Judge West it was accepted by him that whatever was the position in respect of descriptor 9b (prompting) would apply equally in the case of 9c (social support), and vice versa. That must be right. There can be no justification for thinking that prompting could take place before the engagement but that social support would require to be in place while the engagement was going on. The submission that the help had to be contemporaneous with the engagement in respect of which it was required must, therefore, apply equally to prompting and social support. In the course of argument – and this is reflected in the argument presented to Judge West – Mr Komorowski was constrained to recognise that in the appropriate case the social support or prompting might be given immediately before the occasion to which it related. This seems, with respect, obviously right. On a simple level, one can envisage the situation of a helper encouraging an individual to go into a meeting, or into a social function, standing at the door but not going in with him. There is nothing in the Regulations to suggest that this cannot count under either of the relevant descriptors. As we havepointed out under reference to the definition of “supervision”, the draughtsman clearly had in mind some occasions when the help would have to be given by someone who was physically present throughout. In the definition of “supervision” he used the words “continuous presence”
. There is no such wording in the relevant descriptors here. [49] Once one accepts that there is no need for absolute contemporaneity, and that the help may be given immediately before the face to face engagement, then the argument about the difficulty of the judgments which would have to be made loses much of its force. The question becomes one of fact and degree in each case. We accept that descriptor 9b and 9c would not apply to a case where, as a result of a successful psychiatric or psychological intervention in the past, the person being assessed was now able to engage with other people satisfactorily and without further help. He would not be able to say, on the strength of that previous intervention, that he continued to fall within descriptor 9c. That, as Judge West pointed out, is a reductio ad absurdum which does not advance the argument. And it is in any event inapt, because the wording of descriptor 9c is “needs social support”, in the present tense.”[33]Accordingly, the Court of Session answered the question as to contemporaneity in the negative.[34]Because of the different approaches of the UT and the Court of Session on the issues of overlap and contemporaneity, before us Mr Royston, on behalf of the appellant, submitted that this court was bound to follow the decision in MMcK because the Inner House was a court of ‘co-ordinate jurisdiction’: see Young v Bristol Aeroplane Co Ltd [1944] KB 718 (CA) at 729-730. He argued that this was because there is a single FTT and a single UT, each (for the purposes of welfare benefit appeals from the Upper Trubunal) covering the whole of Great Britain, and that an appeal from the UT lay to whichever appeal court “appears to the Upper Tribunal to be the most appropriate”: see section 13(12) of the Tribunals Courts and Enforcement Act 2007. That could be either this court, or the Inner House, each of which has equal jurisdiction over any potential appeal.[35]On that basis he distinguished the decision in Marshalls Clay Products Ltd v Caulfield & Others [2004] EWCA Civ 422 (in which this court strongly disagreed with a decision of the Inner House) on the basis that that was an employment tribunal case, where this court had jurisdiction over the employment tribunal proceedings in England and Wales (but no jurisdiction in Scotland) and the Inner House had jurisdiction over tribunal proceedings in Scotland (but not in England and Wales). Therefore, he said, in that case there was no co-ordinate jurisdiction.[36]In the alternative, Mr Royston argued that, even if there was no co-ordinate jurisdiction, there would need to be compelling reasons before this court departed from a decision of the Inner House: see, by analogy, The Secretary of State for Work and Pensions v Deane [2010] EWCA Civ 699 and Willers v Joyce [2016] UKSC 43.[37]In response, Ms Broadfoot QC argued that Young was dealing with different divisions of the Court of Appeal in the United Kingdom and nothing more, and that Marshalls Clay represented the correct position. She said that the decisions of the Inner House should be accorded proper respect, but that there was no question of their decisions being binding or there needing to be a compelling reason for this court to depart from them.

The Issues on this Appeal

[38]The appellant now takes three points, none of which was the subject of the original grant of permission. Permission was granted for each new ground by this court during the course of the appeal hearing.[39]The appellant’s Ground A (the “qualitative difference” point) was that, in this case, the FTT and the UT wrongly assumed that the things done by a provider of ‘social support’ must be something other than ‘prompting’. Mr Royston said that the principal provider of social support was Sharron, the appellant’s friend, who fell within the relevant definition because she was experienced in the provision of such support. Relying squarely on MMcK, Mr Royston said that, if the only need of a claimant was ‘prompting’, but ‘prompting’ done by someone who fell within the definition of ‘social support’ (because they had the necessary training or experience) then that meant that descriptor 9(c) applied, and not descriptor 9(b).[40]Ms Broadfoot said that conceptually, ‘support’ was different to ‘prompting’ and that, in consequence, ‘prompting’ under 9(b) cannot constitute part of ‘support’ under 9(c). It was a necessary part of that argument that MMcK was wrongly decided, although Ms Broadfoot maintained that, in any event, Ground A failed on the facts.[41]Ground B (the “contemporaneity” point) was the appellant’s contention that the FTT and the UT neglected to consider support “not given at the moment of social engagement”, in particular support given by Sharron at times other than the appellant’s face to face engagements with others. The respondent maintained that the only relevant support was that given during the relevant engagement and that no support prior to any such engagement could be taken into account. Again, therefore, Ms Broadfoot argued that MMcK was wrongly decided although, even if she were wrong about that, she submitted that Ground B would also fail on the facts.[42]The appellant’s Ground C (the “relationships” point) was to the effect that the FTT and the UT erred in law because they neglected to consider whether the appellant was able to establish relationships, which was part of the definition of ‘Engage Socially’. The respondent disputed Ground C on the facts. This was the one part of the appeal which was not affected by the debate about MMcK.[43]Because of the clear conclusions that I have reached on the facts of this case, it is unnecessary for me to express a concluded view on the points of law arising out of the decision of the Inner House in MMcK, or the argument about the potentially binding nature of that decision; and I do not consider that it would be helpful or appropriate for me to do so. For present purposes, I am content to assume that the Inner House accurately set out the law. That approach is also informed by the knowledge that the decision in MMcK is the subject of an application for leave to appeal to the Supreme Court.[44]I would simply say that, leaving the question of authority entirely aside, I see the force in the argument that, because of the width of the statutory definition of ‘prompting’, there may be cases in which there is an overlap between ‘prompting’ under descriptor 9(b) and ‘social support’ under descriptor 9(c) – indeed, there may be overlap in a substantial proportion of cases – although it seems to me that an award of 4 points where the only difference between 9(b) and 9(c) was the experience of the individual ‘reminding, encouraging or explaining’ is unlikely to be common. It is noteworthy that the descriptor in 9(c) is not simply‘prompting by a person trained or experienced in assisting people to engage in social situations’.[45]On the same premise, I also see the force in the submission, accepted by the Inner House in MMcK, that the provision of support might be immediately before the face to face engagement, although again I think that that might be a relatively rare event. Moreover, for that support to be relevant for this purpose, it seems to me that there would need to be a direct causal connection between the support and the engagement: and, on the basis of the submissions that we heard, I am unconvinced that encouragement which merely “increases the effectiveness” of the prompting (as envisaged by the Inner House at paragraph 56 of Lord Glennie’s opinion) would necessarily be sufficient.[46]However, it is unnecessary for me to reach any final conclusion on these issues because, for the reasons set out below, I consider that, even if it is assumed in the appellant’s favour that the contentions of law made in her favour are correct, it avails her nothing. In my view, the appeal on Grounds A and B fails on the facts.[47]Before explaining the reasons for that view in greater detail, it is necessary to highlight the unsatisfactory way in which the appellant’s case has developed over the years. On two occasions prior to the FTT hearing, the appellant indicated that she did not challenge the award of 2 points for activity 9. Thus, none of Grounds A-C can be found in the written submissions provided in advance to the FTT, and it does not appear from the manuscript note of the hearing itself that any of these three points were raised orally. And, although the UT did refer to the qualitative difference point when refusing permission to appeal (because it had been referred to in the submissions), neither Ground B (the contemporaneity point) nor Ground C (the relationship point) arose, so there was no mention of either of them in the decision of UTJ Humphreys.[48]In this way, as so often happens in public law cases, none of the three grounds of appeal now pursued arise directly out of the decision of the FTT, and only one (the qualitative difference point) arises out of the decision of the UT, and even then it is tangential to the UTJ’s decision. This haphazard approach has been compounded by the fact that, prior to the hearing of this appeal, the only ground for which permission was granted to appeal to this court was an argument about the counsellor, which (as explained below) was doomed to fail. Unlike MMcK therefore, this is not a case where the points now argued were taken fair and square by the applicant at the outset of the proceedings. Instead, I consider that the appellant’s case has been continually reshaped over the years, in an attempt to rely on the developments in the authorities referred to above.

Ground A: The ‘Qualitative Difference’ Point

[49]The appellant seeks to argue that, because she received support from her friend Sharron, who was experienced in providing encouragement and other elements of ‘prompting’, she qualified for the descriptor in 9(c). But there is nothing in the findings of fact by the FTT (paragraphs 19-21 above) which suggests that Sharron was involved in all of the appellant’s face to face meetings: indeed, the findings (which repeatedly refer to ‘friends’ in the plural) appear to be to contrary effect.[50]Furthermore, for this argument to work at all, it presupposes that Sharron was within the definition of ‘social support’, as a person ‘experienced in assisting people to engage in social situations’. As noted at paragraph 23 above, for a friend or family member to qualify as a person giving social support within this definition, evidence would be necessary as to that experience: its nature, frequency and effect. That is particularly so where the experience of the individual is the only thing relied on as taking the appropriate descriptor from 9(b) to 9(c). There was no such evidence before the FTT. The absence of such evidence (or any relevant findings) was not a complaint made to the UT. In consequence, I consider that this point is not open to the appellant now.[51]Throughout his submissions, Mr Royston repeatedly suggested that it was for the FTT, adopting an inquisitorial approach, to raise these and other questions and that, if a particular issue was not the subject of evidence, then that was the fault of the FTT, and not in any way the appellant’s responsibility. I profoundly disagree with that submission. Of course, in this sort of case, the FTT is able to adopt an inquisitorial role to establish, through its questions and general approach, the evidence necessary to form a cogent view of the claim. The experience and make-up of the FTTs who deal with these appeals make them uniquely suited to ask the necessary questions and reach the appropriate conclusions. But there are legal limits to the tribunal’s obligation to do this; and practical limits to the scope of their investigation.[52]The FTT does not have an obligation to ask every possible question on every descriptor, regardless of the particular matters put in issue by the claimant (in this case the appellant). The FTT cannot go into every issue and sub-issue, regardless of the points actually raised by the claimant, on the off-chance that they might one day be material. The primary obligation lies upon the claimant to identify which parts of the original decision letter he or she challenges, and why. It is for the claimant to provide the necessary ‘agenda’ for the FTT hearing. It is then for the FTT to adopt an inquisitorial role in respect of the issues raised by the claimant, when it investigates the claimant’s appeal against the respondent’s original decision. Thus, if there are matters on which the appellant has not adduced any evidence, because she did not raise the issue to which that evidence goes at the time of the hearing, then that omission is not the fault of the FTT. It certainly cannot form the basis of an appeal almost three years later.[53]Similarly, Mr Royston’s reliance on other UT cases where UTJs have said that investigations or findings of fact should have been made by the FTT but had not been (like HJ v SSWP and DV v SSWP [2017] UKUT 0244 (AAC) at paragraphs 22-26) are nothing to the point. Each case must turn on its own facts. If a ground of challenge to a decision letter is raised by a claimant on his appeal to the FTT, but it is not dealt with by the FTT at the hearing or in their decision, then that may well establish a good ground of appeal. But that is not this case here.[54]There is a final, broader reason for my view that, on the facts as found by the FTT, this was a 9(b) case. The 9(b) descriptor envisages that the individual’s need is for ‘prompting’ to engage with other people. Everyone who considered her claim (the HP, the respondent, and the FTT) considered that, in the round, this was the descriptor that best described her needs. In contrast, descriptor 9(c) envisages that the individual needs social support across the spectrum, and that at least one way of measuring the degree and nature of that need is that, in order to meet it, someone with the necessary training or experience is required for all face to face engagements. That postulates a degree and nature of need which, on the basis of the HP’s report (paragraphs 12-13 above) and the FTT’s findings of fact (summarised at paragraphs 19-21 above), the appellant does not have. In short, the appellant can “engage well”; from time to time she needs encouragement and reminding by Sharron, but that is, at least in part, her own choice.[55]Accordingly, for these reasons, I do not consider that the qualitative difference argument is relevant to this appeal. The FTT asked themselves the right question. Their answer, by way of their findings on the facts relating to the appellant’s needs, properly gave rise to a 9(b) conclusion.

Ground B: The Contemporaneity Point

[56]Again, I deal with this on the assumption that the Inner House’s approach in MMck is correct, and that ‘social support’ can be given immediately before the engagement rather than during it; again, I conclude that this is of no help to the appellant on the facts of this case.[57]First, there is nothing in the findings of the FTT to suggest that this argument was ever raised before them, and nothing that demonstrated that Sharron’s support was ever given immediately prior to (but not at) the appellant’s face to face engagements. Neither did this argument form part of the decision of the UT. For those reasons alone, I do not consider that it is a point available to the appellant on this appeal.[58]Further, the contemporaneity point depends on Sharron being the individual from whom the pre-activity support would come. For the reasons already noted, there was no evidence that she had the experience that would trigger descriptor 9(c).[59]I should deal briefly with the role of the appellant’s counsellor. At one point it was being argued that, because a counsellor had been involved prior to November/December 2014, their work should have been taken into account when assessing the appellant’s needs in 2015. This may have been intended to go to Ground B. But Mr Royston did not press this argument orally and, in my view, he was right not to do so. On the facts, the FTT found that the counselling was ineffective because the appellant did not like the counsellor and could not understand what she said. It defies common sense now to say that in some way this counselling – entirely unhelpful to the appellant – should be taken into account (whenever it was given) when assessing what the appellant needed in order to engage with others face to face.[60]For these reasons, I reject Ground B of the appeal.

Ground C: The Relationships Point

[61]Pursuant to Ground C of the appeal, the appellant argued that neither the FTT nor the UT analysed or applied the definition of ‘Engage Socially’, and, that had they done so, they might have found that the appellant was not able to establish relationships without social support, and therefore satisfied descriptor 9(c).[62]I reject this ground of appeal. First, it was not a point taken by the appellant before either the FTT or the UT. Mr Royston expressly accepted during the course of argument that the issue of whether the appellant could “establish relationships” was not in issue before the FTT. There was therefore no specific evidence on the point which Mr Royston now seeks to raise with us.[63]Secondly, it is based on the premise that each aspect of the assessment has to be treated separately by the FTT, so that they deal with each limb one by one. That is incorrect: it is open to the FTT to treat all these matters in the round. That is what the FTT did in this case, as set out in their findings summarised at paragraphs 19-21 above.[64]Thirdly, I consider that those findings make it clear beyond doubt that the appellant was able to interact with others and establish relationships. The findings that the appellant “does not shy away from people”, and that she “engaged well” with the HP, the FTT and “whoever she needs to”, are more than sufficient to demonstrate that the appellant had a clear ability to establish relationships.[65]At paragraph 44 of his skeleton, Mr Royston complains that the relationships which are referred to by the First Tier Tribunal were all established before the appellant’s problems began. But there was no evidence of that. It is not open to Mr Royston to endeavour to try and fill the evidential gaps by way of his skeleton argument. Moreover, even on its face, that submission is plainly incorrect: for example, the relationship with the HP obviously came after her problems had begun.[66]This error may have come about because it was inherent in Mr Royston’s submissions that, for this purpose, ‘relationships’ meant only longer-term and regular relationships with others, as opposed to shorter encounters. He said that ‘verbal interactions’ were insufficient. Again, I disagree with that interpretation. That is not what activity 9 is all about. I consider that this activity encompasses all forms of social engagement, whether the ‘relationship’ established lasts ten minutes, ten days or ten years. As Ms Broadfoot put it, it is a low threshold. On the facts of the present case, that is why the FTT’s finding that the appellant “does not shy away from people” is so significant.[67]For these reasons, I reject Ground C of this appeal.

Conclusions

[68]For the reasons set out above, I have concluded that, even assuming that the Court of Session was right in MMcK, on the facts as found by the FTT, this appeal must fail. For completeness, I should add that I agree with what Hickinbottom LJ says below about the need for procedural rigour in appeals of this sort.[69]For the reasons given by my Lord, Coulson LJ, I would dismiss this appeal. I add some observations of my own only because of the unhappy way in which the issues with which he has dealt have come before this court.[70]On 13 June 2016, Upper Tribunal Judge Jacobs granted permission to appeal to this court on one narrow ground, namely that, whilst Judge Humphrey had dealt with the support the appellant received from her friend, Sharron, she had arguably failed to deal with the support she received from her counsellor. That was, as Judge Jacobs understood it, the only ground upon which permission to appeal was sought. It was a discrete and narrow ground.[71]However, when the grounds of appeal were filed with the appellant’s notice on 6 September 2016, the ground for which permission had been given formed just part of one of the three grounds; and the (draft) amended grounds served in December 2016 effectively abandoned the ground for which permission had been granted in favour of the grounds described by Coulson LJ.[72]No formal application to amend the grounds was ever made. This court granted permission to amend during the course of the substantive appeal hearing, because both parties had prepared fully to argue those new grounds; but, as Coulson LJ has described, the result has been that we have considered three points of law which, as hypothetical questions, may be both interesting and potentially challenging, but which do not arise on the facts of the case before us. In my respectful view, it is highly debateable whether permission would have been given for those grounds if, as should have happened, a prompt application to amend had been made and considered in late 2016. This court does not usually grant permission for academic issues which do not arise on the facts of the particular appeal.[73]Whilst it is important that this court – like all other courts – is not a slave to form, the Civil Procedure Rules set out procedural requirements, and not mere aspirations. They do so for good reason. The time of both parties and the court can be wasted if issues are not identified clearly and succinctly in the grounds of appeal, supported by relevant circumstances giving rise to the appeal and the appellant’s arguments or submissions as set out in a skeleton argument. Without such proper focus, it is impossible for appeal courts to deal with their prodigious workloads efficiently and effectively.[74]So far as grounds of appeal are concerned, the requirements of the CPR are clear. i) For an appeal, permission is generally required from either the court which made the decision to be appealed or the appeal court itself (CPR rule 52.3(1), which also sets out various exceptions to the requirement for permission). Permission can be sought from either court (CPR rule 52.3(2)). ii) An appeal is instigated by lodging an appellant’s notice with the appeal court. Where the appellant requires permission in respect of some or all of the grounds upon which he proposes to rely, he must seek permission in the appellant’s notice (CPR rule 52.12(1)). iii) In any event, with the appellant’s notice, an appellant must file:
“grounds of appeal, which must be set out on a separate sheet attached to the appellant’s notice and must set out, in simple language, clearly and concisely, why the order of the lower court was wrong or unjust because of a serious procedural or other irregularity” (CPR PD 52B para 4.2(d)) See also CPR PD 52C para 5(1) to the same effect. (Parties are required to comply with each of the CPR Part 52 practice directions (CPR rule 52.2).) This requirement for particularisation of grounds of appeal reflects the fact that an appeal will be allowed where – and only where – the decision of the lower court was (a) wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings of the lower court (CPR rule 52.21(3)). In practical terms, the obligation is enforced by a requirement that, except for appeals from a small claim or appeals for the Family Division of the High Court, appellant’s notices must be in Form N161, section 6 of which requires grounds of appeal to be filed in accordance with those paragraphs of the practice directions. The grounds of appeal, although required to be on a separate sheet of paper, are therefore an inherent part of the appellant’s notice. iv) Therefore, in respect of each way in which it is said that the decision below is wrong or unjust, the grounds of appeal must address, clearly and concisely, the relevant part of the decision and the way in which it is said to be wrong or unjust. The reasons why it is said the decision is wrong or unjust must not be included in the grounds, and must be confined to the skeleton argument (CPR PD 52C para 5(2)). v) The appeal court’s jurisdiction is constrained by the scope of the grounds of appeal and of the permission that has been granted (Gover v Propertycare Limited [2006] EWCA Civ 286; [2006] ICR 1073). vi) Therefore, where an appellant who has obtained permission to appeal wishes to rely upon a ground of appeal for which he has not previously sought permission to appeal, he must seek permission to amend his grounds of appeal under CPR rule 52.17. vii) So far as appeals to the Court of Appeal (Civil Division) are concerned, that rule is supplemented by paragraph 30 of CPR PD 52C, which provides as follows: “(1) An appeal notice may not be amended without the permission of the court. (2) An application for permission to amend made before permission to appeal has been considered will normally be determined without a hearing. (3) An application for permission to amend (after permission to appeal has been granted) and any submissions in opposition will normally be dealt with at the hearing unless that would cause unnecessary expense or delay, in which case a request should be made for the application to amend to be heard in advance. (4) Legal representatives must— (a) inform the court at the time they make the application if the existing time estimate is affected by the proposed amendment; and (b) attempt to agree any revised time estimate no later than 7 days after service of the application.”
That provision appears to be based on the premise that, once permission has been granted (and any remaining original grounds of appeal rejected), any proposed amendments are likely to be modest and can therefore sensibly be left to the appeal hearing itself. However, that supposition does not detract from the requirement that an appellant who has obtained permission to appeal and wishes to add to or otherwise amend his grounds must make a formal application to do so under CPR rule 52.17, as soon as he reasonably can. Grounds of appeal cannot be covertly amended, for example by including changes to them in the skeleton argument. Such an application – and any response by the respondent – will be considered by a master or a single judge, who will determine whether the application can properly be left to the constitution hearing the appeal or whether it should be dealt with prior to the hearing. If the latter, the application will usually be dealt with on the papers without an oral hearing, unless the judge considers that it cannot be dealt with properly and justly without a hearing.[75]Compliance with the rules will ensure that appeal hearings are properly focused, as they must be. Although of course the merits of an application to amend grounds of appeal will necessarily be fact-specific, where an appellant proposes substantial changes to the grounds of appeal from those upon which he has obtained permission to appeal but has made no application – or no reasonably prompt application – to amend, he should not expect an appeal court to be sympathetic. Appeal courts have a variety of sanctions at their command should a party fail to comply with important mandatory procedural rules that apply to appeals.[76]I agree with both judgments.

Cited in 12 later judgments

and 3 more of the most senior