“19. It follows that the activities and descriptors in Schedule 2 do not exist in some sort of artificial or parallel universe, entirely divorced from the real world of work. They have to be applied on their own terms, but understood against the backdrop of the modern workplace.”
“In relation to activity 13, coping with social engagement due to cognitive impairment or mental disorder, the tribunal had to be satisfied that engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual. Clearly this can not apply. He was able to cope with the HCP, he was able to cope with attending at the hearing before the tribunal which lasted 15 minutes. He is able to attend his GP. It therefore cannot be said that engagement in social contact is always precluded. … The appellant is reclusive as confirmed by his father’s evidence and by the evidence from the GP but he is not that bad that he cannot cope with meeting strangers. He clearly did this at the hearing before the tribunal…”
“15. The representative argues that this concept does not include engaging with people in a formal, professional context, which has an element of compulsion, such as, for example, attending a medical examination, consulting a General Practitioner, attending a tribunal hearing. It is the representative’s submission that descriptor 13: ‘relates to a person’s ability to engage ‘socially’ with people voluntarily in a more informal context, among friends, relatives and strangers, in familiar or unfamiliar places’. 16. The submission on behalf of the Secretary of State disagrees: ‘Whilst contact of the type suggested by the claimant’s representative would fall within the scope of the descriptor it is my submission that contact of the type referred to by the tribunal would not be excluded. The ability to undertake social contact with doctors and lawyers in situations which are acknowledged to have the potential to be stressful is, in my submission properly to be taken into account when judging descriptor 13’. 17. On balance, I prefer the argument made on behalf of the Secretary of State. The representative’s suggested interpretation reads in words which are not included expressly or impliedly in the statutory language. ‘Social’ qualifies ‘engagement’ and ‘contact’; thus in its unadorned use, ‘social’ is a simple reference to relations with other human beings and does not carry any connotations of leisure, pleasure and mutuality. Therefore, the tribunal did not err in relying, as constituting such ‘social engagement’, on the kind of business visits to which it referred in its statement. The representative’s objection that adopting the argument on behalf of the Secretary of State means that, for example, ‘anyone who claims the descriptor and attends the tribunal cannot succeed’, is now undermined by my conclusion that ‘always’ does not mean ‘on every single occasion’; attending a tribunal hearing constitutes ‘social contact’, but if a claimant is otherwise reclusive, he may yet show that he is ‘always precluded’ from ‘engagement in social contact’. This is because ‘always’ does not mean ‘every time’ but only ‘repeatedly’ or ‘often’. 18. What conduct amounts to the necessary ‘contact’ or ‘engagement’ is also a matter of fact and degree, likewise eminently suitable for consideration by a tribunal as a matter of common sense having regard to all the circumstances. At one end of the scale, if a claimant sat silently throughout his tribunal hearing then, outwith exceptional circumstances, a reasonable tribunal could hold that this did not amount to the necessary ‘contact’ or ‘engagement’; similarly, monosyllabic responses in such a context is a borderline scenario. However, where, as here, the claimant communicated with the tribunal on an extensive basis, according to the record, then a conclusion that such did not amount to any ‘social engagement’ or ‘social contact’ would have been irrational. Thus the tribunal did not err in how it understood either ‘social’ or ‘contact’ or ‘engagement’; where it erred was in applying too strict a test in determining whether such was ‘always precluded’.”
“ Activity 16- the tribunal again accepted the appellant’s evidence that he is able to go to the shops alone where he can engage in social contact with people who are unfamiliar.”
“People with an ASD often find social situations very difficult. There are so many social rules that people without an ASD learn instinctively. People with an ASD often have to work at learning these rules. It can often be confusing and cause anxiety as many social rules are unwritten and not spoken about.”
“18. In my view, social contact in this sense is not the same as contact for business or professional purposes. If one goes to a medical examination, or a tribunal hearing, the rules are firmly established by the process and/or the person conducting it, and are typically clearly defined, often in writing. If the person being examined or whose case it is does not respond in a way that a person without disability might, the person conducting it may because of their professional responsibilities be expected within generous limits to accommodate the non-conforming response and certainly not, as it were, to take a poorer view of, or attempt to avoid further contact with, the person because of it. That is precisely what is lacking in the social sphere, where people are free to interact on their own terms and to accept the behaviour of another or to reject it, and largely do so on the basis of the sort of unwritten rules to which the National Autism Society guidance makes reference, an inability to respect which could, in the words of the descriptor, be an indication of ‘difficulty relating to others’.” 20. He then considered the context of the legislation and explained why the difficulties of those with Autistic Spectrum Disorder would have been in the legislator’s mind when the 2011 Regulations were made and said: “ 23. I am not, of course, to be taken as suggesting that because people with ASD were in mind, every problem such a person might face must be taken to score points. Nor am I suggesting that activity 16 applies only to people with that condition, nor that the present claimant’s difficulties are attributable to that condition. The key point is that the difficulties faced by people with ASD serve to illustrate that there is a context in which ‘social’ contact or engagement need not be taken with the broader meaning favoured by Judge Parker of referring to ‘relations with other human beings’. The Work Capability Assessment is concerned with assessing whether a person’s physical or mental condition limits their capability for work, a process which involves grading the severity of the impact of the condition through the award of points. It is entirely in accord with the purpose of the Work Capability Assessment that it should assess difficulties which a significant number of people do, in varying degrees, actually have. 24. It respectfully seems to me that the view in KB of what is ‘social contact’ has the effect of rendering the words virtually otiose. Descriptor 16(a) could simply have said ‘Engagement with others…’ and 16(b) and (c) ‘Engagement with someone unfamiliar to the claimant’. 25. I respectfully disagree with Judge Parker’s view that: ‘“Social” qualifies “engagement” and “contact”; thus in its unadorned use, “social” is a simple reference to relations with other human beings and does not carry any connotations of leisure, pleasure and mutuality. Therefore, the tribunal did not err in relying, as constituting such “social engagement”, on the kind of business visits to which it referred in its statement.’ It does not in my view follow (‘thus’) from the premise that ‘social’ has the meaning described. Nor, I consider, is it necessarily appropriate, without more, to look to the ‘unadorned’ use of the word, when the word has a wide range of meanings and the question is what meaning the word has in the statutory context in which it is used. 26. The claimant’s representative’s original submission drew attention to the range of definitions in the Concise Oxford Dictionary, one of which, on which he sought to rely, was ‘relating to or designed for activities in which people meet each other for pleasure.’ Given the nature of human interaction in the social sphere (when a distinction is drawn between that and the professional or business transaction) and the legislative context of the amendment, that in my view was much nearer the legislator’s intention. With the aid of the full Oxford English Dictionary (online version as at6 September 2013 ) one can get even closer, with its definition of ‘Marked or characterized by friendliness, geniality, or companionship with others; enjoyed, taken, carried out, etc., in the company of others.’ Tellingly for present purposes, where we are concerned with ‘contact’ and ‘engagement’ the list of illustrations of the usage then gives more than a dozen examples of it being used ‘Of communication, interaction, an activity, etc.’ 27. I am conscious of the words of Lord Upjohn in Customs and Excise Commissioners v Top Ten Promotions Ltd[1969] 1 WLR 1163 , at 1171: [cited earlier in this decision] 28. I do not seek to define “social “in activity 16 by reference to the dictionary definition above. But for the reasons in particular in [17]–[22] I consider that the mischief at which the statutory instrument was directed was such that unless there is an element of the social such as is referred to in the definition above or in some way which a tribunal may properly consider to be analogous, a tribunal will be liable to being overturned on further appeal on the basis either that it has not given any effect to the word ‘social’ or that its conclusion cannot be supported. 29. The focus of the legislation is however on the nature of the contact, not the context in which it occurs, albeit it is far more likely that such contact will take place in some contexts than others. The point is well put by the representative in his original submission. ‘That is not to say that [contact with others to conduct a commercial transaction such as buying groceries, buying a bus ticket or a medical consultation] could never involve social contact: a person may have a chat with a shopkeeper during the course of the transaction about the weather, the news or a recent sporting event. In these circumstances the contact would involve an element of social contact and therefore fall within the ambit of activity 16. However where a person simply places his shopping on the counter and hands over the money I submit the contact would not amount to social contact and would not therefore fall within the ambit of activity 16.’ Similarly, if one knows that one’s GP has just got back from holiday one might ask about it and that might constitute social contact, although the time for doing so may prove to be slight compared to the time devoted to the medical reason for the visit. It would follow that, if I had needed to decide the point, I would have concluded that the tribunal failed to find sufficient facts in relation to activity 16.” 21. The decisions in KB and AR focus on the meaning of the words “social contact” in the definition of the descriptors. Correctly, the arguments before us were advanced by reference to all of the statutory language but nonetheless (and understandably) the way in which they were presented reflected the conflict between those two cases. A summary of the rival arguments is that: i) in reliance on Judge Ward’s analysis and reasoning in AR the appellants argued that “social contact” means or requires interaction in, or equivalent to that which takes place in, the social sphere as distinct from a professional or business context and so interaction involving some element of pleasure, friendliness or companionship or something equivalent to it, and thus an element of choice, whereas ii) the Secretary of State argued that Judge Ward’s analysis and conclusion, and thus his expressed disagreement with Judge Parker’s reasoning and conclusion in AB , was wrong and Judge Parker had been right to conclude that “social” is simply a reference to relations with other human beings and does not carry with it any connotation of leisure or pleasure or choice. 22. In our view, when one adds in Judge Parker’s comments at paragraph 18 of her decision that what conduct amounts to the necessary “contact” or “engagement” is a matter of fact and degree that is eminently suitable for consideration by a tribunal having regard to all the circumstances (a) the gap between her approach and that of Judge Ward narrows, and (b) her exclusion of the concept of mutuality from the meaning of “social” has to read with those comments. The gap narrows further when Judge Ward’s comments in paragraph 23 of his decision are taken into account. There he recognises that the work capability assessment is concerned with assessing whether a person’s physical or mental condition limits their capability for work, a process that involves grading the severity of the impact of the condition through the award of points. 23. Nonetheless difficulty has arisen because of Judge Ward’s express disagreement with Judge Parker’s statement that “in its unadorned use, ‘social’ is a simple reference to relations with other human beings and does not carry any connotations of leisure, pleasure and mutuality”
“48. The Appellant claimed difficulties with social situations and his representative had invited the Tribunal to consider this. We understand the argument put forward. Although we heard the Appellant's argument, he nevertheless does meet a number of people, including unfamiliar people. He has some mental health problems but is not receiving significant input regarding this, taking Citalopram and attending counselling. He sees support workers, he goes to MIND, he attends group work. He is able to go out and drive. He will come across other people at appointments and goes to the GP at a surgery where he will meet people who are unfamiliar to himself. He was able to come to the Tribunal to give oral evidence competently. He was able to attend the medical assessment and described the typical day to the unfamiliar HCP. Although we appreciate that he feels that he is unable to make social contact, we do not regard this as a reasonable claim. We consider that he should be able to meet with unfamiliar people. The mental health assessment carried out had revealed no significant problems. It is noted that he had attended appointments where he will see other people. Taking an overall view, although we acknowledge some problems, we do not conclude that these are so significant that coping socially is always precluded or that it is reasonable to conclude that the Appellant's mental health problems are so significant that the Appellant is never able to make contact with unfamiliar people. We concluded that overall, Descriptor 16 (social situations) does not apply to the Appellant. … 51. We were asked to consider paragraph 13 of Schedule 3 and also Regulation 35. The descriptor in Schedule 3 relates to engagement in social contact always being precluded with either people who are familiar or unfamiliar. Clearly, that descriptor does not apply as the Appellant is able to make regular contact with familiar people such as his family, medical people and professional people. He was able to attend the medical assessment and recount a typical day to the HCP. He was able to attend the Tribunal and attends medical appointments and sees his family and visits his family. The Representative had argued that visiting these people does not amount to ‘social contact’. However, given the limited input regarding his mental health, we do not consider that his difficulties are so significant that he could not engage in some social contact with familiar people, even if accompanied and helped in this respect. Although we have sympathy with his difficulties, we do not conclude that they are so great that he should be considered as qualifying for entry to the support group. It is envisaged that entry to the support group is based on the Appellant demonstrating that he has a severe level of functional limitation. Based on the evidence before us, we do not conclude that this is the case and that therefore paragraph 13 of Schedule 3 does not apply.” 41. The claimant now appeals, with permission granted by Upper Tribunal Judge Jacobs, on the ground that the First-tier Tribunal erred in its approach to “social engagement” and so erred in not finding the claimant to satisfy the descriptor for paragraph 13 of Schedule 3 and therefore not finding him to have limited capability for work-related activity. The Secretary of State resists the appeal. 42. The arguments advanced by the parties on the meaning of the Activities and their Descriptors and thus the statutory test or criterion are set out above. It follows from our conclusions on them that the claimant has failed to show that the First-tier Tribunal erred in law by not following the approach to the statutory test he argued for (summarised in paragraph 21(i) above). 43. However, the issue remains whether the First-tier Tribunal has demonstrated that it applied the statutory test or criterion correctly. 44. Its reasons have to be read generously and it needs to be remembered that it did not have the benefit of hearing arguments such as those advanced before us or of considering our analysis of the test to be applied and the approach to be taken. However, and with some sympathy for the First-tier Tribunal, we have concluded that its reasons do not demonstrate with sufficient clarity that it applied the right test or if it did the reasons why it reached the conclusions on it that it did. 45. We acknowledge that the reasoning in paragraph 48 relating to Activity 16 and its Descriptors should be read in the context of descriptor (a), and so also to paragraph 13 of Schedule 3 but we are of the view that the First-tier Tribunal erred in law: i) by not sufficiently addressing the quality of contact in the examples it refers to particularly as their reference in paragraph 51 to them not being satisfied “that he could not engage in some social contact with familiar people, even if accompanied and helped in this respect ” (our emphasis) indicates that it had or my have had some concerns about this, and because ii) that emphasised phrase indicates that it may not have understood or applied the statutory test correctly. As to (ii), we do not consider that a person can be regarded as able to engage in social contact if he or she can do so only if accompanied by someone, at least without some further explanation as how it is envisaged that that might be realistic in the workplace. 46. For these reasons, we set aside the decision of the First-tier Tribunal and refer the case to a differently-constituted panel who must re-decide the case in accordance with the guidance given in this decision. CE/3183/201 47. The claimant in the second case was awarded ESA from11 August 2012 but, following a work capability assessment, the award was superseded because the claimant failed to score any points under Schedule 2 and was not to be regarded as having limited capability for work on any other ground. The claimant appealed. The First-tier Tribunal awarded 9 points under paragraph 17 of Schedule 2 (and so found that he occasionally had uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in the workplace) but that was insufficient and the appeal was dismissed. Insofar as is relevant, its statement of reasons says: “ Going Out. 41. Although the appellant's representative says he has difficulty in this area, the claim pack states that he has no difficulty. 42. He told the FICP that he does not go out alone as he feels scared, especially at night. He says, if he goes to an unfamiliar place, he needs to take his partner. 43. The oral evidence does not support this claim. The appellant gave oral evidence that he can travel to, and around, Leeds, alone, with no difficulty, but thought that, were he to go to Manchester he could get lost. He had, the day before the hearing, at a time when he described his condition as worse, caught the bus to Dewsbury. He confirmed that he will go to unfamiliar places and that he sometimes gets lost. He is reluctant to ask for directions as he feels people may laugh at him or involve the police. This does not preclude him from going to unfamiliar places, and doing so, using public transport, without being accompanied by another person. 44. The Tribunal finds that the appellant is going out alone. He was able to travel to Manchester, Dewsbury, Rushton alone. He was able to communicate with the people he had to deal with in order to achieve the objective of the various journeys. 45. The Tribunal finds that he was, and is, able to get to a specified place with which he is familiar or unfamiliar, without being accompanied by another person. Coping With Social Situations. 46. The appellant says, in his claim pack, that his ability to meet with people he knows, and does not know, varies. 47. The appellant gave oral evidence that he does not socialise because of his bad temper. He says he doesn't want to talk to people. When this was explored further with him he stated that he was in a lot of debt and had lost his friends because they were tired of him asking for favours. Thus, the Tribunal finds that the reason he is not socialising is not because of difficulty relating to others or significant distress, but is attributable to other factors. 48. He confirmed that he has friends who will come to clean his house for him, to see him for a visit or the collect him in their car and take him to their houses or to the shops. They will also take him to a restaurant he likes, or to a café. He confirmed that the people in the restaurant or café are not always known to him but that he is able to go in to eat, just the same as other people do. 49. The Tribunal finds that he interacts with those he comes across at the shops, on public transport, at cafes and restaurants, his representative and the members of the Tribunal. Such interaction is not precluded for the majority of the time, or at all, due to difficulty relating to others or significant distress. 50. The Tribunal finds that engagement in social contact with someone unfamiliar is not precluded for the majority of the time, due to difficulty relating to others or significant distress experienced by the appellant. Inappropriate behaviour. 51. In his claim pack the appellant says he often behaves in a way which upsets people. He says he gets frustrated very easily. He says his GP notes record anger management issues. He was referred to an anger management course, which he attended on one occasion but was unwilling to continue as he was required to pay for the sessions. 52. His GP records do make reference to anger and loss of temper. There was an incident involving the police around 24.03.11 and an incident in prison around 08.07.11. 53. He has had a psychiatrist in the past but does not currently have one. 54. The appellant confirmed that there had been a couple of incidents involving his doctor and counsellor. He described his reactions as quick. but confirmed that there had been no physical aggression ‘since ages’. 55. The appellant gave oral evidence that the last time he was in any trouble was in 2011. He is now keen to stay out of trouble and would rather walk away. 56. His representative drew to the Tribunal's attention an incident at the CAB in September or October 12 when he had lost his temper. He again confirmed that he did not want trouble or police involvement and tries to avoid such situations. 57. He describes verbal aggression but no physical aggression towards people. His representative asks the Tribunal to consider descriptors (b) or (c). The Tribunal awarded descriptor (c). 58. The Tribunal finds that the appellant is aware of his temper issues. He is clearly at pains to avoid confrontation as he does not want any more police involvement. He takes care to avoid situations or to walk away from them. However, it was apparent at the Tribunal that this is a struggle for him. His representative drew the Tribunal's attention to a more recent incident at the CAB. The Tribunal finds that the incidents happen rarely now (there has been one incident in the last 2 years) but finds that, when they do occur they would be unacceptable in a workplace. 59. The Tribunal found that he has occasional episodes of disinhibited behaviour which would be unreasonable in a workplace and warded him 9 points under descriptor 17(c). Regulation 29 60. The Tribunal also considered Regulation 29 of theEmployment and Support Allowance Regulations 2008 . The Tribunal finds that the appellant does not suffer from a specific bodily or mental disablement by reason of which there would be a substantial risk to his mental or physical health if he were not found to have limited capability for work. 61. The Tribunal has considered the case of Charlton v Secretary of State for Work and Pensions[2009] EWCA Civ 42 . It has made the decision that the appellant suffers from a mental condition which does not, of itself, cause such functional limitation as to justify a total score warranting a finding of limited capability for work. It has further decided that because of the disablement there would not be a substantial risk to the mental or physical health of any person if the appellant were found capable of work having regard to the nature of the relevant work and workplace for the appellant. 62. The appellant states that he would like to go to college and improve his life. The appellant confirmed his desire to get a job and felt it was his left hand which impeded him. He did recently get a job, about 10 or 11 months ago. He worked in customer services. He had not revealed the problem with his left hand. He confirmed that, had the duties been different, for example, had he been on a till, he would have been able to do it. He maintained a positive and admirable attitude to returning to work, but felt limited by his poor English and his lack of qualifications. 63. The Tribunal finds that there is a variety of jobs which he could undertake with minimal training. It finds that there is no substantial risk caused as a result of its decision.” 48. The claimant now appeals, with permission given by Upper Tribunal Judge Wikeley, on the ground that the First-tier Tribunal erred in its approach to Activities 4, 15 and 16 of Schedule 2 and to regulation 29. 49. In relation to Activity 4 (Picking up and moving or transferring by the use of the upper body and arms), the only descriptor in issue was 4(c) and therefore whether the claimant “Cannot transfer a light but bulky object such as an empty cardboard box”