PIP MR request - Activity 9 - Clarification over case law

Alice_Holt

I'd definitely cite that PIP judgement.

This might well apply to you - "TR-vSSWP (PIP) [2015] UKUT 0626 (AAC) is likely to be pertinent. It is in this context that I reiterate his point in CE, set out above. TR establishes that if a claimant is unable to perform an activity for part of a day that day counts towards that period provided that the inability to perform it affects them on that day to more than a trivial extent: in particular see [32-34]...."

I have just skimmed through the judgement, but it seems very relevant to you. Well found!

Demerara

Ah yes, silly of me, true that whilst I can't refer to the original ruling, I can refer to the PIP judgment that refers to it!!!

Thank so much Alice Holt, I think i can see light at the end of the tunnel!!

Alice_Holt

Also:
Para 11
"her appearing to engage satisfactorily with health professionals and with the tribunal, that she would be able to engage with others “whenever reasonably necessary". That is the wrong test."
Could be helpful if that was included in the DM's reasoning for your decision.

And this may be worth quoting - "The purpose of PIP, like DLA before it, is to assist those with disabilities to live, as far as possible, the life that they would wish to live, and any mitigating behaviour adopted because of that disability must be disregarded."
(Disregarded because "being compared with the baseline criteria of a person without a relevant disability who, using activity 7 descriptor a as an example, “can express and understand verbal information unaided”).
Para 20.

Because this judgement refers back to a DLA judgement concerning the definition of "reasonably required", which also has relevance in PIP particularly re "The purpose of PIP" - It is a good spot.

Edit: Had a longer look through the judgement, now.

Demerara

I am getting excited now lol. Need to get enough head space to write my statement - not easy but at least throwing in case law can potentially support the tribunal to understand my point!

Demerara

Would it be cheeky to add this?

SF v The Secretary of State [2016] UKUT 0543 (AAC)
Assessments of a claimant’s ability to engage with other people may be nuanced and finely balanced, and I cannot exclude the possibility that the tribunal would have assessed the claimant’s ability to engage with other people differently if they had found that he did not in fact take part in any form of work-related activity.

Alice_Holt

Demerara wrote: »

Would it be cheeky to add this?

SF v The Secretary of State [2016] UKUT 0543 (AAC)
Assessments of a claimant’s ability to engage with other people may be nuanced and finely balanced, and I cannot exclude the possibility that the tribunal would have assessed the claimant’s ability to engage with other people differently if they had found that he did not in fact take part in any form of work-related activity.

I'm not sure.

This judgement would seem to hinge on whether the FTT made an error in law in not carrying out a proper investigation of the claimant’s ability to interact with other people in social situations, They justified their decision not to award points due in part to their acceptance that the claimant socially engaged "at ‘a government group for those out of work’ (the evidence of the nurse assessor). However, the claimant being in the Support Group of ESA did not attend such meetings, and raised this in his statement. The UT have set the decision aside because "The tribunal did not resolve that conflict,"

At least, that's my reading of the judgement.

However, this general point at para 6 may be relevant "It would follow that in all cases in which Activity 9 is in issue decision makers should apply the definition of ‘engage socially’ in Schedule 1 and should consider a claimant’s ability to interact with others in a contextually and socially appropriate manner, the claimant’s ability to understand body language, and the claimant’s ability to establish relationships in a social context."

The underlined phrase might be worth putting in your statement if it applies in your case, but as general PIP point of law, rather than part of a more specific case law point.

Demerara

Hmm I get your point.

I take it as implying that when assessing needs at any stage of the PIP process, they should not make assumptions based on activities that the claimant is doing and in effect, not looking at the difficulties the claimant may be experience but completing the activity nonetheless?

Alice_Holt

Demerara wrote: »

I take it as implying that when assessing needs at any stage of the PIP process, they should not make assumptions based on activities that the claimant is doing and in effect, not looking at the difficulties the claimant may be experience but completing the activity nonetheless?

Would agree with this.

[I think] if completing the activity nonetheless involves the use of mitigating behaviours (per the earlier judgement), and:
also if social engagement at work is limited by your disability in a manner that other employees are not (as I think you stated earlier in the thread); and
the effort of social engagement at work means that you are exhausted after work and can't engage ( again the bit about "unable to perform an activity for part of a day that day counts towards that period provided that the inability to perform it affects them on that day to more than a trivial extent" in that judgement) - which I also think you stated.

Then - that all builds to the case that you can't do the activity reliably in order that "Social life... can be part of normal life".

Demerara

Ah, excellent, i am so lost with all these different rulings, thanks for putting it together for me!

Alice_Holt

Plus I think you mentioned earlier in the thread that you had workplace adaptions. Explain these in your statement as this would be part of the "mitigating behaviours".

A letter from your work colleague might illustrate that your social engagement at work is limited by your disability in a manner that other employees aren't (again I recall this was mentioned in the thread?).

That way, you can build an argument backed up by evidence.

I would tend to place the emphasis on your personal situation and how you manage (or not) the descriptor reliably, in an acceptable manner, and at all times when required. I.e so that "Social life... can be part of normal life". (or not).