Secretary of State for Work & Pensions v MM
| Jurisdiction | England & Wales |
| Judge | Lady Black,Lady Hale,Lord Kerr,Lord Hodge,Lord Sales |
| Judgment Date | 18 July 2019 |
| Neutral Citation | [2019] UKSC 34 |
| Court | Supreme Court |
| Date | 18 July 2019 |
| Docket Number | No 3 |
[2019] UKSC 34
Lady Hale, President
Lord Kerr
Lord Hodge
Lady Black
Lord Sales
Appellant
Samantha Broadfoot QC
Julius Komorowski
Leon Glenister
(Instructed by Office of the Advocate General for Scotland)
Respondent
Janys Scott QC
Joseph Bryce
(Instructed by Drummond Miller LLP)
Intervener (Mind)
Richard Drabble QC
Tom Royston
(Instructed by Mind Legal Unit)
Heard on 9 April 2019
( with whom Lady Hale, Lord Kerr, Lord Hodge and Lord Sales agree)
This appeal relates to personal independence payment, which is a non-means tested allowance paid to certain people with long term health problems or disability. The appeal's focus is upon one of the markers used to determine whether a claimant's ability to live his or her daily life is limited, by his or her physical or mental condition, to such an extent as to generate an entitlement to personal independence payment (“PIP”). Various “daily living activities” are examined as markers, and the one in question here is “engaging with other people face to face”.
PIP is dealt with in Part 4 of the Welfare Reform Act 2012 (“the Act”). Section 77 introduces the allowance and establishes that a person may be entitled to one or both of its two components, namely “the daily living component” and “the mobility component”. This case is concerned with the daily living component. Entitlement is dealt with in section 78, which also points the way to other relevant provisions contained in Part 4 and in the regulations made under it. The component can be paid at either the “standard rate” (which is what is in question here) or, for those whose ability is more limited, the higher “enhanced rate”.
By section 78(1), there are two requirements which the claimant must satisfy in order to be entitled to the daily living component at the standard rate, namely the requirement in section 78(1)(a) (which I will refer to as “the limited ability requirement”), and “the required period condition” in section 78(1)(b). So far as is material, the section reads:
“78. 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) [entitlement to enhanced rate]
(3) [meaning of standard and enhanced rate]
(4) In this Part ‘daily living activities’ means 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.
(6) This section is subject to the provisions of this Part, or regulations under it, relating to entitlement to the daily living component …”
Section 80 provides that the question “whether a person's ability to carry out daily living activities is limited by the person's physical or mental condition” (the limited ability requirement in section 78(1)(a)) is to be determined in accordance with regulations, and that the regulations must provide for that question to be determined, except in prescribed circumstances, on the basis of an assessment (or repeated assessments) of the person. The question of whether the person meets the required period condition for the purposes of section 78(1)(b) is similarly to be determined in accordance with regulations.
The Social Security (Personal Independence Payment) Regulations 2013 (“the Regulations”) prescribe the activities which are “daily living activities” for section 78 as those set out in column 1 of the table in Part 2 of Schedule 1 to the Regulations. The table lists ten activities. Column 2 focuses in some detail on the ability of the claimant (referred to throughout the Regulations as “C”) to carry out each activity, on a scale ranging from being able to carry out the activity unaided to being unable to do it. For example, activity 1 in the list is “Preparing food”, and there are six levels of ability in column 2 ranging from “a. Can prepare and cook a simple meal unaided” to “f. Cannot prepare and cook food”. Each sub-paragraph in column 2 is called a “descriptor”.
In column 3, points are attributed, according to the level of ability measured by the descriptors; the greater the difficulty experienced by the claimant, the greater the number of points awarded. So, a claimant who can prepare and cook a simple meal unaided has no points attributed, whereas, at the other end of the scale, eight points are attributed where the claimant cannot prepare and cook food. There are gradations between the two; for example, a claimant who needs prompting to be able to prepare or cook a simple meal has two points attributed, as does a claimant who needs to use an aid or appliance to do so. The same ascending scale of difficulty, reflected in increasing numbers of points, can be seen in relation to each of the activities in the table.
Regulation 5 provides that the points attributed for each activity in the table are added together and, if the total is at least eight but less than 12, the claimant has “limited ability to carry out daily living activities”, and is entitled to PIP at the standard rate, whereas if the total is 12 points or more, the claimant will be classed as having “severely limited ability” and is entitled to the enhanced rate.
Regulation 4(2A) provides some more detail as to how the assessment of ability is approached, providing that:
“C is to be assessed as satisfying a descriptor only if C can do so —
(a) safely;
(b) to an acceptable standard;
(c) repeatedly; and
(d) within a reasonable time period.”
Regulation 4(4) defines these concepts as follows:
“(a) ‘safely’ means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity;
(b) ‘repeatedly’ means as often as the activity being assessed is reasonably required to be completed; and
(c) ‘reasonable time period’ means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person's ability to carry out the activity in question would normally take to complete that activity.”
The assessment of the claimant is more than just a snapshot of ability, given that the required period condition has to be satisfied, see section 78(1)(b). Section 81 dictates the shape of the regulations about this condition, providing (so far as material) that they:
“must provide for the question of whether a person meets ‘the required period condition’ … to be determined by reference to —
(a) whether, as respects every time in the previous three months, it is likely that if the relevant ability had been assessed at that time that ability would have been determined to be limited … by the person's physical or mental condition; and
(b) whether, as respects every time in the next nine months, it is likely that if the relevant ability were to be assessed at that time that ability would be determined to be limited … by the person's physical or mental condition.”
For present purposes, the “relevant ability” is, of course, the ability to carry out daily living activities (section 81(2)). Section 81(3) deals with the reckoning of the periods of three and nine months, providing that “the previous three months” means the three months ending with “the prescribed date” and “the next nine months” means the nine months beginning with the day after that date. The Regulations make provision as required by section 81, including establishing what the “prescribed date” is, and also dealing with further issues to do with the “required period”. The detail does not matter for the issue presently under consideration. What is important is to recognise that it is not just the claimant's situation on one day of assessment that is under consideration, but his or her situation over a period of 12 months. Furthermore, it is clear from the Regulations that some degree of fluctuation in the claimant's presentation is anticipated. Regulation 7, which is entitled “Scoring: further provision”, sets out how to choose which descriptor applies to a claimant in relation to each activity in the table. It involves looking to see which descriptors are “satisfied on over 50% of the days of the required period”, and from that information, working out which descriptor is to be applied. Regulation 7(1)(a) (which deals with the most straightforward situation) will serve as an example; it provides that “where one descriptor is satisfied on over 50% of the days of the required period” that descriptor applies to the claimant.
It is Activity 9 in the table in Part 2 of Schedule 1 to the Regulations which gives rise to the issues in this appeal. In relation to this activity, the table provides:
| Column 1 Activity | Column 2 Descriptors | Column 3 Points |
| 9. Engaging with other people face to face. | a. Can engage with other people unaided. | 0 |
| b. Needs prompting to be able to engage with other people. | 2 | |
| c. Needs social support to be able to engage with other people. | 4 | |
| d.... |
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