CPIP/3707/2016 Ability to understand body language
Ability to understand body language and visual cues is relevant when assessing whether a claimant with severe visual impairment can engage with others
The claimant had severe visual impairment and scored insufficient points for an award of the daily living component of personal independence payment on a claim and subsequent appeal to the First-tier Tribunal. The claimant’s appeal to the Upper Tribunal focused on two of the activity 9 descriptors set out in part 2 of schedule 1 of the Social Security (Personal Independence Payment) Regulations 2013 - namely 9(b) (prompting) and 9(c) (social support) when engaging with other people face to face. The claimant contended that he satisfied one or both of the descriptors due to a need for help to cope with his inability to see who other people were or who he was speaking to, his inability to see body language which presented an effective barrier when engaging with others, and the resulting difficulties in establishing relationships.
What is the nature of fact finding required when assessing barriers to effective face to face engagement with others experienced by someone with a severe visual impairment.
Judge Sutherland Williams allows the appeal and refers the case to a new tribunal to be reheard.
Judge Sutherland Williams finds no reason why key principles established in case law concerning activity 9 and claimants with other physical and mental conditions should not apply equally to people with severe visual impairment. In summary, Judge Sutherland Williams’ analysis of relevant case law and the principles at play includes that -
◾ the limitation of a person’s ability to engage with other people face to face can be caused by either mental health or physical health issues or both (referring to  UKUT 160 (AAC)), so that the effects of severe visual impairment as a physical and sensory condition may require activity 9 to be considered;
◾ engaging face to face means engaging on a one-to-one basis or within a small group ( UKUT 7 (AAC)) and while engaging face to face can occur without seeing the person being spoken to, difficulties may arise in understanding non-verbal communication or social cues;
◾ the ability to ‘engage socially’ is relevant to activity 9 ( UKUT 215 (AAC)) and for claimant’s who are visually impaired a tribunal will need to consider whether a claimant can detect body language, at a close distance, on a one-to-one basis or in a small group; or whether prompting will be required most of the time;
◾ support required in social situations should be considered: ( UKUT 543 (AAC)) having regard to the severity of visual impairment and what other health factors exist that may impact on the ability to engage; and
◾ the test involves assessing engagement with people generally, not just people a claimant knows well or in specific situations ( UKUT 154 (AAC)).
Applying those principles in the context of severe visual impairment, Judge Sutherland Williams highlights that difficulties identifying facial expressions, more generally the reading of body language, identifying whether someone is talking to a claimant, or offering a handshake, may lead to a need to consider activity 9. Judge Sutherland Williams then sets out guidance on how to consider such barriers to social engagement for the claimant -
‘… the tribunal should make clear findings of fact in terms of the extent of the claimant’s visual impairment to ascertain whether he is able to engage with others to an acceptable standard. This would include addressing the difficulties that the claimant may have with problems of social context, functioning in a social environment, and understanding social cues.
One of the central aspects of the claimant’s grounds of appeal is whether or not he is able to read body language due to visual impairment or whether he would need prompting from another person to be able to engage with other people face-to-face as a result of his impairment. The tribunal should consider this aspect as one of the ingredients it has to consider when assessing activity 9. It must, as a whole, take into account the full range of barriers that the claimant may face, including any support he may require from another person.’ (paragraph 28 to 29)
Concluding that the tribunal had not made adequate findings of fact in relation to how the claimant interacted with others, or his ability to understand body language and establish relationships, Judge Sutherland Williams allows the appeal and directs the tribunal that rehears the case to make appropriate findings of fact about the nature and quality of interaction with other people, and what level of prompting or support may be required.
Courtesy of Gary Vaux
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