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Schedule 3 Descriptor 13
My client’s appeal for ESA support group was disallowed. The appeal was directed at paragraph 13 of schedule 3 “Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual”. It failed and in the Statement of Reasons the FTT judge said, “Clearly this cannot be apply. He was able to cope with the HCP, he was able to cope with attending the hearing before this 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”.
Application for leave to appeal was refused. Before I apply directly to the UT I was wondering if anyone had a view or angle on this decision. My initial comments on the leave to appeal were that the FTT reasons are flawed because by such reasoning every such appeal must fail merely by the appellant arriving at the hearing and getting through it. Also their implied argument is that to satisfy this descriptor a person would fail to attend the WCA and thus incur the wrath of the DWP. Finally his GP would never see him!!
Maybe I’m misunderstanding this descriptor.
I think the tribunal has missed regulation 34(2)
“A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor”
Aha! Thank you. I’ll try that tack in the leave to appeal and appeal to the UT.
It has always worried me that these things are seen as social contact. The best I’ve ever seen was a reference to being able to get on a bus meant there was social contact with the driver.
I’ve got very clear views on what I consider to be social contact and it usually isn’t anything that the DWP submit it to be. It seems however that I’m wrong and that every word you say is social contact….
In my opinion, it is going to be very difficult to qualify for the support group via this descriptor. “Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual”
I agree that if a claimant is able to talk to anyone else, they do not meet the criteria. There are a small minority of people who are not able to attend medicals or tribunals. The wording is ALWAYS, presumably this takes precedence over the usual rule about the claimant meeting the criteria for the majority of the time.
In my opinion, it is going to be very difficult to qualify for the support group via this descriptor. “Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual”
I agree that if a claimant is able to talk to anyone else, they do not meet the criteria. There are a small minority of people who are not able to attend medicals or tribunals. The wording is ALWAYS, presumably this takes precedence over the usual rule about the claimant meeting the criteria for the majority of the time.
I disagree. The wording is ‘always precluded’. A client can ‘always’ be ‘precluded’ from engaging in social contact due to overwhelming anxiety for instance but may still engage in some (limited) social contact, eg: with substantial prompting and encouragement from a family member.
Furthermore I do not consider that attendance at WCA, Tribunal, Dr etc should be considered to be social contact. When arguing this descriptor I have drawn the Tribunal’s attention to the circumstances that have allowed the client to attend (Prompting, encouragement, accompaniment, prearranged date/time, threats of loss of benefit from both JCP and myself). I have also ensured to get a statement from a CPN to confirm that they ‘avoid all social contact’ etc. The clients who this descriptor apply to, by their very nature, will struggle to cope at Tribunal and I have found that a Tribunal confronted with all of the above have found in my clients’ favour.
In my opinion, it is going to be very difficult to qualify for the support group via this descriptor. “Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual”
I agree that if a claimant is able to talk to anyone else, they do not meet the criteria. There are a small minority of people who are not able to attend medicals or tribunals. The wording is ALWAYS, presumably this takes precedence over the usual rule about the claimant meeting the criteria for the majority of the time.
I disagree. The wording is ‘always precluded’. A client can ‘always’ be ‘precluded’ from engaging in social contact due to overwhelming anxiety for instance but may still engage in some (limited) social contact, eg: with substantial prompting and encouragement from a family member.
Furthermore I do not consider that attendance at WCA, Tribunal, Dr etc should be considered to be social contact. When arguing this descriptor I have drawn the Tribunal’s attention to the circumstances that have allowed the client to attend (Prompting, encouragement, accompaniment, prearranged date/time, threats of loss of benefit from both JCP and myself). I have also ensured to get a statement from a CPN to confirm that they ‘avoid all social contact’ etc. The clients who this descriptor apply to, by their very nature, will struggle to cope at Tribunal and I have found that a Tribunal confronted with all of the above have found in my clients’ favour.
So you have won an support group appeal based on this descriptor?
I think we’ve all pondered on this one. I think the issue is not one of how we define “always” as against the wording of reg 34(2) but how we define “social”. Courts down the years have cautioned against rushing to the dictionary to define words. Rather we should look at how the word is used in its ordinary, everyday context. Dictionaries distinguish between “social”, meaning societal, being part of a community, contact with others etc, and “sociable” which connotes contact with others outside of formal or necessary situations (appointments, shopping etc) and which would relate mainly to leisure, free time, etc.
I think that most people would lean toward the latter when asked what was meant by social contact but, in my view, it is probably going to need some case law to sort the matter out.
I managed to get a friend of mine from the WRAG into the Support group in January on this descriptor. It didnt go to tribunal, i asked JC+ to reconsider and revise (which they eventually did)
She has another medical last month and put back into WRAG. Appealing again!
In my opinion, it is going to be very difficult to qualify for the support group via this descriptor. “Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual”
I agree that if a claimant is able to talk to anyone else, they do not meet the criteria. There are a small minority of people who are not able to attend medicals or tribunals. The wording is ALWAYS, presumably this takes precedence over the usual rule about the claimant meeting the criteria for the majority of the time.
I have to disagree - regulation 34(2) clearly applies to all descriptors in Schedule 3, however phrased. Even within the wording of a descriptor itself, some element of “de minimis” must apply - the WCA handbook refers to “almost total social isolation”. I would certainly argue reg 34(2) and pursue it if the tribunal took the view that it could not apply because of the wording of that particular descriptor.
Just badly thought out drafting, on the face of it
I have a case where I have applied for leave to appeal to the UT arguing, amongst other things, that commercial contact eg buying a newspaper is not the same as social contact, quoting the dictionary definition of social. I’ll let you know how I get on. Even if this is wrong I think Brian is right that minimal contact needn’t mean it doesn’t apply on the basis of the deminimis principle.
I’ve used it and been successful in getting people into the support group. People who suffers from conditions such as asperger syndrome, paranoia etc. often get distressed before (and after social contact), and it isn’t always apparent at the time of contact either. The fact that someone can appear to engage in WCA or tribunal is such a naive view of the significant difficulties and restrictions these people face on a day to day basis. Yes, gearing up for a tribunal as a one off event with the threat of having no money to live on can be endured with support, because it has to be endured. What about the day to day contact without support in the community? How are people coping and engaging with that independently? How restricted or socially isolated are their lives because of this limitation? What are the risks associated with unplanned and planned social contact? Increase in anxiety, psychosis, self-harm, depression? It really isn’t as simple as being able to sit through a WCA or tribunal without jumping out of a window.
It also has to be remembered that the descriptor refers to engagement in social contact so even if the person has a lot of social contact he still has to engage in a meaningful sense. A series of monosyllabic responses or grunts (or even two or three word phrases) is hardly engagement.
I’ve a similar case and discussed it with the “Social” Workers in the office. They were all quite convinced that “social” contact isn’t going to the doctor; it’s broader than that. Sadly we couldn’t come up with any academia to support that stance despite throwing the net quite wide.
Some googling described “social” as a “fuzzy term” and eventually I came up with this by way of an appeal letter…
‘As regards activity 12; social activity; the ESA85 would appear to found advice that this descriptor is not satisfied on contact with a friend, her mother, husband and professionals; I would suggest that to take such a draconian view of the operation of this test would be to give a perverse result; only where a person can tolerate contact with nobody might this descriptor be satisfied; a person who has locked themselves away completely is unlikely to have managed to make, or sustain a claim for benefit; the test looks at contact, might that include contact over the telephone?
We submit that, taking into account a real, functional life that contact with medical professionals, family, or a longstanding friend may, for the sakes of this argument fall into “functional” rather than “social” contact and “social” contact is more wide ranging than contact with a person’s family, a neighbour or a pre planned visit to the doctor’
I’ll be very interested in how your UT case goes…
I think it is also important to consider “difficulty relating to others” separately from “significant distress”. From this you can argue against mere attendance at appointments, tribunals and try and look a bit deeper into how effective that person’s ‘engagement’ is. So somebody may be able to attend the tribunal (or their GP etc) perfectly happily but then fail to properly comprehend the questions and/or give coherent answers. In a workplace context the person may be able to attend work without distress but not be able to carry out their job due to not being able to properly relate to co-workers/customers.
Thanks to everyone for the help with this case.
The appeal to the UT was successful, in that it has been referred back for rehearing by he FTT.
Judge Parker commented in CSE/22/2013 that…
‘therefore in order to make use of reg 34(2) but mindful of the distinction in activity 16 of schedule 2 between “always” and “for the majority of time”, I conclude that “always precluded” as used in activity 13 of schedule 3, and likewise as used in activity 16 of schedule 2, is not an all or nothing test; rather it means “repeatedly” or “persistent” or “often”. A “majority” may be consituted by events which happen only on 50.1% of possible occasions, but a greater frequency is required by the use of the word “always”. It is a question of degree, but a fact finding tribunal is eminently suited to applying these subtle nuances of difference in a common sense way. It suffices to say in the present case, that because a claimant attends one tribunal hearing, and his GP accepts that he comes to the surgery very occasionally, does not necessarily entail the conclusion, as the tribunal clearly considered that it did, that it “cannot be said that engagement in social contact is always precluded”.’