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New PIP decision - ‘communication support’ and hearing impairments
In [2016] UKUT 0550 (AAC) Judge Rowley finds ‘communication support’ in activity 7 is not limited to help with sign language and could include a speech to text reporter, lip speaker or other methods -
‘… communication support can be provided in a number of different ways, and is not limited to a sign language interpreter. In restricting its considerations to the claimant’s limited ability to sign, and in failing to explore whether other means of communication support may have helped, the tribunal erred in law.’ (paragraph 19)
Judge Rowley also finds the tribunal in this case was wrong to exclude informal help with communication received from family and friends -
‘A similar argument was considered and, in my judgment, rightly rejected by Upper Tribunal Judge Hemingway in SL v SSWP (PIP) [2016] UKUT 0147 (AAC) in the context of “social support.” In the light of my decision that “communication support” can be provided by family and friends who are directly experienced in communicating with a claimant alone, in finding as it did the tribunal erred in law.’ (paragraph 20)
Pleased with this. A common sense decision around sensory impairment. Moves things forward nicely.
The PIP Regs say “communication support means support from a person trained or experienced in communicating…”. The addtion of “or experienced in” (which I’m pretty sure was advocated for during the DWP consultation with disability groups like AfHL/RNID pre-2013) was always meant to encompass family/friend/carers who, while not professionally trained, were nevertheless providing communication support without which the person with the speech impediment or hearing loss, etc, could not make him/herself understood. I’m surprised to find the FtT in this case arguing about it and that the case had to go to UT for such clarification.
I’m less pleased with this bit though:
8. A number of points may be made in relation to this activity. It is concerned with
a person’s ability to express and/or understand verbal information in their own native
language. It is clear from the definition of “communication support” that verbal
information can include information that is interpreted from verbal into a non-verbal
form and vice versa. It includes, for example, speech interpreted through sign
language.
9. If a person can express and understand verbal information unaided, they will
not score any points under this activity. So, if a deaf person is able to speak in a way
that is understandable, and is able to lip-read so that they can understand verbal
information to an acceptable standard, they will come within descriptor 7a and will not
score points.
If someone can only understand verbal information by lip-reading, what about the times when they aren’t able to face the speaker, or the lighting is poor etc…Surely they should not be considered able to understand verbal information to an acceptable standard, or as often as they need to…
I suspect you’ve answered your own question. Regs 4 and 7 come into play and when not facing a speaker etc. you should be looking at the 50% aspect and whether they can do this reliably. Also worth remembering that repeatedly comes into play. Just like lip speakers in a meeting need to swap every 30 minutes, the act of lip reading can be exhausting and that can lead to much unreliability.
Exactly (and thanks for the information about lip speakers - I didn’t know that). The problem is that now a judge has said a lip reader doesn’t score points I can just imagine decision makers and submission writers trying to deny points to anyone who appears able to lip read.
Yes, depressing lack of investigation, insight and lateral thinking from some judges. One of the ways I ask tribunals to think about this is in terms of muscle. If we overuse our legs or arms they tend to let us know depending on our respective levels of fitness. However, every level of fitness has a limit.
Same with sensory stuff. You use eyes and brain in combination to lip read and, just like listening, there is a limit imposed by length and volume (albeit a different type of volume). Lip speakers whose senses are fully functioning have to change every 30 minutes and work in pairs so why would the effort to lip read not exhaust someone with a hearing impairment!
I use this regularly when the clients referred to me get either social care support or employability support due to their learning disability.
got refused it yesterday at tribunal for the first time when the client has had specific employability support from a learning disability organisation (us in this case).
client got standard mob so they may not wish to challenge it.