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Engagement in social contact always precluded
I’m looking into assisting a client with a UC decision that she has LWA but not LWRCA. She has autism and PTSD. She was awarded 6 points for the Getting About descriptor and 9 points for Coping with social engagement. In the MR, the decision maker said social engagement is not always precluded because she can speak to friends, a shop assistant and her support worker. The reality is very different though and while she can manage the occasional social contact, she cannot manage it most of the time - it’s effectively “always” precluded in the sense of “always” meaning repeatedly, persistently and often. In November, out of financial desperation, she took on a full-time job. It involved working in an office with two other staff taking phone calls and doing emails. It was a disaster, she had terrible anxiety, meltdowns and tears everyday, she was exhausted and her mental health worsened. She did the job for six weeks. On the one hand, the fact that she experienced such distress and ultimately couldn’t manage the job shows that she couldn’t manage social contact within the work place. But on the other hand, does the fact that she managed it for six weeks , albeit stoically, count against her? If it was so stressful for her, why did she not quit after a few days? How would a tribunal view that? I suppose there is the financial desperation aspect to it - she can’t manage on the UC under-25 standard allowance alone so felt she had no choice but to try working. I know it’s hard to comment without knowing the full details of a case, but does anyone have any thoughts on the always precluded descriptor and/or helped someone at appeal and can share their experience please?
In my view the disastrous 6-week try at working is the best possible evidence that your client can’t handle the social engagement involved in a job. If she had quit after a short period it could be argued that she hadn’t given work a fair trial. The DWP argument is in effect that because she can manage limited non-workplace engagement she can manage workplace engagement. Her experience rebuts that argument.
I’d also argue she meets the Schedule 9 criteria for LCWRA. (You may be planning to do that anyway.) That would be on the basis that any work-related activity DWP can suggest, which is usually their standard list, would be damaging to her mental health, or at the very least futile, and being obliged to engage in futile activity must be in itself damaging.
Descriptor 16 precludes social contact that is only possible at the expense of experiencing “significant distress”
Your client’s job lasted only 6 weeks and there is no reason to reject the client’s own subjective evidence of significant distress during that period.
Note that the descriptor only requires experience of significant not severe distress
I’m inclined to agree with the previous replies and would certainly be minded to attempt to challenge this decision.
The limited social engagement you described brought this case to mind, although it deals with PIP rather than ESA:
See also https://administrativeappeals.decisions.tribunals.gov.uk/Aspx/view.aspx?id=4236
“13 The critical question is whether “always” means “always” given the context of regulation 34(2). On this I agree with the persuasive analysis of Judge Mark in LM v Secretary of State for Work and Pensions (ESA) [2013] UKUT 552 (AAC). It is plain from the wording of descriptor 16 read as a whole that “always” cannot mean “for a majority of the time”. I agree with him that descriptor 16(a) cannot be read down to meet the test in regulation 34(2) because that test is the test in 16(c). It must be a noticeably higher preclusion than that. And in my view that is stressed by the difference between “always” having problems engaging in social contact with strangers (16(b)) and “always” having problems engaging in social contact with anyone (16(a)). The only other help given by the context of the regulations is the long-established rule in regulation 27 that satisfaction of the test during part of a day means that the test is met that day. So “always” can be read as meaning “every day” but not “every moment”. That may be important where, as here, the claimant stated that her problems are variable. “
As ever. more useful case law at https://wcainfo.net/activities/coping-with-social-engagement-lcw