telephone assessments and engaging face to face

Has anyone run an appeal/MR challenging HCP’s statements on how a claimant was said to engage with the assessor during a telephone assessment and then applying that to activity 9? 

I’m looking at one where the claimant previously had 9D and alongside the usual blah blah about medication and lack of care plans and CMHT input, there is reference to establishing rapport and engaging appropriately with the HCP during the assessment. Therefore nil points.

I would be grateful for any thoughts.

Not much to offer other than how effing absurd to use a telephone conversation as evidence of a descriptor that is about the client’s ability to engage “face to face” - the clue for the HCP is in the descriptor. Honestly, how do they get away with this nonsense?

I can perhaps see a germ of logic in it if I am being generous. An analogy being the old DLA case (can’t remember its reference) which says that whilst receiving help by telephone cannot count as supervision , it can perhaps indicate a need for supervision. Perhaps speaking on the phone can give some indication of how you are likely to engage face to face? But it does of course exclude all the non oral aspects of engagement like body language, eye contact, non-verbal communication, etc., and how anxiety at being in the presence of another person affects things.

There are plenty of other things to hang this particular case on, not least that I was on the call making notes and the HCP’s report is an outstanding piece of work, imaginative fiction at its finest. I am interested in how best to deal with this aspect of it though, perhaps for a different case that is more finely balanced.

I don’t know how they get away with this nonsense either but if you are looking for authorities on Descriptor 9,  this has become my standard submission

“1 It was established beyond doubt in RC v Secretary of State for Work and Pensions [2017] UKUT 0352 (AAC) that establishing a relationship means more than reciprocating exchanges. A brief conversation with a stranger about the weather while waiting for a bus does not involve establishing a relationship in the normal sense of the word. Nor does buying a burger or an ice cream, although both involve reciprocating exchanges

2 It is also beyond doubt following the Supreme Court’s Judgment in Secretary of State for Work and Pensions (Appellant) v MM (Respondent) (Scotland) [2019] UKSC 34 that the need for social support in connection with Descriptor 9 does not necessarily mean that such support must be given within the confines of the engagement itself.( [2019] UKSC 34 at [43]). The Supreme Court (at [35]) also approved of what the Court of Session held in their Judgement at [55]

In our opinion the critical distinction between “prompting” (as defined in the Schedule) and “social support” is the fact that social support comes from a person trained or experienced in assisting people to engage in social situations. That does not mean, as the argument is somewhat unkindly parodied in some of the cases, that “prompting” qualifies as “social support” merely because the help is in fact given by a person trained or experienced in assisting people so to engage. There has to be some necessity for the help to be given by a person with this training or experience. In many cases it may well be that that is because the help is of some specialist kind which only a person trained in that specialism can deliver. For example, psychological support would normally be given by someone trained in psychology. This would clearly count as “social support”. But there may be cases where the support is in the nature of encouragement or explanation but, because of the claimant’s mental state, will only be effective if delivered by someone who is trained or experienced in delivering that type of support to that individual. In such a case there will not be a qualitative difference in the help given, but the help can be regarded as “support” because of the necessity for it to be provided by someone trained or experienced in delivering it.

2.1 It is arguable in the light of RC and of MM that Mr X requires social support in order to engage with other people”

Feel free to adapt it

The idea is that evidence needs to be weighed and assessed. There will very rarely be categorical proof that a claimant meets any of the PIP descriptors. The majority of cases will depend on imperfect evidence which points one way or the other by analogy. The job of the decision maker or tribunal is to do their best to figure out the case based on weighing up competing evidence.

The report that your client was able to engage well at an assessment, whether in person or on the phone, obviously points towards a finding that he falls within descriptor 9a. That does not mean that a telephone assessment is equally valuable evidence as a face to face one. There are significant differences between telephone and face to face engagement and the analogy between the evidence and the descriptor is weaker so the evidence cannot properly attract the same amount of weight. Assuming that you are dealing with a rational decision maker, that is then going to mean that it will take less weighty evidence for the other point of view to persuade.

CPIP/2034/2017
The description of the activity is ‘engaging with other people face to face’ (my emphasis). I am quite unable to see how a claimant’s ability to use a phone to send texts could possibly demonstrate an ability to engage with other people ‘face to face’, not least because one of the requisite criteria of an ability to ‘engage socially’ is an ability to understand body language.’ (paragraph 19)

Although this refers to text message the point about understanding body language would appear to apply equally to telephone conversations.

I have recently (maybe slightly tongue in cheek) making an effort to highlight how the assessor has of course had thorough training on how to engage with people who might require prompting or social support to engage.  In turn this means that if someone has been able to engage wit ht he assessor then it may just show their ability to be able to engage with a person trained or experienced in assisting people to engage in social situations.

Engaging with others face to face in Social situations - Some good points posted re the difference between prompting and support, which I may use myself.

Whenever the HCP or DM states “attends GP appointments, engaged ok during the assessment, engaged and coped during the telephone assessment” etc -  to justify not awarding points, I cant help but smirk - if that’s the right word - (used to laugh but now become part of normal for HCP and DM’s) - we know this is simply silly and not part of the assessment for this activity. However this makes claimants angry and frustrated.

It is accepted that attending medical appointments, attending DWP assessments is not part of this test. I’m sure its also in their own guidance
I never have a problem at Tribunal when pointing this out, even at the MR stage points have been awarded for this activity once you spell it out that attending the assessment or appointments is not part of the test.

I always enjoy pointing out the obvious, that engaging with a telephone assessment is not Engaging Face to face or Social Interaction.

Like Elliot says, it is a question of balancing the evidence. So the way to approach this is to apply the proverbial trowel to all the evidence that supports your client’s inability to socially engage:. is there evidence eg of the GP only carrying put phone consultations because of an inability to socially engage face to face; do they have a support worker; have they been “banned” from anywhere; are there statements available supporting lack of social engagement skills; etc.
You’ve got to remember that phone consultations remove a vital tool from the HCP’s armoury i.e. the ability to observe, so they can no longer apply their powers of deduction e.g. “handled paperwork so can use a knife and fork”. they can’t make observations as to walking ability or eye contact etc, so need to pick up on “subtle nuances”. So if the report reads “was able to communicate clearly with me over the phone and told me that they were very much looking forward to the pandemic ending so they could go down the pub as they missed the camaraderie”, certain conclusions can be drawn, bit if they have just recorded “was able to cope with the phone consultation” the conclusions to be drawn are more speculative. As there is a history here (and presumably a previous assessment) it is worth picking up on comments / conclusions from there such as “at the previous assessment it was noted that they made little or no eye contact, needed constant prompting from their support worker” etc.
A well drafted MR request should get this overturned

Building on the other good points above, I think it depends on what problems are being claimed. Evidence of engaging by phone could be evidence of ability to engage face to face, but it depends. (That said, I haven’t seen an assessor’s report in at least a year that advises any point for mental health, regardless of what facts are noted. )

I think we assume HCPs are familiar with the exact wording of activities when it often isn’t the case. Such things are given an added layer of absurdity by the PIP 2 referring to it as “mixing with people” when it is of course nothing of the sort.

I’ve had numerous successful challenges on this with sight impairment cases. Retinal dystrophies or anything with a reduction in central vision. Guess what. The claimant did not “make good eye contact”. They couldn’t even see your facial features. They simply sat facing the direction the voice was coming from as would be the polite thing to do in most conversations.

You are quite right of course, Mike.. However, it shouldn’t be the case as the guidance produced by the government specifically for the use of assessment providers is very clear on acitivity 9 being “face to face”:
“This activity considers a claimant’s ability to engage with other people, which means to interact face-to-face in a contextually and socially appropriate manner, understand body language and establish relationships. The different aspects of the ability to engage with other people needs to be considered in the round”
There is no specific mention of phone calls .and the guidance is in black and white that we are looking at face-to-face engagement
Having said that, the ADM defines engage socially as:
“Engage socially means
1. interact with others in a contextually and socially appropriate manner and
2. understand body language and
3. establish relationships.”
Again, there is no mention of phone conversations.
So it can be seen how DMs can be confused over this issue (though I have never found it easy to understand body language during a phone call!).
At the end of the day, it is the HCP’s job to provide an opinion based on the evidence presented to them and it is the DM’s job to weigh that evidence and everything else in front of them in terms of what the law says. In this case, the HCP has made their opinion on the basis of speaking to the individual and their apparent belief that an ability to have a phone conversation with someone is akin to meeting them on a face-to-face basis. Medical or even social experts, particularly those who practice in the field of mental health may beg to differ, as may a legally trained tribunal judge.

...or we can simply accept such reasoning it appears .....like one of my recent cases where the assessor spoke to the client for about 90 seconds, before being handed over to his mother to complete the rest of the telephone assessment ....but was still refused PIP on the relevant engagement and mixing activities as he “engaged well with good eye contact throughout”....all this pointed out at MR ....but still going to appeal with the MR ground not conceded one iota!!!!!