PIP for Depression and Anxiety

It is certainly possible to be eligible to claim PIP (personal independence payment pip) if suffering from a mental health condition such as depression or anxiety but it very much depends on how the mental illness affects you. No two people are affected in the same way but let us look at some of the possibilities.

Activity 1 - Preparing food

If a lack of motivation is a symptom of your depression, you could certainly score 2 points for the need to be encouraged or prompted to even begin the task. You probably know that PIP is a points-based benefit and that under each of the 12 headings, including Preparing food, there are statements known as descriptors, and if the wording in the descriptor fits you then you score the points that go with it.

The descriptor in this case reads "Needs prompting to be able to either prepare or cook a simple meal." Be prepared to explain what arrangements exist to get around the problem. It may be that there is someone in your household who does provide that encouragement, or perhaps this person does the preparing of vegetables and cooking for you.

Please do not make the mistake of simply stating that you don't do it and someone else does it for you. That is not the point; what you need to get across in the claim form/appeal is why you can't do it, on at least the majority of days, and why that help is provided.

The starting point is always the wording in the descriptor so if you believe that you should score these 2 points, the Department or tribunal needs to understand why you need to be prompted. Remember also that it can be an unmet need, so that if for example, you live alone and manage by having only cold food or heating up ready meals, or perhaps heating meals that are cooked by someone else and brought to you, then the wording in the descriptor can still apply so that you can score those 2 points.

Symptoms of anxiety could also allow a claimant to score points under this heading, again it very much depends on how the individual is affected. I cannot recall a client whose need for prompting/encouragement was as a result of their anxiety but this does not mean that it can't happen. The descriptor that would score 4 points instead of those 2 is 1(e) "Needs supervision or assistance to either prepare or cook a simple meal." We are talking here about someone who could both prepare and cook a simple meal (cooking on the hob and using raw ingredients) provided that they have someone with them to provide either supervision or assistance.

It is necessary to look at the meaning of those two words to make sure that the descriptor applies to you. Both words are defined in the legislation and it is these definitions that count, not necessarily what you or I might think. "Supervision" means the continuous presence of another person for the purposes of ensuring the claimant's safety. "Assistance" means physical intervention by another person and does not include speech.

A client whose husband was killed by a knife and whose resulting fear of sharp knives meant that they could not abide to use them is perhaps an extreme example of where assistance was required, in that case with the preparation of fresh vegetables. That is at least how we saw it but the tribunal did not award the 4 points and the case is currently on its way to the Upper Tribunal. It does not seem to matter how long I do this job, clients continue to present problems that are new to me and these problems provide convincing arguments for them scoring additional points.

A claimant's anxiety might give rise to a pronounced tremor, which might require either supervision so that the task can be carried out safely, or if it meant that either the preparation or the cooking element of the task could not be carried out and there was therefore a need for assistance from another person with that part of the task.

Upper Tribunal case law confirms that you can get to a point where the claimant is able to do so little that effectively they cannot do it at all, even with someone there to supervise or assist. The descriptor that would fit in those circumstances would be 1(f) "Cannot prepare and cook food." This descriptor scores 8 points and it is sometimes surprising just how big a difference it makes to the overall score when either 4 points or 8 points are scored for this part of the test.

"Risk" can sometimes be an issue and the Upper Tribunal case of RJ shed welcome light onto that issue. Three Upper Tribunal judges sat together to decide RJ and this means that the case carries a lot of weight. They looked at previously decided cases, considering the meaning of "likely", in the context of "in such a manner that it causes or is likely to cause" (harm"). They decided that "likely" was being used in the sense of "a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm".

This is the test when considering whether there are symptoms represent a risk when carrying out any of the PIP tasks, and whether you ought to be awarded points. You may have come across phrases such as "to an acceptable standard" and "within a reasonable time period" in your research so far. These phrases come from regulation 4(2A) which says that if a task within PIP can be achieved by the claimant, you have to go on to consider whether it can be achieved safely, to an acceptable standard, as often as reasonably required and within a reasonable time period.

The judges in RJ said that the aim of regulation 4(2A) is to protect people from harm being caused by individuals undertaking daily living or mobility activities and that this aim would be frustrated if individuals were expected to carry out activities where there is a real possibility of harm but where the risk falls short of being more likely than not. They looked specifically at Preparing food and said that "a person cannot be assessed as needing supervision to prepare food unless, with supervision, they can prepare food safely, to an acceptable standard, repeatedly and within a reasonable time period and so, amongst other things, they must be able to prepare food in a manner unlikely to cause harm to the claimant or another person in accordance with regulation 4.

This means that 1(e) for "Needs supervision or assistance" descriptor that scores 4 points is not the right choice where there is a "risk" of harm even if they are supervised. Therefore, the right choice in that situation is 1(f) "Cannot prepare and cook food", scoring 8 points. To give you an idea, I have seen tribunals award those 8 points where the client has unpredictable seizures.

In my experience, assessors and decision makers are less likely to understand the limitations imposed by depression and anxiety, less likely to believe the claimant and less likely to correctly apply the law to the facts that they do find. My opinion is that a claimant with mental health problems is more likely to have to appeal to get the right outcome.

Activity 2 - Taking nutrition

" Needs supervision to be able to take nutrition" will again score 2 points, as will the need for prompting. This is another area where the assessor and decision maker are quite likely to get it wrong. There is a tendency to think that if the claimant eats anything, then the box is ticked and no points should be scored but case law from the Upper Tribunal suggests that there might be some minimal level of food value necessary to constitute "nutrition". Left to their own devices, the claimant in that case was having only soup and coffee and sometimes a sandwich. I regularly come across claimants whose diet is limited to biscuits and chocolate unless someone intervenes.

Activity 3 - Managing therapy or monitoring health condition

The need for prompting or supervision to take medication will score 1 point 3(b), and this encouragement or prompting might be needed because of a reluctance to take the medication as prescribed or perhaps because they are forgetful, sometimes as a side effect of medication, but the need for prompting could also be linked to the risk of overdose. A need for someone to monitor the claimant's health condition could exist where they are unaware that they are becoming more unwell.

Activity 4 - Washing and bathing

"Needs supervision or prompting to be able to wash bathe" will score 2 points 4(c), and this appears to be the only descriptor relevant to depression and anxiety under this heading.

Activity 5 - Managing toilet needs or incontinence

It is worth remembering that a 'need' should score equally where it is unmet as when that need is met by another person. 5(c) "Needs supervision or prompting to be able to manage toilet needs" will score 2 points. Remember also that the phrase "to an acceptable standard" can be relevant to this part of the test. I have had just one client so far whose depression was such that they could not be bothered to clean themselves properly after using the toilet. They would not accept help from another person but they could not clean themselves to an acceptable standard either so that there was an unmet need for assistance. "Needs assistance to be able to manage toilet needs" scores 4 points.

Activity 6 - Dressing and undressing

6(c) "Needs prompting to be able to dress, undress or determine circumstances for remaining clothed" scores 2 points, as does the need for "prompting to be able to select appropriate clothing". The person may lack the motivation to get dressed or to change their clothes. For some people the problem is with getting undressed at the end of the day, needing someone's intervention to avoid them going to bed still dressed.

It probably will not come up to often but there is Upper Tribunal case law that says that where a claimant's medical condition causes them to hesitate and prolong the process of dressing, even where she was able to make a decision eventually, they should score points because they could not achieve the task "within a reasonable time period". The judge confirmed that hesitation in choosing clothes, even on the basis of the appearance presented, could be a reason to score points under Activity 6. That phrase "reasonable time period" is defined as no more than twice the time that someone else would take.

Activity 7 - Communicating verbally

The relationship between Activity 7 (communicating verbally) and Activity 9 (Engaging with other people face-to-face) has been looked at by the Upper Tribunal. Judge Hemingway accepted that anxiety caused by mental health difficulties can potentially lead to the scoring of points under Activity 7 so that the activity and its descriptors are not simply concerned with physical or sensory impairments to communication.

He said that if a claimant has difficulty in speaking as a result of anxiety, or perhaps some other mental health problem, the next question is what it is that causes that difficulty. Is it a fear of social engagement? Or is it something simply connected to the activity of communicating verbally? He said that it could be both but equally, it could be one or the other.

A claimant who is not able to communicate with strangers or those who are not well-known to them or where they are not able to communicate verbally when in the company of a large number of people, but where they are able to express themselves verbally when it is with someone who is familiar to them, the claimant is likely to score points under Activity 9 but not under Activity 7. Judge Hemingway went on to say that the claimant was so anxious that, not only were they impaired when it came to engaging with others but also impaired with respect to the function of communicating verbally, he might score in the both activities. The judge though this a most unlikely eventuality.

Activity 8 - Reading and understanding signs, symbols and words

The Upper Tribunal has decided that illiteracy is not relevant to this Activity unless it can be shown to derive from the claimant's mental or physical condition. Cases that have been brought where the illiteracy was from a failure to learn to read rather than any demonstrated relevant medical condition have therefore failed.

Activity 9 - Engaging with other people face-to-face

I come across many cases where the assessor and decision maker having incorrectly assessed claimants in this area. Things seems to go wrong for two reasons; firstly, they are often unwilling to believe claimants and secondly, they get the law wrong.

Assessors are used to assessing credibility when it comes to physical movement, commenting on whether, for example, they find someone's walking speed or a claimed limitation in the range of movement of a joint, or expressions of pain, but they seem to be unwilling to ask relevant questions and test the answers people give to allow them to assess whether the claimant is able to carry out the 3 parts of "engaging socially", to interact in a contextually and socially appropriate manner, to understand body language and to establish relationships.

I raised this concern at a forum where advisers and representatives were able to meet, albeit virtually, with the company that employs and trains assessors.

To their credit, the company recognised the problem and said that they are trying to address it. Hopefully I will live long enough to see these efforts bear fruit. The second problem is probably linked to the first since assessors almost always look at the wrong evidence when making their assessment. Case law tells us that "engage socially" means to interact with people in an appropriate manner and will require the claimant to understand body language and to be able to establish relationships.

When justifying their choice of descriptor under this heading, assessors routinely rely on how the claimant engaged with them and they will often comment on the contact the claimant has with family or with doctors or people in shops but this is not social engagement. Judge Rowley said in SF v SSWP that evidence that the claimant engaged effectively with the assessor, or that they could attend for hospital appointments, or take part in work-related group sessions does not meet the point.

9(b) "Needs prompting to be able to engage with other people" will score 2 points. 9(c) "Needs social support to be able to engage with other people" will score 4 points instead. The Supreme Court (the highest court in the UK) looked at this part of the PIP test in July 2019. The Court held that "prompting" could amount to social support, bearing in mind that the claimant has to need support from someone who is not just familiar, but who is experienced in assisting engagement in social situations.

They said that what brings the prompting within descriptor 9(c) is that to be able to engage with others the claimant needs support to come from someone trained or experienced in assisting people to engage in social situations. They stressed the need to pay close attention to the words of the descriptor, the requirement for the claimant to need the social support. It can come down to looking at who has been encouraging the claimant to engage socially, mix with other people and make new friends, as well as looking at how effective those efforts have been.

Where friends and family have had little or no success, I have found tribunals ready to award 4 points, applying the Supreme Court decision in SSWP v MM. For a more extreme case, 9(d) "Cannot engage with other people due to such engagement causing either overwhelming psychological distress to the claimant; or the claimant to exhibit behaviour which would result in a substantial risk of harm to the claimant or another person" will score 8 points.

Activity 10 - Making budgeting decisions

Some explanation is required here. 10(b) "Needs prompting or assistance to be able to make complex budgeting decisions" will score 2 points. "Prompting" is defined as including explaining by another person, but in terms of depression and anxiety, clients I have seen have scored because they either lacked the motivation necessary to make these budgeting decisions, or the whole subject made them too anxious to approach the task. We also need to consider the meaning of "complex budgeting decisions" and this is defined as involving calculating household and personal budgets, managing and paying bills and planning future purchases.

As ever, the issue is not whether the claimant does this but why they would be unable to do it. Do not focus on who does it but think instead about when it started, why someone took over and what was going wrong before they took on the role. 10(c) "Needs prompting or assistance to be able to make simple budgeting decisions" would score 4 points but I cannot remember a client suffering from anxiety or depression scoring those 4 points since "simple budgeting decisions" is defined as involving calculating the cost of goods and calculating change required after buying something.

Activity 11 - Planning and following journeys

This is the first of the two mobility activities and since the second, Moving around, deals purely with the physical side of walking, it is unlikely to be relevant to someone suffering with depression or anxiety (see below). This is a complicated part of the test and partly because of those complications, the Department regularly gets it wrong. The standard law book for this area of law is called Social Security Legislation 2019/20, Volume 1 and it is issued to all tribunal members. It has over 1800 pages and 4 of them are devoted to Planning and following journeys.

As with all of these articles, what follows can be no more than a summary but I hope that it will prove helpful. 11(b) "Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to the claimant" scores 4 points, which is not enough for any award of the mobility component. I regularly see it wrongly selected by assessors and decision makers.

The important piece of case law is MH and this was another one decided by a panel of 3 Upper Tribunal judges. They said that this descriptor is appropriate where the claimant requires prompting to avoid overwhelming psychological distress before being able to embark on a journey. That phrase "overwhelming psychological distress" is clearly important; it is necessary to consider whether the claimant can embark on a journey/leave their home without being overwhelmed, unless prompted. Descriptor 11(c) reads "Cannot plan the route of a journey" and in terms of depression and anxiety, you would think that the most likely way to score these 8 points would be someone who lacks the motivation to carry out the task, but I cannot remember having success with this argument.

Bear in mind that planning the route of a journey could include reading a map, putting an address or post code into a satnav device, including a smart phone, or it could include planning a journey using train or bus timetables. Remember that this has nothing to do with their ability to actually make the journey; they could be planning a journey for someone else to take.

Descriptor 11(d) "Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid" scores 10 points and therefore gives an award of standard rate mobility. The case MH was decided in November 2016 and until then, anxiety was not thought capable of scoring these 10 points or the 12 points that go with 11(f) "Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid". You will appreciate that 12 points would give someone enhanced rate mobility.

The judges in MH said that "only if the claimant is suffering from overwhelming psychological distress will anxiety be a cause of them being unable to follow the route of a journey". They said that the threshold is a very high one and commented on earlier Upper Tribunal cases saying that where those claimants were "anxious", "worried" and "emotional", this was not sufficient for those claimants to satisfy the terms of these two descriptors because they could in fact complete journeys unaccompanied without being overwhelmed. You can imagine that the Department tends to focus on the words "the threshold is a very high one". The word "overwhelming" is not defined in regulations or in MH. English law says that where a word is not defined, it takes its natural meaning.

"Overwhelming" is defined in the Oxford Dictionary of English as meaning 1) very great in amount and 2) (especially of an emotion) very strong. Look at whether the claimant's symptoms of anxiety are on a par with worried, anxious and emotional or whether their symptoms are much stronger than that. If so, then argue that the dictionary definition is met and that the person is indeed experiencing "overwhelming psychological distress" when following the route of a journey, unless they are accompanied by another person.

I frequently see assessors justify not awarding the 10 or 12 points for these descriptors saying that they saw no evidence of overwhelming psychological distress during the assessment. I point out to tribunals in my written submission that the claimant was not following the route of any journey when this observation was made. It is not necessary to think about the role of the accompanying person since case law says that they can be entirely passive, they do not need to be reassuring or distracting, for example. The only descriptor that we have not looked at is 11(e) "Cannot undertake any journey because it would cause overwhelming psychological distress the claimant" which scores 10 points.

Activity 12 - Moving around

I have not come across client suffering with either anxiety or depression who should score points under this heading. The law does recognise that someone with a psychosomatic condition, such that they believe that they are unable to walk, can qualify even though there was no physical reason that prevented them from doing so. The sole question was whether the belief, or the pain they experienced was real to them.

I have had people say to me that PIP is biased towards people with physical limitations. For the reasons set out above, I do not accept that view.