Applying the PIP mobility descriptors

Kate Smith takes a look at the Upper Tribunal decisions on the PIP mobility activities to see how they assist advisers to make sense of the descriptors (or not).

The Upper Tribunal decisions published so far give support and guidance on the correct interpretation and application of the PIP descriptors. As is to be expected in the early stages of the development of PIP case law, the decisions do not always reach the same conclusions. Where decisions of single Judges appear to conflict, Tribunals must decide, and explain which they prefer. Until there are further decisions or decisions of a Three Judge Panel to clarify points, advisers can argue for Tribunals to apply the decision which best supports their client’s case.

Mobility Activity One - planning and following a journey (see box 1)

Of the PIP decisions published so far perhaps the most contentious are those concerning the interpretation of mobility activity 1(d) and 1(f) under ‘planning and following a journey’.

Descriptors 1(d) and 1(f) are met if the claimant ‘cannot follow the route of an unfamiliar 1(d) or familiar 1(f) journey without another person, assistance dog or orientation aid’. DWP’s view is that the descriptor refers to the claimant’s inability to navigate a route due to a cognitive or intellectual impairment so that a person who, for example, because of anxiety or mental distress, needs to be accompanied by another person will not score points under the descriptors.

The difference in interpretation can be crucial for a person with a mental health condition that prevents them from going out alone, but who is capable of navigating a route if accompanied. If the descriptors refer to the ability to navigate a route, such a person would only meet 1(b) (on the grounds that they require prompting to undertake any journey to avoid overwhelming psychological distress) and score four points or 1(e) (cannot undertake any journey because it would cause overwhelming psychological distress) and score 10 points. The difference is between no award or an award of standard mobility rather than enhanced.

To date there are three main decisions on this point. CSPIP/109/2015 [2015] UKUT 386 (AAC) finds that the descriptors 1(d) and 1(f) do not apply solely to people unable to navigate but can apply to people unable to leave the house to follow an unfamiliar or familiar route (even if they were capable of navigating the route) without being accompanied. The other two decisions, UK/622/2015 [2015] UKUT 344 (AAC) and UK/313/2015 [2015] UKUT 694 (AAC), decide that the descriptor is concerned with an ability to navigate a route which does not include coping with difficulties that arise along the way. They decided that a claimant with a mental health condition impairing their ability to navigate a route can meet 1(d) or 1(f), but only if the effects of psychological distress impair their ability to an extent that they are unable to navigate to follow the route.

Box 1: Planning and following a journey

a. Can plan and follow the route of a journey unaided. (0)
b. Needs prompting to be able to undertake any journey to avoid overwhelming. (4)
c. Cannot plan the route of a journey. psychological distress to the claimant. (8)
d. Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid. (10)
e. Cannot undertake any journey because it would cause overwhelming psychological distress to the claimant. (10)
f. Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid. (12)

Is ‘cannot follow’ confined to problems with navigation?

It is currently two to one in favour of descriptors 1(d) and 1(f) being confined to problems navigating a route. To help explain the current position, a detailed look at the decisions is needed.

In CSPIP/109/2015 [2015] UKUT 386 (AAC) due to anxiety the claimant could not leave the house alone. The Secretary of State (SoS) argued that as there was no evidence that the claimant had a cognitive impairment that would render her unable to navigate a route, she could not satisfy descriptors 1(d) or 1(f) as they were confined to an ability to navigate a route. The references to ‘another person’; ‘assistance dog’ and ‘orientation aid’ showed that orientation and sensory impairment problems were meant to be included under the descriptor.

The Judge, Sir Crispin Agnew of Lochnaw, rejected the restricted meaning of ‘cannot follow’ put forward by the SoS, noting that this would place the descriptors in a category of their own relating to the ability to navigate, whereas 1(b) and 1(e) are in a different category relating to ‘psychological distress’. In the Judge’s view ‘cannot’ is the significant word and it is not qualified by any reason. The Judge decided that ‘cannot follow’ in 1(d) and 1(f) covers the situation where a claimant ‘cannot follow’ the route because they cannot navigate the route or because they cannot follow it because of some psychological factor, such as anxiety, even if they have the intellectual capacity to follow the route in theory. Even if a claimant can in theory navigate a route, if they cannot in fact go out and follow it without the assistance of another person, dog or other aid, whatever that reason, they could meet the descriptor and score points.

If CSPIP/109/2015 is followed, many claimants with mental health conditions such as, for example, anxiety and agoraphobia, who are unable to leave the house or can only walk unaccompanied on familiar routes, will score 12 or 10 points.

In UK/622/2015 [2015] UKUT 344 (AAC), Judge Jacobs took a different view of ‘cannot follow’ when considering an appeal by a claimant with PTSD who could not go to unfamiliar places on her own due to her mental condition and her difficulty speaking or mixing with other people. She argued that she may find herself lost in a new place and would be unable to approach someone to help.

The SoS again argued that descriptor 1(d) assesses the ability to navigate a route and not whether help is needed to deal with problems that they may encounter in the external environment. It does not assess whether the claimant needs assistance for incidents that may occur while following the route.

Judge Jacobs accepted the SoS submission that the natural meaning of ‘follow the route of an unfamiliar journey’ is that it is concerned with navigation rather than coping with obstacles of whatever sort may be encountered on the route. Activity 1 covers both planning and following a journey. Descriptor 1(d), like descriptors 1(a) and 1(f), deals with ‘following the route of the journey’ and assumes that the journey involves a route that has been planned. Any difficulties that may arise during the journey, such as getting lost and asking for directions or encountering crowds, are not difficulties with following the route and cannot be considered when deciding if the descriptor is met.

UK/313/2015 [2015] UKUT 694 (AAC) is the most recent decision in which Judge Ward considers the other two decisions, preferring the Jacobs decision on the navigation point. The claimant suffered from anxiety and depression and relied on friends and family to get about, except when she went to her GP’s surgery which was close to her house. She was able to navigate but being out on her own made her anxious. It was argued for her that psychological distress was capable of being relevant to descriptor 1(d) and that although the claimant had the cognitive ability to follow a route, it was the fact that she could not, without another person, follow an unfamiliar route on her own without overwhelming psychological distress.

The SoS submitted:

  • that the use of ‘follow the route’ in descriptors 1(d) and 1(f) was deliberate to indicate that they were concerned with an ability to navigate
  • the reference to ‘another person, assistance dog or orientation aid’ gives colour to the descriptors; and
  • overwhelming psychological distress could, depending on its nature, frequency, duration and severity make a person unable to navigate.

Judge Ward considered Judge Jacobs’ analysis of the linguistic structure of the various descriptors at para 14 of that decision and agreed that it was accurate. The descriptors address a number of different types of limitation on the activity of ‘planning and following journeys’. The emphasis placed by Judge Agnew on the word ‘cannot’ was misplaced and in Judge Ward’s view, nothing turned on the word ‘cannot’ but on the distinctions contained within the wording of the descriptors as to the type of limitation in planning and following journeys a claimant has.

Agreeing with Judge Jacobs, the deliberate use of the words ‘follow’ and ‘route’ focus on the claimant’s ability to navigate along pathways and is not concerned with other possible problems that a claimant may have outdoors. Without disagreeing with Judge Jacob’s examples of a claimant unable to ask for directions or encountering crowds (which he considered were not difficulties of following a route), Judge Ward could conceive of types of difficulty occurring on the way which might properly fall within the scope of the descriptor. To that end, Judge Ward gave examples of a need to navigate round road works or the effects of an accident, where a person with a particular cognitive difficulty (in making minor modifications to the route they had planned) may not be able to follow the route.

As conceded by the SoS, overwhelming psychological distress can be relevant to an ability to follow a route under descriptors 1(d) and 1(f). The question will always be — is the claimant’s ability to navigate the route impaired by a claimant’s physical or mental condition and if so, descriptors 1(d) and 1(f) may be met.

Where does that leave claimants?

Claimants who can show that the effects of a mental health condition impair their ability to navigate to follow a route will be able to score points under 1(d) or 1(f). Advisers will need to assist clients to argue that the effect of their mental health condition leaves them unable to navigate a route without another person. This means showing that the client will experience psychological distress to an extent that it impairs the ability to navigate. If this cannot be shown, clients will only score under 1(d) and 1(f) if they show that Judge Agnew’s decision is correct and that ‘cannot follow a route’ includes a person who is intellectually capable of planning and following a route but who cannot (due to disability) execute the route without being accompanied.

Mobility Activity Two - moving around (see box 2)

There have been a few published decisions on activity two, and unsurprisingly they do not always agree with each other.

Aid to moving around

In CPIP/1206/2015 [2015] UKUT 547 (AAC), the Judge considered whether an asthma inhaler is an aid for the purposes of mobility activity 2 and concluded that it was not.

Regulation 2 of the Social Security (Personal Independence Payment) Regulations 2013 explains that an ‘aid or appliance’:

(a) means any device which improves, provides or replaces C’s impaired physical or mental function; and

(b) includes a prosthesis.

The SoS contended that the prescription medicine in an inhaler may improve the claimant’s impaired physical function of breathing, but is not an ‘aid’ as it is not a ‘device’. And although the inhaler could be described as a ‘device’, it simply delivers the medication into the body and so does not, in itself, improve, provide or replace a claimant’s impaired physical function.

Judge Rowley concluded that an asthma inhaler does not constitute an ‘aid’ for the purposes of the moving around descriptor. As has long been accepted in other areas of disability benefit, a claimant’s ability should be assessed taking into account the beneficial effects of medication which it would be reasonable to expect the claimant to take. In the Judge’s view, medication improves the claimant’s physical function of breathing — the fact that that it is administered using a device is irrelevant.

It is clear from this decision that an asthma inhaler, GTN spray or other form of medication will not be considered as an ‘aid’ when assessing a claimant’s ability to move around. In one sense medication does ‘aid’ an ability to walk, but the Regulation 2 definition of ‘aid’ requires the aid to be a device which improves, provides or replaces C’s impaired physical or mental function. An inhaler and medication are not devices.

Box 2: Moving around

a. Can stand and then move more than 200 metres, either aided or unaided. (0)
b. Can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided (4)
c. Can stand and then move unaided more than 20 metres but no more than 50 metres. (8)
d. Can stand and then move using an aid or appliance more than 20 metres but no more than 50 metres. (10)
e. Can stand and then move more than one metre but no more than 20 metres, either aided or unaided. (12)
f. Cannot either aided or unaided i) stand; or ii) move more than one metre. (12)

Descriptor 2(c) moving unaided

Two decisions have considered whether descriptor 2(c), ‘can stand and then move unaided more than 20 metres but no more than 50 metres’ should be applied taking account of the Regulation 7 requirement that, where more than one descriptor in an activity applies, the highest scoring descriptor is used. Does a claimant who is capable of standing and moving unaided for more than 20 metres but no more than 50 metres score eight points no matter how far he is subsequently able to move using an aid?

Judge Hemingway in UK/694/2015 [2015] UKUT 529 (AAC) answers ‘no’ whereas Judge Mitchell in CPIP/4572/2014 [2015] UKUT 612 (AAC) answers ‘yes’. Both are decisions of a single Judge and therefore potentially have equal weight, though Judge Mitchell’s comments regarding descriptor 2© appear to be obiter (if so, they carry less weight). It is also worth noting that Judge Hemingway’s decision has been selected by the Upper Tribunal for highlighting.

In CPIP/4572/2014 [2015] UKUT 612 (AAC) Judge Mitchell was considering a case where the tribunal had dismissed an appeal, finding that the claimant could walk in excess of 200 metres with the aid of her crutches or a walking stick. The Judge found that the Tribunal had erred in not assessing how far the claimant could move unaided.

In reaching the above decision, Judge Mitchell noted an inconsistency between the descriptor and Regulation 4(2) of the Social Security (Personal Independence Payment) Regulations 2013 which requires that the claimant’s ability to carry out an activity is to be assessed whilst wearing or using any aid or appliance which the claimant normally wears or used; or which s/he could reasonably be expected to wear or use. Applying the principle set out in the sixth edition of Bennion on Statutory Interpretation (Butterworths), the general words of regulation 4(2) must yield to the specific words of mobility descriptor 2(c), so it is necessary to assess the claimant’s ability to walk unaided.

Although not necessary to the decision made, Judge Mitchell referred to his view of the correct interpretation where a claimant can then walk beyond 50 metres using an aid. Judge Mitchell stated that he had heard argument on the point but he was not presently convinced there is any justification for departing from the literal wording of mobility descriptor 2(c). He did not think it irrational to isolate claimants unable to move 50 metres unaided and award them standard rate mobility, regardless of how much further they could walk with an aid. Judge Mitchell emphasised that a person reliant on an aid is likely to have greater disability-related costs.

In UK/694/2015 [2015] UKUT 529 (AAC) Judge Hemingway reached a different conclusion and accepted the SoS submission that reading descriptor 2(c) so that a claimant only able to move unaided for between 20 and 50 metres would score eight points regardless of how much further they could walk aided, would create an anomaly. If descriptor 2(c) is considered in isolation, it would appear that a claimant who is capable of standing and moving unaided for more than 20 metres but no more than 50 metres will score eight points no matter how far he could then could walk using an aid. However, if read together with all of the descriptors the position appears different.

Judge Hemingway noted that all of the descriptors set distance boundaries -a claimant meets the descriptor if he cannot exceed the stated distance. If 2(c) could be satisfied by a claimant unable to move more than 50 metres unaided but able to move more than 200 metres with an aid, the descriptor would be operating in a different way to all of the others with regard to the distance set. It appears that the intention of descriptors 2(c) and 2(d) was to award either eight or 10 points based on whether the distance is achieved unaided or aided. The worse off claimant who needs an aid or appliance to achieve a distance of more than 20 but no more than 50 metres scores two more points than the one who can do so completely unaided.

In the Judge’s view reading the descriptors in this way (by reference to the distance boundaries set in each) allows a way of understanding and rationalising the descriptors which avoids the anomaly that results in a person able to walk 200+m with an aid qualifying for eight points under 2(c). If a tribunal finds that a claimant is able to walk more than 50 metres then it does not matter how that was achieved - the claimant had passed from one threshold to another.

If followed, Judge Hemingway’s decision results in a client scoring no points if they can walk in excess of 200 metres with an aid even if unaided they can only walk between 20 and 50 metres. If the descriptor is read in the way Judge Mitchell suggests, a claimant who is unable to walk up 20 metres unaided but can manage in excess of 200 metres aided would score no points whereas a claimant able to walk 20–50 metres unaided scores eight points. Whether the anomalies created allow descriptor 2(c) to be read in the way suggested by Judge Hemingway remains to be seen. It is likely that there will be several more decisions, and possibly a Three Judge Panel or Court of Appeal decision before the position is clarified.

Conclusion

Many more decisions on the PIP mobility descriptors are expected as the Upper Tribunal analyse and interpret the meanings. In the meantime, advisers must familiarise themselves with the latest decisions and prepare to argue for the interpretation that best suits their individual client’s situation.

Kate Smith is the Senior Welfare Expert at Citizens Advice and a member of the Adviser Editorial Board.

This article was first published in Issue 174 of Adviser magazine (March/April 2016)

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