PIP mobility — planning and following a journey
A long form article to explain how overwhelming psychological distress can be taken into account when deciding entitlement to PIP mobility.
Originally published in the Spring 2018 issue of Adviser magazine this article was amended and updated in January 2022. It was correct at the date of publishing.
Kate Smith provides an overview on the application of mobility activity 1 descriptors following the Upper Tribunal decision in MH v SSWP [2016] UKUT 531 (AAC).
After uncertainty about the extent to which overwhelming psychological distress could be taken into account when interpreting descriptors in mobility activity 1(d) and 1(f) ‘planning and following a journey’ a three Judge panel of the Upper Tribunal gave their decision in MH v SSWP [2016] UKUT 531 (AAC) on 28/11/16. The panel in MH decided that psychological distress could, in some circumstances, be taken into account when considering an ability to plan and follow a journey. The government sought to overturn the effect of the judgment by publishing amending regulations to exclude claimants whose mobility issues resulted from overwhelming psychological distress. However, the High Court decision in RF v SSWP & Ors [2017] EWHC 3375 (Admin) quashed the amending regulations leaving the MH decision as the leading authority on the issue.
PIP Mobility activity 1
The list below shows the activity 1 descriptors as originally drafted with the 16 March 2017 amendments shown in bold:
Descriptors
1. Planning and following a journey.
a. Can plan and follow the route of a journey unaided. 0 points
b. Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to the claimant. 4 points
c. For reasons other than psychological distress cannot plan the route of a journey 8 points
d. For reasons other than psychological distress cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid. 10 points
e. Cannot undertake any journey because it would cause overwhelming psychological distress to the claimant. 10 points
f. For reasons other than psychological distress cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid. 12 points
Before the MH decision DWP decision makers interpreted descriptors 1(d) and 1(f) so that they only applied to claimants unable to navigate a route due to a cognitive or intellectual impairment. This interpretation meant that a person who, for example, because of anxiety or mental distress, needed to be accompanied by another person was unable to score points under those descriptors.
Inevitably the question of how these descriptors should properly be interpreted and applied reached the Upper Tribunal. After several conflicting decisions [1] a Three Judge panel was convened in MH v SSWP [2016] UKUT 531 (AAC) to decide the issue. The Tribunal decided that overwhelming psychological distress could be taken into account when assessing entitlement under descriptors 1(d) and 1(f). In response to the MH decision the DWP introduced the Social Security (Personal Independence Payment) (Amendment) Regulations 2017 which inserted the words ‘for reasons other than psychological distress’ into descriptors 1(c), 1(d) and 1(f) with the intention of excluding claimants whose inability to plan or follow the route of a journey unaccompanied resulted from an enduring mental health condition.
On 21 December 2017 the High Court decided in RF v SSWP & Ors [2017] EWHC 3375 (Admin) that the amendments were unlawfully made and quashed the regulation that made the change. Mr Justice Mostyn found that the amendments were discriminatory against those with mental health problems, and there was no objective justification for the change. The regulations were also incompatible with the purpose of the PIP scheme as set out in the Welfare Reform Act 2012, and the failure to consult on the proposed changes was unlawful. The effect of the decision is that the original version of the regulations is reinstated as though the amendments had not been made.
Although initially indicating that they would appeal the High Court decision, the Government instead agreed to accept it and apply the activity in line with the decision in MH v Secretary of State for Work and Pensions. The then Secretary of State for Work and Pensions, Esther McVey, announced an exercise to review claims potentially affected by the decision. This review, known as a LEAP exercise, is still ongoing and the DWP explains the action it is taking in relation to the MH decision in a frequently asked questions document. This says that as at 1 November 2021 around 4,200 claimants have been paid arrears because of the MH Upper Tribunal decision and there are still more awards to be reviewed.
Claimants who might benefit from the decision are being contacted directly by the DWP, if the review identifies that additional benefit is payable to a claimant it will be backdated to the later of the date of the decision in MH (28/11/16) or the date of their claim. People contacted as part of the review won’t have to attend a face to face assessment as DWP will consider the evidence they already have about their needs. DWP has confirmed that people will not lose benefit as a result of the review, awards can go up but won’t be reduced as part of the process.
Applying the MH decision
It is clear that Activity 1 should be interpreted and applied following the reasoning in decision in MH v SSWP [2016] UKUT 531 (AAC). This means that some clients with, for example, mental health, or learning difficulties may be able to qualify for the standard or enhanced rate of the mobility component relying on activity 1(d) and 1(f).
MH decided that:
● Claimants who, due to overwhelming psychological distress, are not able to undertake a journey unless accompanied by another person can qualify for points under 1(d) and 1(f). ‘The phrase ‘follow the route’, when given its natural or ordinary meaning, includes an ability to navigate but is not limited to that. The decision confirms that overwhelming psychological distress caused by encountering others during a journey can be relevant.
● Regulation 4 of the Social Security (Personal Independence Payment) Regulations 2013 provides that a claimant’s ability to carry out the descriptors must be assessed taking account of their ability to do so safely; to an acceptable standard; repeatedly; and within a reasonable time period. The decision found that the fact a claimant suffers psychological distress that is less than overwhelming does not mean that they are not following the route safely and to an acceptable standard. The threshold is a very high one. The test is whether the claimant could in fact complete a journey unaccompanied without being overwhelmed.
● A claimant scores 4 points under 1(b) if they need prompting to be able to undertake any journey to avoid overwhelming psychological distress to them. The panel decided that this only applies to prompting that takes place before a journey. If prompting is required during the journey to avoid overwhelming psychological distress then 1(d) or 1(f) may be appropriate.
MH makes clear that the threshold of ‘overwhelming psychological distress’ is very high. Descriptors 1(d) and 1(f) will only apply to clients who can show that they need another person to accompany them on a journey to avoid them becoming ‘overwhelmed’. Commenting on two of the cases before them, the panel said that the fact the claimant was ‘anxious’ and ‘worried’ or ‘emotional’ was not sufficient to score points under descriptors 1(d) or 1(f) because they could in fact complete journeys unaccompanied without being overwhelmed.
Although MH v SSWP confirms that it is possible for people with mental health and learning difficulties to be awarded points under activity 1(d) and 1(f), the threshold is high. Not only must the claimant experience overwhelming psychological distress when following a route, they must be unable to complete that journey without being accompanied by another person. A person who cannot, even if accompanied by another person, follow an unfamiliar route because of overwhelming psychological distress could score 10 points under 1(e). They will score 12 points and be entitled to the enhanced rate mobility component if they cannot complete a familiar journey unaccompanied.
A claimant who feels that they should benefit from the decision in MH and has not yet been contacted by the DWP will need advice about action that they may wish to take on their own initiative if they might now qualify for the mobility component. The action that can be taken depends on the date of the PIP award decision and whether it was before or after the MH decision on 28/1/16. It also depends on whether the claimant was awarded any rate of PIP on that claim.
Where activity 1 is in issue the decision maker and a Tribunal will use the original version of the descriptors and apply the decision in MH. DWP indicated that they won’t look at claims decided before the MH Judgment on 28/11/16, so people who received a decision before this date will have to ask for their claims to be looked at again (see below).
People with PIP decisions made before 28/11/16
If the decision on a PIP claim was made before 28/11/16 it will not be included in the LEAP exercise. Anti-test case rules apply and mean that a claimant cannot use MH (the test case) to establish that the DWP made an error when deciding a claim before 28/11/16. The exception to this is where a claimant had an ongoing mandatory reconsideration or appeal against the decision made before 28/11/16. If a claimant had challenged a decision in time they could still benefit from the MH decision and be awarded the mobility component based on difficulty resulting from overwhelming psychological distress.
Although it’s not possible to ask for any time revision of a decision made before 28/11/16 a claimant can ask for supersession of the awarding decision. Supersession takes effect from a date later than the original decision so arrears won’t be paid back to the date of the original award if the mobility component is awarded. Arrears are payable from the date of the decision in MH on 28/11/16 (3). However, before asking for an award to be looked at people need to be warned that the DWP decision maker will reconsider the whole of the PIP award on supersession. In some cases this can lead to the reduction of an award.
If a claimant was not awarded any PIP on their claim, and they don’t have an ongoing challenge against the decision they won’t be able to rely on MH to ask for the mobility component for a past period. People in this position who have not yet made a new claim will need to do so now.
People with PIP decisions after 28/11/16
The anti-test case rules don’t apply to any decisions made after 28/11/2016. People who were refused PIP, or not awarded the correct rate of mobility component can ask for any time revision of the decision on the grounds it was made as the result of official error (i.e. arguing that it did not take account of the MH decision).
People will need to contact the PIP department asking for the award to be looked at again, provide any evidence they have of their overwhelming psychological distress when walking outside and to confirm that the difficulty existed at the date of the decision being challenged.
If any time revision is successful, arrears of the mobility component will be payable from the date of the MH decision on 28/11/16.
If a claim was decided and PIP awarded before 28/11/16, but there have been further decisions made since this date the anti test case rule won’t apply to that later decision. The claimant might be able to ask for an any time revision on the grounds that the decision was made as the result of official error, or appeal the decision in time if it was made in the previous 13 months. If successful, arrears of the mobility component will be payable from the date of the decision made after 28/11/16.
Footnotes
1. The Judges deciding UK/313/2015 [2015] UKUT 694 (AAC), and UK/622/2015 [2015] UKUT 344 (AAC) found that the natural meaning of ‘follow the route of an unfamiliar journey’ is a narrow one confined to the ability to navigate, without considering overwhelming psychological distress that may be caused by coping with obstacles such as an inability to ask for directions if lost or of dealing with crowds. In RC v SSWP [2015] UKUT 386 (AAC) the Judge reached the opposite conclusion finding that an inability to follow a route caused by psychological distress could count even if the claimant had the intellectual capacity to navigate the route.
2. In a letter to MP’s, dated 29/3/18, Secretary of State for Work and Pensions, Esther McVey has confirmed that no one will be required to attend a face to face assessment or have their award reduced as part of the administrative exercise and set out a timetable for review of claims. The letter and FAQ is available at http://data.parliament.uk/DepositedPapers/Files/DEP2018-0345/HC_MH_Judgement_and_factsheet-29.03.18.pdf
3. Regulation 24(a) and Regulation 35(5)UC, PIP etc. (Decisions and Appeals) Regulations 2013 provides for supersession where the original decision was made as the result of an error of law.
Kate Smith works in the Welfare Benefits Expert Advice team at Citizens Advice.
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