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Two upper tribunal judges have come to exactly opposite conclusions about the law relating to the PIP mobility component activity ‘Planning and following journeys’, leaving the DWP and claimants to argue at first-tier tribunals over which decision the judge should follow. One of the two decisions could see tens of thousands of lower rate DLA mobility claimants, especially those with mental health conditions, lose their award when transferring to PIP.

Conflicting decisions
In a decision dated 17 June 2015, upper tribunal judge Edward Jacobs decided that help from another person in connection with planning and following journeys deals only with navigation and “excludes dealing with other difficulties that may be encountered along the way.” This is in line with DWP guidance, which many tribunals have chosen to disregard until recently.

In a decision dated 23 June 2015, however, upper tribunal judge Sir Crispin Agnew of Lochnaw Bt QC, held that help from another person in this connection can be for “any reason including a mental health reason such as overcoming anxiety or other psychological distress.”

Mobilising activity 1 looks at your ability to plan, follow and undertake a journey, with points scored as follows:

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. Cannot plan the route of a journey. 8 points.
d. 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. Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid. 12 points.

Jacobs’ case
In the Jacobs case, the claimant’s evidence was that:

“I get lost a lot, but not always – only if it is a new place – I panic, I cannot concentrate, I cannot plan a route, I panic. It really helps to have someone with me and reassure me and encourage me to go out – doing this on my own is extremely stressful and exhausting.”

She also claimed that:

“PTSD – depression. I stay indoors as much as possible. The PTSD makes me feel I am in danger when I am not – causes extreme stress . . . I don’t like strangers trying to talk to me or saying hello. I get extremely stressed, I over react, I find it very distressing and it makes me very tired and I suffer fatigue.”

Zero mobility points
However, the health professional who carried out her PIP assessment found that she had normal mental health and she scored no points for mobility and just two points for problems with dressing.

A tribunal also awarded her zero points for mobility, but six points for daily living: 4 for problems engaging with other people and two for budgeting.

With the help of the Citizens Advice Bureau, the claimant won permission to appeal to the upper tribunal, arguing that descriptor 1d should have been considered by the tribunal because:

“She cannot go to unfamiliar places on her own, due to her mental condition and her difficulty to speak or mix with other people. She may find herself lost in a new place and will be unable to approach someone to help.”

The upper tribunal also considered whether 1f could apply, because even on a familiar route there might be an accident or road works that would mean a change of route.

The DWP argued that descriptor 1d only applies to problems with navigating a route and not to problems in the external environment that claimants may encounter while doing so.

The CAB, unfortunately, made only a ‘no comment’ response to this argument by the DWP.

Jacobs’ decision
Judge Jacobs held that the DWP were correct and that:

“descriptor 1d deals with navigation and excludes dealing with other difficulties that may be encountered along the way.”

He went on to say that:

“Difficulties that may arise during the journey, such as getting lost and asking directions or encountering crowds, are not difficulties with following the route. They may prevent the claimant getting back onto the route if lost or finding an alternative route to avoid some obstacle, but those are different matters.”

Jacobs argued that descriptors 1b and 1e deal with undertaking the journey, but 1a, 1d and 1f with following the route of a journey.

Agnew’s case
Judge Sir Crispin Agnew, however, came to the opposite conclusion to judge Jacobs, less than a week later.

In this case the evidence was that the claimant “never goes out alone not even to the local shops due to anxiety.”

The tribunal awarded the claimant 4 points for 11b, but the claimant appealed on the grounds that she should have been awarded 12 points for 11f.

The DWP argued that references to “assistance dog” and an “orientation aid” in 1f:

“show that orientation and sensory impairment problems are meant to be included under this descriptor” and that accordingly it is navigation that is being tested in these descriptors. A person who required to be present but did not help with navigation would not be included.”

The claimant’s representative responded that:

“A person who cannot undertake a journey, cannot follow a route . . . the test for mobility are not designed so that someone who can plan and follow a route, intellectually, or in their imagination, but due to a disability cannot execute it, unless accompanied, is to be excluded from the benefit.”

Agnew’s decision
In his decision, Agnew agreed with the claimant’s representative, holding that:

“Even if a claimant can in theory navigate a route, if the claimant cannot in fact go out and follow it without the assistance of another person, dog or other aid, whatever that reason, I consider it brings the claimant within the Activity.”

He went on to say that:

“I do not accept the Secretary of State’s argument [Submissions paragraph 4] that “another person” has to be construed in line with “assistance dog” and “orientation aid” so that “another person” is restricted to someone helping with “orientation and sensory impairment” alone. There are definitions of “assistance dog” and “orientation aid” which limited the scope of dog and aid, but there is no definition limiting the purpose for which the person can be used. Activities 11d and 11f do not qualify “another person” such as “aided by” or “assisted by” which are words defined in paragraph 1 of the schedule. I therefore conclude that the reason the person is required so that the claimant can follow the route can be any reason including a mental health reason such as overcoming anxiety or other psychological distress.”

The danger now
If followed, Jacobs decision is a disaster for claimants, especially those with mental health conditions who have problems with something other than straightforward navigation.

It means that they must show that they experience such “overwhelming psychological distress” that they cannot go out at all in order to get an award of the mobility component.

Because if they can go out, but need someone with them, for example to cope with fear of strangers or the possibility of an epileptic seizure, then they can only score four points for 1d. This is not enough to get an award of the mobility component unless they also have physical problems covered by the ‘’Moving around’ activity.

Jacobs decision, if followed, also means that claimants with a mental health condition who have problems with something other than straightforward navigation can never be awarded the enhanced rate of the mobility component. Because even if they can’t go out at all they can only score 10 points, not enough for the enhanced rate..

It also means that claimants who cannot go out alone because of, for example, the risk of having a seizure are unlikely to qualify for the standard rate of the mobility component on those grounds.

What you can do
Until recently, many tribunal judges have been happy to disagree with the DWP’s claim that 1d and 1f do not apply to claimants with mental health conditions, but only to those with visual, cognitive or intellectual impairments who need active help to navigate.

But the DWP have tightened up their guidance on this issue, which seems to have persuaded some tribunals to accept their opinion. Now the Jacobs’ decision gives them even more reason to refuse PIP to huge numbers of claimants who currently qualify for at least the lower rate of the DLA mobility component.

However, the Agnew decision has equal force in law, so it’s up to each tribunal to decide which to follow until a tribunal of three upper tribunal judges or a higher court makes a firm choice between the two.

In the PIP appeals section of the members’ area we have published a downloadable submission pointing out what we consider are material errors of law in the Jacobs’ decision and asking the tribunal to follow Agnew instead.

If you have to appeal on this point and find that the DWP are pushing for the decision that they prefer to be followed by the tribunal, you can send in this submission in response. The tribunal are still free to choose whichever decision they wish and they do not have to accept the arguments we have put forward.

But our submission gives them good grounds to follow Judge Agnew if they wish and may give you good grounds to appeal to the upper tribunal if they choose not to and your appeal is unsuccessful as a result.

Comments  

#31 Lala 2020-12-09 00:01
Quoting Samantha Simpson:
I have just had my appeal hearing and the decision was not what I expected,after being turned down for both daily care and mobility I only received the standard rate of care and refused mobility. I suffer from bpd,depression anxiety and now fibromyalgia and have medical evidence to prove this. I was only given 9 points for care and 4 points for mobility. I am unable to leave my home without having another person with me but the appeal hasn’t even taken this into consideration. I am distraught and confused at this final decision and don’t know what the next move if any there is for me to do. Any help would be greatly appreciated. Tia xx


Like Samantha above i would like to know where you go after appeal tribunal if the decision goes against you. can you take it further or do you just enter another claim. also do you have to wait some months to claim again or can you do it straight away. Any info would be welcome.
#30 janwithers16 2020-07-25 19:47
Quoting Jim Allison:
Quoting Donna Blenkinsop:
Hi just received my mandatory reconsideration today ,kind of good news ,I used to get enhanced rate for both ,then after review was told I was awarded nothing for both ,so after MR I have been awarded enhanced care ,but only standard mobility. So now I am sitting wondering if it’s worth going to appeal as I really rely on the car to get me places and even to get me out the house .i am afraid I lose it all again .

Quoting Donna Blenkinsop:
Hi just received my mandatory reconsideration today ,kind of good news ,I used to get enhanced rate for both ,then after review was told I was awarded nothing for both ,so after MR I have been awarded enhanced care ,but only standard mobility. So now I am sitting wondering if it’s worth going to appeal as I really rely on the car to get me places and even to get me out the house .i am afraid I lose it all again .


From my experience, it claimants should always appeal if they think their award is too low. They have nothing to lose and everything to gain. I used to be the Disability Specialist on Tribunals, but am now retired at 78 years old but still help with claims for DLA, PIP and Attendance Allowance, such as helping to complete claim forms and to sit in on home medical assessments.

The rate of success in DLA and PIP have risen to the 70% mark, this information is received from HMCTS who email me the details.

Jim Allison
retired Welfare Rights Lawyer
#29 JR 2019-07-27 11:05
How to record in a MR that the HP lied and failed to add information?
#28 Jim Allison 2019-06-22 11:30
Quoting Donna Blenkinsop:
Hi just received my mandatory reconsideration today ,kind of good news ,I used to get enhanced rate for both ,then after review was told I was awarded nothing for both ,so after MR I have been awarded enhanced care ,but only standard mobility. So now I am sitting wondering if it’s worth going to appeal as I really rely on the car to get me places and even to get me out the house .i am afraid I lose it all again .

Quoting Donna Blenkinsop:
Hi just received my mandatory reconsideration today ,kind of good news ,I used to get enhanced rate for both ,then after review was told I was awarded nothing for both ,so after MR I have been awarded enhanced care ,but only standard mobility. So now I am sitting wondering if it’s worth going to appeal as I really rely on the car to get me places and even to get me out the house .i am afraid I lose it all again .


From my experience, it claimants should always appeal if they think their award is too low. They have nothing to lose and everything to gain. I used to be the Disability Specialist on Tribunals, but am now retired at 78 years old but still help with claims for DLA, PIP and Attendance Allowance, such as helping to complete claim forms and to sit in on home medical assessments.

The rate of success in DLA and PIP have risen to the 70% mark, this information is received from HMCTS who email me the details.

Jim Allison
retired Welfare Rights Lawyer
+1 #27 Jim Allison 2019-06-22 11:16
[Just an afterthought on Tribunals. They have the power to disregard the DWP's decision in favour of the appellant. Tribunals are free to follow their own views of Commissioners Decisions, now called Tribunal Judges.

Also, the good news is on information I've received from a former colleague (Tribunal Judge) that appeals fo DLA to PIP are now hovering around the 75% success mark, thus proving that many Decision Makers aka Case Managers are getting it wrong.

Good luck to all those awaiting DWP decision or Tribunal Decisions.
If possible try to attend your appeal in person, it certainly makes it easier for the Tribunal to reach a favourable decision.
Also, the good news is on information I've received from a former colleague (Tribunal Judge) that appeals for PIP are now hovering around the 65% success mark, thus proving that many Decision Makers aka Case Managers are getting it wrong.


Good luck to all those awaiting DWP decision or Tribunal Decisions.
If possible try to attend your appeal in person, it certainly makes it easier for the Tribunal to reach a favourable decision. :lol:
+1 #26 Donna Blenkinsop 2019-06-21 16:42
Hi just received my mandatory reconsideration today ,kind of good news ,I used to get enhanced rate for both ,then after review was told I was awarded nothing for both ,so after MR I have been awarded enhanced care ,but only standard mobility. So now I am sitting wondering if it’s worth going to appeal as I really rely on the car to get me places and even to get me out the house .i am afraid I lose it all again .
+1 #25 Samantha Simpson 2018-04-08 16:14
I have just had my appeal hearing and the decision was not what I expected,after being turned down for both daily care and mobility I only received the standard rate of care and refused mobility. I suffer from bpd,depression anxiety and now fibromyalgia and have medical evidence to prove this. I was only given 9 points for care and 4 points for mobility. I am unable to leave my home without having another person with me but the appeal hasn’t even taken this into consideration. I am distraught and confused at this final decision and don’t know what the next move if any there is for me to do. Any help would be greatly appreciated. Tia xx
#24 Jim Allison 2018-02-23 13:12
Hi Mary Ann Todd Johnson, I hope what I write is of some help.The Decision Maker or Case Manager will not be able to take account of your severe road traffic accident, they can only make a decision on what you wrote if you made a claim for PIP.

My advice is to obtain the latest medical evidence on your claim from the hospital where you were treated. If the hospital is close bye you can arrange to access your medical records under the Data Protection Act.

If not close by, your GP will have had letters from the hospital that treated you for your road traffic collision, you can ask your GP for copies of letters that he or she has been sent. or write to the hospital that treated you and ask them for copies of all relevant letters/reports relevant that were sent to your GP. Again, you are legally entitled to copies. Each time I attend hospital, I ask the Consultant, and I'm currently seeing four, I always ask for copies of letters of consultations at out patient appointments.

In my opinion, and I'm sure other knowledgeable members will agree, that your unfortunate road traffic collision and the extra disability it has caused can only help any claim for PIP.

I hope this information is of some help.

Jim Allison retired Welfare Rights Specialist, Moderator and DLA Tribunal Member.
+2 #23 Mary Ann Todd Watson 2018-02-22 22:04
Hi, I just want to ask a question. I was away for my birthday in December and although I returned to my home before leaving for Christmas, there was no letter from DWP about my DLA or changing over to PIP. Whilst on holiday, I was involved in a car crash where my reponsibility is not in cause. In the dark with car lights and warning lights flashing, it was icy, the car behind me hit me and pushed me into the car in front, but not too badly. I got out of my right hand drive car (in France - therefore on to the bank of grass out of danger) and a scooter had not really understood what was happening, cut between me and my car, driving over my feet as I fell backwards to the ground. People were very kind, I was taken to hospital by ambulance two broken bones and a torn ligament. Plaster on both feet and traction in bed for a slipped disc. So My ten day stay turned into a five week hospital stay. I arrive back home, needing surgery on my back, barely walking to find that during my absence, the DLA has been stopped completely and a nasty letter telling me that if I do not apply immediately for PIP I will not be able to apply. Of course I phoned both immediately. DLA - it is not our problem, you should have answered in time.... PIP, you should have applied in December but we will send out the form. I have had DLA for about ten years because of a laundry list of diseases, one extremely rare and others including Lupus and Panhypopituitar y Syndrome etc. What can I do to prove that my absence was not a holiday and that I was not absent on purpose? I am now housebound as I can not walk anywhere before this accident, let alone now I can barely stand. Will I be able to go to a Face to face? I am totally distraught tonight, like never in my life. My bills have not been paid because of lack of income and now I have financial problems. Is bankruptcy the only way forward, just because they stopped my DLA?
#22 Jim Allison 2017-12-28 22:24
I disagree, although more claimants of DLA /PIP is down the number of appeals has risen to around 65% according to figures passed to me.

Jim
Former Welfare Rights Special, DLA Tribunal Member 1992-2005
One of the original Moderators of Benefits & Work
+4 #21 lulu 2017-12-28 18:20
hi im new here im after advice ive had my mobility part of pip stopped they said even though im on tramadol and codeine 8 of each a day im still in pain but they said i can walk 20 meters with stick so i dont need mobility can anybody advice please ive had manadtory reply it was same im in pain all the time i have worked as carer 25 years which is why my health is bad now i have spongelosis of the spine arthrities and planterfisiliti es in both feet also ptsd anxiety and depression
+2 #20 Jim Allison 2017-06-21 18:08
Just an afterthought on Tribunals. They have the power to disregard the
DWP's decision in favour of the appellant. Tribunals are free to follow their own views of Commissioners Decisions, now called Tribunal Judges.

Also, the good news is on information I've received from a former colleague (Tribunal Judge) that appeals for PIP are now hovering around the 65% success mark, thus proving that many Decision Makers aka Case Managers are getting it wrong.

Good luck to all those awaiting DWP decision or Tribunal Decisions.
If possible try to attend your appeal in person, it certainly makes it easier for the Tribunal to reach a favourable decision. :lol:
+4 #19 Jim Allison 2017-06-21 17:49
Hi Steve & All,

I can understand the CAB had 'no comment' to make on the DWP's
comments. I recently applied as a volunteer to do 2 x4 hour sessions a week and went for an interview. I felt I had a good interview, however I was wrong, the Chair of the local CAB rang me the evening I had the interview and said he felt that I won't be able to cope with their training sessions. I am a qualified Welfare Officer and worked for Steve here for many years as a Moderator. I have a BSc and an MA in Social Welfare Law. I also I sat on DLA & AA Tribunals for over 10 years.

In my opinion most CAB's are taking on unqualified staff with little or no training so how can they compete with the DWP who has their own legal team standing by. The ironical part is that I trained CAB staff and was Chairman of our local branch for over 5 years, before I left to work as Principal Housing Aid Officer for Wigan MBC. Housing Aid covered benefits, debt counselling and homelessness.

In my opinion the CAB are like DRUK all mouth and no action :cry:
+2 #18 Snowy Owl 2017-06-21 13:38
I have just sent my PIP appeal form off to apply for a face to face hearing. It gives me hope hearing about other claimants and also it makes me realise just how lucky I am as there are lots of people much worse off than me, I am going to fight like made as since being awarded DLA for care in 2004 I have not met with Jesus and found a cure!! I do not know how some of these people that are working for the government can sleep at night. Welfare rights in Trafford were good but I am very capable of doing the claim myself despite the tender age of 67 . I do not need the money really, but I believe in justice and this country has forgotten how to treat it's own people. We should stop foreign aid to countries Like North Korea and other countries that have nuclear bomb programmes. Gosh what a mess this government have got us in and all the front benchers are multi millionairs. Shame on them. Snowy Owl.
+4 #17 Melanie Ellis 2017-01-28 14:35
Hello! I just wanted to give some hope to people claiming standard mobility due to mental health. In particular the planning and following of a journey.
I had my PIP reviewed and they took away my standard mobility, after a mandatory reconsideration upholding the decision I appealed.
After reading up on the arguments of the meaning of the descriptor i didn't hold much hope of having it reinstated.
Well i was wrong! Today i received notice that my appeal was heard and the decision was set aside and i am indeed entitled to standard rate mobility qualifying descriptor 1.e. I have Bipolar Disorder which has varying affects on my state of mind. I argued that having another person with me should qualify as an aid and asked them to favour Judge Agnew's decision when applying the descriptor. This coupled with a very concise GP letter using the DWP's own wording to apply the various descriptors to myself has resulted in a small victory for myself!
Don't be disheartened DWP will try every trick in the book to delay/stop entitlements. I know its tough battling a decision but I'm so proud that i did. Good luck!
+2 #16 Jim Allison 2017-01-10 20:37
Quote:


I advise you to call Motability Operations on 0300 456 4566 I have read in Lifestyle that they are planning to allow those with standard mobility component to use the Motability scheme very soon. This is down to the Motor Manufacturers concern, as over 160,000 vehicles have to date had to be returned to Motability
SNP MP Corri Wilson has called on the UK Government to clarify whether a mobility car scheme for people with disabilities is to be extended after a Department for Work and Pensions Minister announced the move during a Westminster debate but has since left claimants waiting weeks for more information. More here :
http://www.welfareweekly.com/call-for-clarity-on-motability-car-scheme-for-disabled-people/
+3 #15 Daveed 2017-01-10 10:34
I received my pip award several days ago. I was previously on Dla for 5 years high care, low mobility. I was invited to change over as my Dla was ending in 4. Months.i received 13 for daily living and 8 for mobility. I suffer both mental health and physical disabilitys.i have epilepsy, c.o.p.d and severe agraphobia. I received 4 points for moving around and 4points for planning and following a journey ( you need prompting from another person to undertake a journey to avoid causing you mental distress). I received 2 points for mixing with other people , ( you need prompting or assistance from another person to engage with others).i had my assessment
at home as my doctor explained I rarely left the house and this has caused me to miss appointments from him and also my neurosurgeon . The Hp who attended was vey understanding and listened to what I had to say. She stated she was a nurse. Although I was awarded the same awards as my Dla claim . I feel she had little knowledge of mental health issues. And I should've been awarded more points for planning and following journeys, mixing with other people. Is it worth asking for a mandatory consideration. Please I would welcome any feed back . In march2016 I was awarded Esa (support group) I got 9 points for going about 15b unable to get to a specified place which is familiar without being accompanied by another person. Coping with social engagement 16c. Cannot engage with someone unfamiliar for the majority of the time due to difficulty in relating to others or significant distress experienced by the individual .6points.
+2 #14 Jim Allison 2017-01-09 09:59
Quoting Greg Jones:
I received my PIP assessment this morning and have been given a score of 10/12 for the "Moving Around" component, but 0/12 for the Planning and following journeys" component; this means that in 5 weeks, I will lose my vehicle.


I advise you to call Motability Operations on 0300 456 4566 I have read in Lifestyle that they are planning to allow those with standard mobility component to use the Motability scheme very soon. This is down to the Motor Manufacturers concern, as over 160,000 vehicles have to date had to be returned to Motability.
+6 #13 Janet 2017-01-08 18:52
My daughter as just had her PIP assessment, and the out
come is she has received care at the standard rate, and just 4 points for the mobility component so will loose her mobility car, if she had received the standard rate it would not have been so bad, but to have received nothing is unbelievable, as she as been receiving enhanced rate of DLA for the past 5 years.
We cannot understand how this can be her Fibromyalgia is no better in fact it is far worse. But the assessor says she can walk 50 meters but no more than 200 meters, if only she could. She is 43 years of age and as to use a 4 wheeled walking frame to help her and keep safe because of falls, and never goes out without another person, but they proffess to even know better than our GP.
+8 #12 paul flight 2016-11-24 11:54
my wife has emphysema and is bed ridden on oxygen 24x7,she now only weighs six stone.she was assessed by an idiot who awarded only 4 points for cooking. That four points cost her about £100 a month,how can she even with help cook a meal from bed. She would be at risk going anywhere near our gas cooker using oxygen.as the dwp agreed with his mad assessment I am waiting for a appeal decision. how can an un qualified people assess the needs of the really ill he is saying that her doctor and consultant are wrong. And this so called health care professional did not know that the tablets foe depression and anxiety are the same. Twice I asked him what his qualifications were and twice he held up his id card that said benefits benefits Asser..what's gone wrong with this country my wife is dying a slow horrible death and cant get what she is entitled to

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