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.
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.
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.
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.
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.”
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.