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Tens of thousands of DLA to PIP lower rate mobility claimants could lose due to new decision

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  

#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
+4 #11 Greg Jones 2016-07-01 00:21
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. The phrase "orientation aid" is perplexing, for I do need to use one for most journeys, be; that aid is called a SATNAV. This "planning and following journeys" seems designed to discount 90% of disabled persons from the higher rate, which should be unconscionable. I can walk about 20 metres before severe pain is experienced, with the use of a stick. I rely on my car to get about owing to the fact that the bus stop is 500 metres or so from my home and the nearest "corner shop" is 400 metres or so, but both may as well be on the moon as far as I am concerned; my car is essential. How is the phrase "How your disability affects you" in line with such results? Surely the question should be "What level of support is needed to enable a normal life?". When my vehicle goes, I will become housebound and will be unable to take a scooter further than its normal range, for I am unable to get a scooter onto the local buses. There is a mandatory re-assessment on the way, but I am told that this will take 9-15 weeks to complete and the Motability scheme has no extensions (other than a 3 week transitory one), so my vehicle will be gone well before the re-assessment is complete. It is down to semantics and what is meant by an orientation aid. Good luck to the rest of you, but my gut says that there will be half a million more 2nd hand cars on garage forecourts very shortly, half a million more very unhappy voters, vehicle retailers losing a lucrative avenue of income from Motability and many other aspects which I have not begun to imagine awaiting government. I do not know what I will do!
#10 Crazydiamond 2015-10-15 13:29
Quoting Jim Allison:
The benefits system for DLA and PIP is in crisis, because the DWP are moving staff to work on DLA/PIP with little or no training.


Unfortunately for claimants Jim, the same can be said about Universal Credit (UC). DWP officers have regularly contended that they have received little or no training with the implementation and administration of UC. Given that Iain Duncan Smith has decided that by miraculously rolling six means-tested benefits into one single benefit is suddenly going to work, then he really is living in cloud cuckoo land.

It takes five years to become proficient with a single benefit, so how he thinks that DWP staff are going to be experts with six entirely separate benefits all with different qualifying conditions within UC is anybody's guess? Furthermore, if IDS believes that UC is going to rely on massive online input from claimants, this will only be a recipe for disaster.

It comes as no surprise that UC is way behind schedule, and I stand by my prediction that it is never going to work. This in my view is the failed pipe dream of an incompetent Secretary of State, who is only still in post because other ministers think that UC is a poisioned chalice, hence none of them would want to take responsibility for something which so far and counting, has been a very expensive, unmitigated disaster.
#9 Jim Allison 2015-10-15 11:23
I tend to agree with the points raised by Crazydiamond in comment #7 He's a former Social Security officer who was a Adjudication Officer for DHSS & DSS now called Decision Makers or sometimes Case Managers.

The benefits system for DLA and PIP is in crisis, because the DWP are moving staff to work on DLA/PIP with little or no training.

The problem is compounded by the use of nurses, physiotherapist s, and occupational therapists, rather than use more qualified doctors of medicine to carry out 'medical assessment'
#8 John 2015-10-14 12:45
spoke to adjudicator and said that what the medical person was a lie, and were these people medically trained. the adjudicator said they were trained and they are held in great regard. My reply was so you believe them more than my physiciatrist who has years of experience
+2 #7 Crazydiamond 2015-08-01 19:47
The argument put forward by the Secretary of State before Sir Crispin Agnew of Lochnaw BT QC, is not dissimilar to a previous Commissioner's Decision:-

www.rightsnet.org.uk/pdfs/cmmr_upload/cdla/cdla04294.doc

The SoS at paragaph six of the above decision opposes the appeal to the Commisioner on the grounds that "It is my submission that the law for the lower rate of the mobility component was intended to benefit the blind or mentally impaired (or in certain circumstances the deaf)." However Commissioner Mesher (as he was then) inter alia, rejected this argument.

Therefore, the decision of Commissioner Mesher would appear to give more force to the decision of UT Judge Agnew of Lochnaw BT QC, rather than that of UT Judge Jacobs, and it follows that in a PIP appeal, reference may be made to preferring the former decision as opposed to the latter until a tribunal of three UT judges eventually give a firm ruling to resolve the discrepancies
+2 #6 angela 2015-07-31 10:52
I think we all know now that the way things are going benefits are going to be a thing of the past if this goverment gets it way it will become impossible to claim anything
+2 #5 naheegan 2015-07-30 00:46
Quoting carmind:
I suppose the only way this can be sorted out is by another Upper Tribunal appeal. Or by a Judicial Review? Is Benefits and Work up for that??


That is certainly uppermost on my mind; there really needs to be united judicial clarity on this point -it does no one any service to have two different interpretations of the same assessment criteria. Especially claimants trying to fill out an ESA50. But who will take this to a level where it is properly addressed and settled.

Another thing on my mind is the Memorandum to the Welfare Reform Act 2012. There is a recurring phrase throughout that is contained in most clauses that gives the Secretary of State power to amend many things, as and when he chooses. These include changing the benefit cap, using a different calculation for benefit caps -it no longer has to be in relation to average earnings, eliminating the WRAg entirely, and of course, this discretion also applies to other controversial changes to benefit, child poverty definition, MI payments, and so on. My concern here is that this completely sidesteps and negates any debate, discussion, or vote on further changes to the Act -in effect no parliamentary process is needed to implement future changes.

I think claimants are in for a very rough ride and a very uncertain future. That's a good reason to be a member here.
+2 #4 carmind 2015-07-29 20:23
I suppose the only way this can be sorted out is by another Upper Tribunal appeal. Or by a Judicial Review? Is Benefits and Work up for that??
+2 #3 AL 2015-07-29 20:12
Quoting naheegan:
Surely the use of the phrase 'orientation aid' in Mobilising activity 1 is specific to those claimants who have difficulty in orientating themselves to maps, directions or have difficulties in communicating to other people their need for help due to MH problems- as in asking strangers, rail station staff etc for help in understanding how to get from place to place. All of this seems to be semantics, it either is or isn't inclusive of MH difficulties, but of course, it cannot be both.

Because of the fact that the amount of qualifying Mobility points are given only to
12 e. Can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided (12 points) and
12 f. Cannot, either aided or unaided, –(i) stand; or (ii) move more than 1 metre (12 points),
it excludes the very claimants who qualified under the old DLA mobility qualifiers --those who are assessed as 12 d. Can stand and then move using an aid or appliance more than 20 metres but no more than 50 metres (10 points). This is merely a case of moving the goalposts in terms of physical mobility, and a further case of moving the goalposts yet again to exclude those with MH disabilities from qualifying for higher rate PIP.

I can only conclude that disability benefits will eventually become available to only those in hospital with comas or full body casts, and then only if they are not sanctioned for not attending a WFI! This is surely another step in whittling disability benefits down to almost non-existent.

Absolutely spot on, so very well written .. Well done
+3 #2 candytuft 2015-07-29 18:14
MY DAUGHTER IS PRESENTLY IN THIS LEGAL QUAGMIRE, AWAITING
A "DECISION". ON PIP. IF A PERSON GETS 12 POINTS NEEDING ASSIST TO MAKE A FAMILIAR JOURNEY, AND 10 TO COPE WITH AN UNFAMILIAR ONE, THAT INDICATES TO ME THE WHOLE CONCEPT OF THE DESCRIPTORS EMPLOYED IS POTENTIALLY FLAWED, GIVEN THE SUPPOSED LOGIC BEHIND THAT POINTS ALLOCATION IS BEYOND COMPREHENSION AND SUGGESTS THE WHOLE LOT SHOULD BE SCRAPPED AND A PROPER SET, BASED ON COMMON SENSE RE THE MENTALLY RESTRICTED, BE INTRODUCED WITH HELP FROM PROPERLY QUALIFIED PERSONNEL, AND I EXCLUDE THE "STANDARD ISSUE PHYSIOTHERAPIST " IN THAT REMARK.

AN APPREHENSIVE PARENT
+4 #1 naheegan 2015-07-29 11:51
Surely the use of the phrase 'orientation aid' in Mobilising activity 1 is specific to those claimants who have difficulty in orientating themselves to maps, directions or have difficulties in communicating to other people their need for help due to MH problems- as in asking strangers, rail station staff etc for help in understanding how to get from place to place. All of this seems to be semantics, it either is or isn't inclusive of MH difficulties, but of course, it cannot be both.

Because of the fact that the amount of qualifying Mobility points are given only to
12 e. Can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided (12 points) and
12 f. Cannot, either aided or unaided, –(i) stand; or (ii) move more than 1 metre (12 points),
it excludes the very claimants who qualified under the old DLA mobility qualifiers --those who are assessed as 12 d. Can stand and then move using an aid or appliance more than 20 metres but no more than 50 metres (10 points). This is merely a case of moving the goalposts in terms of physical mobility, and a further case of moving the goalposts yet again to exclude those with MH disabilities from qualifying for higher rate PIP.

I can only conclude that disability benefits will eventually become available to only those in hospital with comas or full body casts, and then only if they are not sanctioned for not attending a WFI! This is surely another step in whittling disability benefits down to almost non-existent.

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