Mobility question 13

Hi I,
This is quite a complicated area of law!
Under Mobility 1 the leading case is MH v SSWP 2016. Because this was a tricky problem, unusually the Upper Tribunal satc with 3 judges. Descriptors 1b and 1e refer to problems caused by overwhelming psychological distress. 1d and 1f do not. Whilst this may seem obvious DWP are not minded to accept that the fact that there are points to be scored without requiring OPD. (The MH decision led to DWP passing a new law to amend Descriptors 1c,d and f, which was later deemed unlawful. DWP have therefore always struggled with this concept!)
So, there are two scenarios. Firstly does your son genuinely get OPD if going out somewhere? This would be anxiety that means normal thought and function is just consumed by a big panic, and there doesn't seem anyway out if it. Can also be physical symptoms such as shaking vomiting, heart race etc. If so, then he could correctly get 10 points. I am presuming that this is via 1d ie on the basis of need to be accompanied on unfamiliar journeys. Hence DWP is clearly thinking your son only has problems in unfamiliar places. (This tends to suggest that DWP accept the need for help then!!)
Or if DWP award 10 points via 1e, then they have accepted the OPD, which isn't reflected in the comments you make.
Hence if DWP accept help is required 1d, to gain more points you simply need to show that ALL journeys require the same help!
Even if your son does and occasional journey in his own this will not matter as DWP are required to consider the 'majority of days' (Reg. 7) Also, every PIP activity has to be done safely, to an acceptable standard, repeatedly and within a reasonable time. I'm not sure from what you say whether or not your son could actually change his soiled clothing without help, or it us just difficult but he could do it. Clearly it is not acceptable for a person to wander around in soiled clothing, it is unhygienic and potentially could lead to chafing etc. If your son can't change his clothes or is very slow, then it is reasonable for him to require help. That of course means the 'help' needs to always be with him. Your son may not be safe either- if he would get upset, wander off to find a toilet, get lost etc, fall over....
So there does seem to be possibilities to score points under 1f.
Your son"s falls may also render him 'unsafe' under Mobility 2. Remember the 4 criteria set out above will also apply here. Additionally severe discomfort needs to be taking into account. Any walking with SD must be excluded.Normally this includes breathlessness, pain, fatigue but there us no reason why chafing from soiked underwear could not comprise this, if it caused severe discomfort. I have a vague recollection that there was a case about this point for DLA, and if I am correct there is no reason why it shouldn't still be good law for PIP.)
Ok, so I have offered a few suggestions how you can look for further mobility points. If you which to take matters further you will need to fill outcan SSCS1 form and apply to the tribunal. There is a small risk of losing your current award but the tribunal would have to give a warning first.
If your son had at least Mid Rate Care and High Mobility DLA, this clearly indicates substantial disability. Whilst DLA and PIP sometimes do not fully match up, the tribunal would need to consider the previous DLA award and fully explain why the PIP award is not comparable. This means that if it is possible to match PIP points to equate with the DLA award it should be done. Whether or not that means your son is actually eligible for an enhanced rate of either or both PIP components will have to be examined by the tribunal.
Have a look at the members guides if you have not done so already.
Check here
www.benefitsandwork.co.uk/personal-independence-payment-pip-2
Make sure you include all the details of the DLA award with the SSCS1 if you do wish to appeal.
Good luck. I hope this helps.
LL26

Hi I,
Thanks for the further information.
You mention that your son misses his stop because he is too slow at walking. Perhaps you should speak to/make a complaint to the bus company as this is unacceptable. This would amount to discrimination of a disabled person, which is of course prohibited by law. I find it quite shocking that the bus driver would ignore a disabled person in this way, and clearly this also suggests that the easy access seat near the exit is not being made available either.
Certainly being too slow walking off the bus indicates significant problems with mobility, which could be very good evidence for any appeal. Remember that points for actual walking also require being able to stand and then move...the whole action has to be done safely and in a reasonable time etc. If the problem missing stops is due to not being able to stand quickly this is also relevant.
A few more points that may assist. Obviously by using the bus, your son is accompanied on the journey, this is more apparent if it is in fact the same bus driver all the time or one or two on rotation.
I am getting more of the sense that your son's problems going on transport is due to a fear of people rather than a fear of journeying itself. This may indicate points/more points fir engaging with others.
Aside from needing help changing soiked clothing, does your son need incontinence pads, even if he doesn't actually wear them? This would comprise 2 pts under 5b. If you can show physical help with toilet needs then more points could be available for this activity. (Remember Reg7 requires the highest points to be awarded where more than one activity applies in any one descriptor section.)
Now think about why your son doesn't need help most of the time with managing soiled clothing when out and about. You say that thus doesn't occur as son doesn't go out often! So effectively he avoids the problem by altering his day! Avoidance indicates the need for help. Pip points should be awarded if it is reasonable for you to require help, even if you don't actually get it.
So, DWP reckon his upper body strength (if indeed your son really does have this) means he can change soiled clothing.on that basis why doesn't he do it himself then! Whilst some people are inherently lazy, I have never yet found someone who prefers to have someone else clean them after incontinence as a result of laziness. It is embarrassing to have to be cleaned by someone else, so you only get help if you really can't do it yourself! Also, cleaning oneself has little to do with strength, this activity requires the ability to bend and twist. You could no doubt explain further how your son"s poor mobility causes this problem, and that his intelligence plays no part either.
Physical problems can comprise the need to be accompanied, and can give rise to OPD. The aftermath of soiling oneself and coping with it, is plausible as a cause for this.
Don't worry that DWP have boldly stated that your son doesn't have problems that he clearly has. Explain everything you have stated here, using the suggestions I have made as a framework. Evidence from the ECHP would also be really good. Before you write into DWP, have a good think about how your son approaches the PIP activities, or why these are avoided. What can't he do, why, what helps does he need, even if he can do the activity, is he safe, dies he do it acceptably, within reasonable time, repeatedly. Dont be scared to announce what points score he shiukd get, remembering Regulation 7- highest value should prevail. Where you do agree with DWP you can say so.
Hopefully this will permit a successful MR or subsequent appeal if required
Good luck.
LL26