PIP mobility on mental health grounds

Hi all,

I have just written off for Permission to Appeal on this precise descriptor 11(d).

Besides the obvious submission of cognitive impairment requirement is not in the language of the descriptor or the interpretations of the regulations, I used the guidance for assessments to add an extra submission.

The guidance speaks of cognitive impairment encompassing attention, concentration, memory and orientation. 
And the activity needs to be considered when the cognitive impairment prevents a claimant from working out where to go, follow direction or deal with unexpected changes.

So someone with anxiety, who when confronted with an unexpected change would be unable to focus or concentrate on the journey, would be seen to have cognitive impairment.

Plus the final line on the guidance of this descriptor is that it is unlikely to apply to mental or behavioural disorders, not that it will never apply, or only applies to cognitive impairments, therefore there will be situations where it is likely to apply.

Curses… you beat me to it. I’m still waiting for the SOR on mine!

It looks as though Judge Jacobs has ruled that ‘following’ is limited to navigating, in substance endorsing the DWP guidance that anxiety is relevant only to ‘undertaking’ the journey:

http://www.osscsc.gov.uk/Aspx/view.aspx?id=4573

If followed this effectively means that the mobility component is abolished for nearly all mental health problems with no consultation at all.

And, more happily, before the ink was dry on Judge Jacobs’ case, here is an entirely conflicting decision on the same point by Sir Crispin Agnew:

http://www.osscsc.gov.uk/Aspx/view.aspx?id=4583

Oh thank goodness for that! I have an ongoing case that could easily hang on this point.

Summary of favourable CSPIP/109/2015 now up - http://www.rightsnet.org.uk/welfare-rights/caselaw/item/a-person-who-cannot-leave-the-house-alone-due-to-anxiety-cannot-follow-the

and also unfavourable UK/622/2015 - http://www.rightsnet.org.uk/welfare-rights/caselaw/item/following-a-route-does-not-include-coping-with-difficulties-that-arise-alon

I’ve got 3 PIP renewal cases at Mandatory Recon stage at the moment regarding these issues re: PIP and mobility component for mental health issues.

For 2 claimants I did their first claims (in the very early days of PIP) and both got Enhanced rate Mobility on descriptor 11F (12 points)  - for “Cannot follow the route of a familiar journey without another person….”

Both have now been refused as only awarded 4 points (for descriptor 11b) despite nothing having changed.

A 3rd claimant who got ER Mobility in her first claim as she got 8 points for physical mobility problems and 4 for 11b for MH problems lost the 4 points for 11b on renewal claim (again I did first claim and nothing had changed).

All 3 have Motability cars. Does anyone know what happens with Motability whilst the mandatory recon Is in? I presume they will lose the car?

Thanks

I’ve had tribunals awarded 11d and 11f on the grounds of anxiety preventing the person getting to unfamiliar and familir places.

In the first, an SOR was requested and the judge (who is a district chair) awarded 11d and the reasons given read like a DLA decision. The DWP are out of time to challenge the decision.

On the second, I am awaiting a SOR request as we are finding any award at tribunal for PIP prompts a SOR request.

Updated PIP assessment guide (updated on 28 July 2015) - https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/449043/pip-assessment-guide.pdf - says under 11d and 11f (pages 117 and 119) -

Any accompanying person should be actively navigating for the
descriptor to apply. If the accompanying person is present for any
other purpose then this descriptor will not apply.

Seems like the DWP have gone with Judge Jacobs rather than Sir Crispin Agnew - surprise, surprise…

Only guidance of course but means mental health cases are likely to have to go to tribunal

There is also this bit that has been added in twisting the ‘majority of the time’ regs:

For example, consider a claimant who manages to walk 5 minutes by herself to collect her child from school each weekday, despite her anxiety. She doesn’t need any support or assistance to do this, but does not leave the house on any other occasion without someone else with her. She is able to make a single journey 5 days a week without prompting, so would satisfy mobility 1a.

Was wondering if anyone had come up with a good argument as to why a tribunal should follow the favourable case and not the unfavourable one?  I am struggling to articulate something in a way that I find convincing! 

I intend to argue that Judge Agnew’s analysis of the descriptor as a whole is more cogent, structured, holistic and complete than Judge Jacob’s analysis, particularly at para’ 12 where he says the following:

“There is, with the exception of Activity 11e (as noted above) a logical progression in the Activities. If a claimant can “plan and follow” a route there are no points; if the claimant can plan and follow the route, but needs prompting to go out and follow it, then it is 4 points. The next stage requires someone else to plan the route for the claimant, who must then be able to follow that plan alone and hence gets 8 points. The next stage is the person who cannot follow an unfamiliar route without another person etc, so the activity gets to the stage where outside assistance is needed in order to be able to follow the route and thus qualifies for 10 points”.

I think the problem with the Agnew decision is going to be “with the exception of Activity 11e”. For me you have to analyse the descriptor as a whole and can’t just ignore an activity in order to achieve a ‘logical progression’.

For me if you look at the descriptor as a whole, including 11b+e, then Judge Agnew’s approach appears the less logical as it makes those activities completely redundant. Somebody who satisfies either of the activities (including 11b as this refers to any journey and the natural reading is that the ‘prompting’ is required during the journey) will also satisfy 11f.

Judge Agnew states that the situation where somebody housebound by mental health problems scores less points than someone with VI/learning disability who is able to get to familiar locations with assistance as “extraordinary”. I’m not so sure if I would agree - for years it has been the case with DLA that somebody housebound by anxiety would only receive LRM whilst somebody with physical problems could receive HRM, even if they did not need any actual help from another person to make a journey.

That is just my opinion though. In terms of what I’ll be doing for clients if this issue comes up obviously I’d be doing the simple thing of inviting the tribunal to follow the Agnew decision and hoping that they disagree with my personal analysis.

In terms of more specific argument I think that there is scope in the Jacobs approach to argue that somebody who gets so distressed that they actually lose the ability to navigate can meet 1d and score 10 points. He concentrates on navigation and on the phrase “following a route” and states that help needed to get back on a route (for example assistance asking for directions) cannot enable a claimant to meet 1d and neither can help needed to “undertake” a route that the claimant is secure with in terms of navigation. I would argue that somebody who becomes so anxious/distressed/preoccupied by hallucinations/intrusive thoughts etc that they are unable to navigate and who as a result find themselves lost or at least unable to continue without becoming lost is failing to follow a route in the sense that Judge Jacobs is talking. However I don’t think that this argument can be used for 1f as you don’t need to ‘navigate’ in the sense that Jacobs is talking on familiar journeys. I disagree with the example he uses of a familiar journey being disrupted by accident/roadworks - at this point the journey becomes an unfamiliar one. I mentioned the historical context of DLA above - this argument has the strength that it would mean that the old DLA situation (people needing help to get to unfamiliar locations get LRM) is maintained. It is also not in conflict with the basic conclusion of the decision which refers to “dealing with personal interactions along the route” and not to an inability to navigate due to distress.

All 3 have Motability cars. Does anyone know what happens with Motability whilst the mandatory recon Is in? I presume they will lose the car?

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They do lose the car but in some circumstances Motability can provide a transitional fund to help pay for a replacement

SamW - 05 August 2015 07:43 PM

 

In terms of what I’ll be doing for clients if this issue comes up obviously I’d be doing the simple thing of inviting the tribunal to follow the Agnew decision and hoping that they disagree with my personal analysis.

 

 

I’ve done two since this situation arose and unfortunately it looks like the broader Judiciary agree with your analysis…