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Moving around

CDV Adviser
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My client suffers from quadriplegic athetoid cerebral palsy. She can walk a few metres if she is supported but otherwise uses an electric wheelchair. She has severe balance issues and will fall if she tries to walk alone. She has been awarded 10 points for moving around as the DM decided she can move more than 20 mtrs after being observed to walk 6 mtrs with the help of her mother. The decision states “the activity of moving around considers your physical ability to move around without severe discomfort such as breathlessness, pain or fatigue at a very slow pace of up to 40 metres per minute”. Given the guidance states that to complete the activity reliably, the claimant must complete it in a reasonable time period (no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity), where does 40 mtrs a minute come into it? She is also in constant pain which appears to have been ignored. She told the HCP that she can walk for a couple of minutes before she needs to rest for 5-10 minutes to recover. So by their calculation she can walk up to 80 metres.

The decision also states that as she can move around her house with the use of a frame and holding onto furniture she can walk at least 20 metres.

I’m absolutely gobsmacked. I’m about to compile the submission and was looking for the best way to argue the case. Any help much appreciated.

Benny Fitzpatrick
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The 40m per minute nonsense appears to be a cut & paste Job which has appeared in a couple of our recent sets of appeal papers. They seem to chance it no matter how implausible.

BC Welfare Rights
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I think that 40m p/m is likely to be half the average walking speed of 80m p/m. See Nevip’s post at http://www.rightsnet.org.uk/forums/viewthread/6962/ for walking speeds factsheet

[ Edited: 1 Feb 2017 at 05:29 pm by BC Welfare Rights ]
CDV Adviser
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Benny Fitzpatrick - 01 February 2017 04:04 PM

The 40m per minute nonsense appears to be a cut & paste Job which has appeared in a couple of our recent sets of appeal papers. They seem to chance it no matter how implausible.

I think the DM’s are under guidance from management to try these methods. When I worked in the JCP, the WC’s were under the same type of pressure to get people off bens or sanction them.

BSM
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If it’s of any help at all I think I’d focus strongly on the issue of pain, among other things.

UT Judge Markus, PS v SSWP [2016] UKUT 0326:

“15. The tribunal was wrong not to consider what the impact of pain was on the Appellant’s ability to mobilise the distance found to an acceptable standard.  The tribunal was not relieved of the requirement to consider the application of regulation 4(2A) simply because it, or any element of it, had not been mentioned in terms by the Appellant.  The provision was put in issue by the evidence.”

ClairemHodgson
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also google the condition and print the relevant authoritative medical descriptions to attach to your submissions; there’s some good stuff out there.

CDV Adviser
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Thank you for the help.

AlexJ
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Excerpt from a submission I did covering the issues of repeatability, reasonable time period, acceptable standard etc, may be of some use and references some case law:

4. We submit that the appellant satisfies descriptor 2(e). Although at times, we concede that the appellant may be able to mobilise in excess of 20 metres, we submit that she is unable to do so ‘within a reasonable time period’; she reports that it will always take her more than twice as long as an able-bodied person to walk a distance of 20 metres. It was noted in the health care professional’s report that the appellant walked ‘at a slow pace’ (page 57of the bundle).
5. Furthermore, the appellant reports that she suffers from severe pain and discomfort when mobilising, after just a few footsteps. We submit that this pain and discomfort is sufficiently severe for the appellant’s walking ability, at least on the occasions when she is able to mobilise in excess of 20 metres, to fall below the threshold of ‘an acceptable standard’ of mobilising, prescribed in regulation 4(2A) of the PIP regulations. It has been confirmed in several recent cases that pain is a factor when considering whether a claimant is able to carry out an activity to an acceptable standard:

Where a person is able to carry out an activity, pain is clearly a potentially relevant factor to the question whether he or she can do so to an acceptable standard (CPIP/665/2016; paragraph 11)

Matters such as pain, and its severity, and the frequency and nature, including extent, of any rests required by a claimant, are relevant to the question of whether a claimant can complete a mobility activity descriptor ‘to an acceptable standard’ (CPIP/2377/2015; paragraph 6)

6. We also submit that the manner of the appellant’s walking is relevant to the question of whether she is able to mobilise ‘to an acceptable standard’. She was observed to walk ‘with unsteady gait’ and we submit that this also poses the question of whether the appellant is able to mobilise ‘safely’ as she is clearly at risk of falls and injury.
7. We also submit that the appellant is unable to repeatedly mobilise more than 20 metres. It was held in CPIP/2054/2015 that ‘for a descriptor to apply, on a given day, then the inability to perform the task or function must be of some significance, that is to say something which is more than trifling or, put another way, something which has some tangible impact upon a claimant’s activity and functioning during a day but not more than that’ (paragraph 32). It was implied in this decision that this consideration is essentially part of the test of repeatability set out in regulations 4(2A) and (4). We submit that there is no evidence that the health care professional gave any consideration to the question of whether the appellant is able to repeatedly mobilise 20 metres; she was observed to walk a distance of reportedly 30 metres on just one occasion.

past caring
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Also am pretty sure there’s a recentish UT PIP decision (though it might be ESA) where, amongst other things, it’s said than a claimant’s statement that they can walk ‘a couple of minutes’ is not to be taken literally without further digging - i.e. ‘a couple of minutes’ might well mean ‘not very long at all’. But cannot remember or find the reference now…..

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AlexJ - 02 February 2017 12:19 PM

7. We also submit that the appellant is unable to repeatedly mobilise more than 20 metres. It was held in CPIP/2054/2015 that ‘for a descriptor to apply, on a given day, then the inability to perform the task or function must be of some significance, that is to say something which is more than trifling or, put another way, something which has some tangible impact upon a claimant’s activity and functioning during a day but not more than that’ (paragraph 32). It was implied in this decision that this consideration is essentially part of the test of repeatability set out in regulations 4(2A) and (4). We submit that there is no evidence that the health care professional gave any consideration to the question of whether the appellant is able to repeatedly mobilise 20 metres; she was observed to walk a distance of reportedly 30 metres on just one occasion.

Thank you for the help. I have hopefully covered most of it but this is definitely helpful.