Hopeless guestimates of distances/time

I’m sure everyone has done hearings where the client’s lack of precision regarding distance & time has caused problems (“I can walk for about 5 minutes” being the classic).

Is there any caselaw with guidance or words of warning from UT Judges to FTT on how to deal with this issue of most people having no clue when it comes to time/distance.

I’m sure I’ve seen some, somewhere, but cannot find it.

In paragraph 50 of CDLA/1389/1997 (*74/98) Commissioner Jacobs states that:

‘evidence of time and distance is notoriously unreliable however honest a witness is trying to be’

and refers to an earlier decision, CM/80/1988,where Commissioner Johnson, stated, at paragraph 5 that:

‘... I can I think perhaps fairly comment from my own forensic experience that most witnesses’ evidence of distance (and, for that matter, time) is notoriously unreliable ...’

I hope that this helps. 

All of this is sourced from Mark Perlic’s DLA and AA Case Law pack.

Thanks - that’ll probably be where I’ve seen it!

If you’re lucky, the tribunal room has a window that let’s the judge point and say “how far can you walk before you have to stop?” Of course, this is also a moveable feast and I find the more prepared you are in advance the better. Tribunals seem to like distances to bus stops that can be checked, stops at landmarks - corner shop, post box, neighbour’s house etc.

I had a DLA case this year where the appellant, to my amazement, answered the Judge’s question on how far he can walk by saying “I measured it in the garden, which is 25 metres long and I had to stop before walking up and down it once.”

Some people are accurate, others are not.

It really can be worth measuring it. I’ve taken clients ‘out the back’ with a tape measure on many an occasion. The results can be surprising (and frequently bear no resemblence to the distance the client has said they can manage).

CDLA/3853/2013 may be helpful :

“33. Having not accepted the claimant’s evidence as to the distance she could walk, in both appeals the tribunal nevertheless went on to use the time which the claimant said it took her to walk that distance to support a conclusion that the claimant was not virtually unable to walk as, for the majority of the time, the claimant ‘was able to walk at a very slow pace with a limping gait with the use of her walking aid for a distance of between 100 and 200 metres before the onset of severe discomfort’ (decision on the appeal against the Renewal Decision) or ‘was able to walk at a very slow pace with a limping gait for a distance of 200 metres before the onset of severe discomfort’ (decision on the appeal against the May 2012 Refusal).

34. I find it difficult to understand how, having rejected the claimant’s evidence as to the distance she could walk without severe discomfort (10 to 15 metres or 30 to 32 steps), the tribunal felt that it was appropriate to use the time the claimant said she took to cover that very short distance to support a finding that she could, in fact, walk further by waking at a slow pace for that time. There is also no record that the claimant was given an opportunity to comment on the inference the tribunal intended to draw from the time which she said it took her to walk the distance she said she could cover before having to stop”.

I have found the decision maker’s guide chapter 61 to be quite useful (an extract is pasted below). Tribunals seem particularly impressed with the phrasing

“...Most people could, literally, crawl 50 metres in less than five minutes…”

Even with the very restrictive “20 metres” threshold now in the PIPs assessment,If you can produce evidence around these walking speeds or time to cover distances at these avarage speeds - the unsupported (by evidence) opinion of the HCP starts to look a little lame.

————————————————————————————————————————————
61322
Distance is the total distance walked before the onset of severe discomfort (see also DMG 61309 et seq).
61323
In the absence of any significant indications as to the other three factors, manner, speed and time, (DMG 61276 refers), if a claimant is unable to cover more than 25 to 30 metres without suffering severe discomfort, his walking ability is not ‘appreciable’ or ‘significant’; while if the distance is more than 80 or 100 metres, he is unlikely to count as ‘virtually unable to walk’.

Example
John has a walking ability of at least 125 metres (about 135 yards) with normal gait, little pain, without the use of a stick, one stop and some discomfort. John’s physical condition as a whole is not such that his ability to walk out of doors is so limited, as regards the distance, speed, length of time or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk1 .
1 R(DLA) 4/98

61324
It is as important to consider quality of walking, as it is to consider quantity (ie distance). The stated distance may be less significant if it is clear that some of the distance can be achieved only at the expense of severe discomfort. If a person shuffles along, barely putting one foot in front of the other, his progress may be so poor in terms of speed and manner, to amount to virtually unable to walk.

61325
Speed is the pace the claimant walks at. Time is the total time it takes the claimant to walk the relevant distance (see also DMG 61309 et seq). As a guide the average person can walk at

1. brisk pace - >90 metres per minute
2.normal pace -61-90 metres per minute
3.slow pace -40-60 metres per minute
4.very slow pace -<40 metres per minute

Example
Peter can only cover 50 metres in five minutes (or 100 metres in ten minutes). Progress at such a rate is so painfully slow as to amount to little more than shuffling. Most people could, literally, crawl 50 metres in less than five minutes. Even if he can walk 100 metres in five minutes - which is still extremely slow pace - the DM should consider how significant is his ability to walk. Regard must also be had to the words “without severe discomfort”.

61326
Manner is the way the claimant walks with particular regard to his gait and balance. In overturning a tribunal’s decision, a Commissioner pointed out that there was evidence that the claimant would walk with a “stiff legged shuffling gait” and would make “a number of stops at varying distances”. He indicated that the tribunal should have considered specifically the manner in which the claimant was able to make progress on foot, and that it was a relevant factor to take into account alongside distance and severe discomfort.

1964 - 05 December 2014 12:56 PM

It really can be worth measuring it. I’ve taken clients ‘out the back’ with a tape measure on many an occasion. The results can be surprising (and frequently bear no resemblence to the distance the client has said they can manage).

When a client come sin - I tend to use google maps to work out distances from their house to local shops, bus stop etc (with a bit of checking of course) _ I’ve had a high tech judge do the same on his ipad during the tribunal. One of these days I will get around to getting a large scale OS map/town plan of the area round the Magistrates Court (where Tribunals are heard in Sheffield).

I think my main post was more to do with “after the event” when a client comes in having been unsuccessful at first tier tribunal. But thanks for all the replies - very useful

I use OS maps but time is always a problem- the only thing that I have found to work reasonably well is to say to the client ‘imagine you had a single track playing on your ipod , radio or whatever. These are about three minutes or so, could you get to your front gate before the track finished?’ This often gets the estimate of time on a much more realistic footing.

I am endlessly reassured by humans belief that everyone else’s estimates of distance are incorrect except their own. It provides hours of amusement.

At Bolton and Manchester venues I have had 2 different medical members ask claimants respectively about whether they had walked continuously “from the car park barrier” and “over the road from the bus stop near the hi-fi shop”. On both occasions the medical member was assertive in telling my client and the tribunal how far each thing was because they had checked it on Google Maps and an OS Map. I took a certain amount of pleasure in producing my iPad; Google Maps and a live feed for the Judge to see on both occasions that not only was the medical professional inaccurate in their measurement but their inaccuracy was about 30% out!!! On another occasion I’ve had a judge at the Manchester venue tell me exactly how far it was from the security at the entrance of the Civil Justice Centre to the first lift. I was again able to demonstrate they were wrong. In fact they were 50% out.

Three things then:

1) Be prepared with all relevant distances and evidence to challenge tribunal members assertions. They are no more right than claimants and less inclined to base it on evidence than on perception and their own belief that they are a professional and could not possibly be wrong.

2) I have found it useful to point out that our ability to concentrate on external factors when we are in the midst of severe discomfort, which is deteriorating to the point we come to a grinding halt for however long, is inhibited and therefore bound to be inaccurate.

3) I have found it useful to translate things into percentages. For example, we’ve all had cases where a claim form says 40m; the claimant on the day says 20m; the HCP says 200m but the tribunal are inclined toward 50m etc. Tribunals tend toward the view that the mere existence of 1 figure on a claim pack and another on the day is evidence of inconsistency; unreliability and so on. They think, unconsciously, in terms of percentages i.e. if 20m was accurate then 40m is 100% out. An alternative view is to present the difference between 20m, 40m and the 200m. Paints a very different picture. Getting into the extent several estimates of distance translate into percentage differences and whether that is statistically significant makes tribunals very uncomfortable as it’s alien territory. Have had UT judges accept it as a valid point on 2 occasions now though.

I have on 1 occasion included as part of my sub. a document on the biases in human judgement when it comes to estimating distance. Much raising of eyebrows but it’s common sense stuff and kills the “I say it’s this far so it is” approach when combined with maps etc. Nothing profound in there but stuff like… we estimate even slightly winding roads to be longer than straight ones even when they’re exactly the same. We estimate distances in built up urban areas very badly because we lose many of the audio cues that help us better estimate distance. Many of those audio cues are poor anyway and exaggerate how close something is because of an evolutionary bias towards alerting us early to danger. This is why our eyes often think something is nearer than it is too. Then there’s our appalling judgement on gradient… and so on :)

One gets a reputation for doing such stuff but if it confines a tribunal to evidence and fact rather than their unevidenced version then all well and good.   

There is an attachment of a presentation at NAWRA by Judge Martha Street at
post #15 at http://www.rightsnet.org.uk/forums/viewthread/5176/
where she lays out how reps can best help tribunals with issues of walking distance etc

I had mixed feelings about that at the time but elected to keep my own counsel. It struck me as more aimed at volunteer advisers for whom some of the points might not have been obvious. I would be somewhat concerned if professional advisers were not fully familiar with all aspects of that.

More to the point, I am confused as to how it takes this discussion forward.

It strikes me that there may be a danger in focussing on precise distances and times too much.  In many ways that could lead to a black and white, cliff-edge view when what’s really wanted is a client impact assessment.  It’s the effect and effort that is most important from the individual’s viewpoint.

Tribunals in our neck of the woods are apparently trained to take the approach suggested in this decision :

http://www.rightsnet.org.uk/briefcase/summary/Need-to-analyse-evidence-rationally-and-as-a-whole

Specifically :-

22 :-
In order to apply that test, the tribunal has to make findings of fact on the relevant factors. That involves analysing the evidence as a whole to the extent that it can properly be subjected to analysis. The findings of fact can be made with no greater precision than the law requires and the evidence allows. If that means that the findings cannot be expressed in terms of metres per minute or any other precise terms, so be it. All that is necessary is that the findings should be sufficient to support the tribunal’s decision whether or not the claimant is virtually unable to walk. It is my view that the findings may have to be expressed more generally than is the current practice of the First-tier Tribunal and that the Upper Tribunal should accept that this is all that is attainable, given the nature of the test and the evidence available to the tribunal. This is not an excuse for poor quality analysis and fact-finding. It is, in fact, more demanding, because it does not allow tribunals to rely on illusory precision to find differences of opinion where they do not exist on a more rigorous analysis of the substance of the evidence.

Totally agree Gareth. My aim in life is to get through to tribunals that the most hopeless guesstimates of distance are generally HCP reports and that differences between claim form and oral evidence is generally de minimis.

Rob, this would explain why I have recently had two decisions which contained, quite literally, no findings of fact whatsoever 😊 Locally this does seem to have manifested itself in a failure to even ask about time, speed, distance or manner even when explicitly raised and even when evidence is clear and consistent.

Inevitably Liverpool refused leave to appeal on both. The comments on the second one from the UT are somewhat to the point. It will be interesting to see how Liverpool react if they form part of the final decision as they are less than complimentary and chime with the increasingly expressed view locally that Liverpool, despite denials, do routinely refuse leave to appeal in circumstances that leave them open to accusations of bias.

1964 - 05 December 2014 12:56 PM

It really can be worth measuring it. I’ve taken clients ‘out the back’ with a tape measure on many an occasion. The results can be surprising (and frequently bear no resemblence to the distance the client has said they can manage).

Presumably the purpose of gathering such evidence is to use it. What do you do in a situation where a person estimates eg the distance they can walk before stopping to be 50m but when measured is, in fact, 150m?

Many years ago, in the days of Mobility Allowance I think, appeals held at the Liverpool venue included a walk outside. The tribunal members, representative and Presenting Officer [remember them?] would accompany the appellant walking along. Notwithstanding that this was a snapshot of one occasion it seems to me that this was a useful element of the overall evidence to be considered.