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PIP mobility on mental health grounds
I don’t see why this is a ‘test case’ any more than the earlier cases until it reaches a three-judge panel. It hasn’t been fully argued and an oral hearing was refused.
If this interpretation ultimately prevails, the DWP have been allowed to pull off an almost unbelievable con trick by using duplicitous drafting and claiming that it presents a generous change at consultation stage (and, with astounding gumption, to the Court of Appeal in Sumpter) and then arguing for an unfavourable interpretation when it comes to a case involving the activity. (I also feel that they got away with the same trick with ESA activity 13). If they really intended all along that ‘following’ meant navigating, then they must have also intended to mislead everybody about this.
Further thoughts: I think the lesson also has to be to raise the possibility at consultation stage that a trick like this is a future possibility, and challenge vague measures like safely, reliably, to an acceptable standard where these could be circumvented by additional hurdles elsewhere.
If the DWP meant ‘navigating’ why not use the term in the regs (and further define as neccessary)?
Judge Jacobs has summed up the situation with interpreting the PIP regs:
“The personal independence payment legislation is providing a rich source of ambiguities. Even making allowance for the benefit of hindsight, the problems that arise in interpreting Activity 3 were eminently foreseeable and readily avoidable.” CPIP/1882/2015 - AN v SSWP [2015] UKUT 681 (AAC) - para. 3
Whilst the case concerned Activity 3 clearly can be applied to PIP as a whole. also noting the consultation on ‘aids and applicances’
Given the history of AA/DLA/WCA case law etc. - ‘We told you so, you wouldn’t listen! Congratulations on another successful welfare reform!’
I agree, it isn’t a test case as such nor is it binding precedent over the other two decisions. However, because it discusses and compares the merits of the other two decisions FtT’s are more likely to follow it rather than the contrary one. And yes, as a matter of law, FtT’s are entirely free not to follow it until a three judge UT considers the point. Like any development of the law, it’s always a bit messy at the start.
Just for interest, has anyone got a recent set of papers where planning and following journeys is in issue due to a claimant’s mental health problems? If so are the DWP mentioning Judge Ward’s decision in their appeal response?
Cheers,
Jon
Just for interest, has anyone got a recent set of papers where planning and following journeys is in issue due to a claimant’s mental health problems? If so are the DWP mentioning Judge Ward’s decision in their appeal response?
Cheers,
Jon
Although they don’t cite the decision they did precis Judge Ward’s findings on a sub issued last Friday.
Just for interest, has anyone got a recent set of papers where planning and following journeys is in issue due to a claimant’s mental health problems? If so are the DWP mentioning Judge Ward’s decision in their appeal response?
Cheers,
Jon
Although they don’t cite the decision they did precis Judge Ward’s findings on a sub issued last Friday.
Thanks Dan.
any update on decisions/UT regarding this ?
thanks
Hi Linzi!
Had a client awarded standard mobility back in March on this very issue. DWP requested SofR but took no further action.
Cl has borderline personality disorder and severe anxiety, and will not leave her house unaccompanied. Tribunal reasoned that she would be unable to follow the route of a journey without having someone with her.
strangely enough mine and a few others i have read who were awarded points on this descriptor had borderline personality disorder aswell. why do think this seems relevant to awarding these points easier. im thinking maybe because they are prone to feelings of paranoia and problems with social interaction and so couldn’t ask directions and stuff or would get distracted due to paranoia and get lost etc
That’s about the long and short of it! It was certainly the gist of my argument, although to be fair the client did her bit by bursting into tears during the questioning process!
Also, the judge stated in the SofR that if the client couldn’t/wouldn’t leave home unaccompanied, then it would be impossible for her to “follow the route” of a journey, regardless of whether she was able to plan it on a map.
Also, the judge stated in the SofR that if the client couldn’t/wouldn’t leave home unaccompanied, then it would be impossible for her to “follow the route” of a journey, regardless of whether she was able to plan it on a map.
I’m not sure if I agree with the judges reasoning as stated. Surely following that line of thought means that descriptors 1b and 1e serve no purpose?
I know what you mean, Sam, but under the circumstances I was happy to accept the decision!
There is case law on this - DA v SSWP [2015] UKUT 0344 (AAC), RC v SSWP [2015] UKUT 0386 (AAC) and HL v SSWP (PIP) [2015] UKUT 0694. This last, by Judge Ward, seems to have been taken as a lead case, although in theory all three decisions have equal standing. It seems to me that it is not totally helpful, but SSWP (paragraph 7) and Judge Ward (Paragraph 38) both say that if the distress of going out alone is so severe as to prevent you navigating there, then you meet the criteria for 1(d). But if it just means you get so upset that you never go out without someone else then it doesn’t apply. In any case it is clearly not just cognitive or physical ability but mental health as well.
So I think the answer is to take regulation 4 (safely, to an acceptable standard, repeatedly, in a reasonable time period) and reg 7 (majority of the time) when assessing this.
The Assessors Guide (not law I know) does say that an individual who would get excessively lost, or be unable to recover from getting lost would be unable to complete the activity to an acceptable standard.
It also says that the test is an unfamiliar journey on public transport so being able to drive somewhere shouldn’t be taken into account. .
It will still leave out people who don’t go out unaccompanied because they know they will be very upset, but who could manage to push themselves to get there and back They would have had LRM in the past.
Ruth
The case I mentioned at #54 has been further stayed pending the outcome of CPIP/1347/2015.
The observations from the Upper Tribunal states
THE UPPER TRIBUNAL HAS IDENTIED CPIP/1347/2015 AS A LEAD CASE AND HAS DIRECTED A HEARING BY A THREE JUDGE PANEL. FURTHERMORE THE SECRETARY OF STATE NOW RESILES FROM THE VIEW HE ADVANCED AND WHICH JUDGE WARD ADOPTED IN HL v SSWP (PIP) [2015] UKUT 694 (AAC); THAT OVERWHELMING PSYCHOLOGICAL DISTRESS SHOULD NOT BE CONFINED TO DESCRIPTORS 1b AND 1e WHERE IT IS EXPRESSLY MENTIONED, BUT IS CAPABLE OF BEING RELEVANT TO A PERSON’S ABILITYTO FOLLOW THE ROUTE IN DESCRIPTORS 1d AND 1f.
Does anyone have any more information on CPIP/1347/2015?