I am looking for some clarification regarding tribunals interpretation of walking around a supermarket. At appeal yesterday chairman told me that the accepted rule of thumb is that if appellant can walk around a standard supermarket then they will be classed as being able to walk 800 yards out of doors.

Client was then turned down even though it takes her an hour to get around supermarket in discomfort, leaning on trolley for support. She only goes once every 2/3 weeks.

In her other evidence regarding walking to local shops, the chair printed off a google map from her address to local shop,which showed an approximate distance of 40-50 yards.

I understand that tribunals can use all evidence of walking ability, but i am concerned about this apparent use of the rule of thumb.

Notwithstanding the fact that the mobility component is concerned with walking outdoors tribunals must be careful here lest a rule of thumb becomes a rule and for that reason renders their decisions unlawful.

Detailed findings of fact will need to be made on how big the supermarket is, whether a person holds on to a trolley, how long it takes to get round and the freqency and lengths of stops. And, not to mention variability.

Furthermore, a claimant who has no choice but to do his own shopping may take so much out of himself by doing so that he pays for it after and might be barely able to walk at all. That should also be taken into account. On the flip side, tribunals must assess a person's walking ability as a whole and not just look at the distance covered until the first stop.

I see this line of questioning week in week out and it does get a bit irritating. I don't mind it if it is being used to get a broader picture of a claimant's walking abilities. Where I do object is to an assumption (and I have no evidence that this is what is in a tribunal's mind) that if a person was really virtually unable to walk then they would not put themselves through the 'ordeal' of walking round a supermarket.

"......the accepted rule of thumb is that if appellant can walk around a standard supermarket then they will be classed as being able to walk 800 yards out of doors....."

Ummm, accepted by whom? and using what logical process of thought? Presumably your Chairman doesn't do shopping too often. The act of walking around a supermarket cannot be taken as a genuine test, and should be vigerously argued against for a number of reasons:-

1. When one walks around a supermarket one necessarily does it extremely slowly, stopping every few feet or so to find products on the shelves, to compare prices, whatever and, in the case of a disabled person, to rest.
2. Someone with mobility problems will out of necessity and commonsense use a shopping trolley as a means of support.

Virtually unable to walk is said to apply to anyone who cannot walk further than 30/40 yards without being forced to stop because of severe discomfort - how can walking , (or meandering to describe more it more accurately), around a supermarket in the manner described above be taken as evidence that a claimant can walk....

There is no 30/40 yard rule - or if there is it's just a rule of thumb...

Though indoor walking is of a different quality in many ways to outdoor walking, the ability to move around indoors is not irrelevant to assessing the likely ability to walk out of doors, as long as the Tribunal keeps the differences in mind and allows for them (eg, surface not usually as flat).

When I shop in a supermarket (and it's a very big one), I often walk quite long distances to get to the shelves I want. I'm certainly not stopping every couple of yards. But I have to say I do take an hour to do it. I haven't actually estimated how far I walk on these occasions - must do so one day.

Finally it is suggested in the commentary in Sweet and maxwell that someone who can walk a substantial distance with frequent short stops has a greater walking ability than someone who can only walk say 100m and then needs to rest for an hour.

And at the end of the day, most people have absolutely no idea about distance and time. They will tell you it takes then 25 minutes to walk 20 metres. Think about it...most people over 40 have no idea what a metre is.

Thanks for the above information. I fully understand the link between indoors/outdoors walking etc, i guess my main concern was if other chairs were using this "rule of thumb" then it's something that is being circulated amongst them. To my (limited) knowledge there have been no commissioners decisions specifically mentioning 800 yards.

I will know more when the statement of reasons comes back, as to how much weight the chair has placed upon this "rule of thumb" evidence.

In R(DLA) 4/03 the commissioner said: -

22. All the aspects of a claimant’s walking are to be considered which result from physical disablement and an evaluation of its quality is then made. This is on the basis that firstly, walking achieved only with severe discomfort is discounted and secondly, that a tribunal must pay appropriate regard to manner, speed, distance and time. This exercise is carried out with the purpose of determining whether, taken overall, the claimant’s walking out of doors is properly described as "virtually unable to walk".

23. If a stop is the absolute limit of the claimant’s capacity to walk then no issue of taking the test only to the first onset of severe discomfort arises. But if a claimant recovers after a period of rest and continues walking without severe discomfort, then the statutory test does not preclude such continued walking from being assessed. The tribunal must judge from the evidence such relevant factors as how far the claimant can initially walk without experiencing severe discomfort, how long any severe discomfort lasts before it subsides or, if he has paused to prevent such discomfort then the necessary duration of that pause, how frequently these halts recur if at all, and what is the total distance and time he can walk in this manner without severe discomfort.

24. Time, speed, manner and distance of walking, achieved without severe discomfort, are therefore balanced in order to reach an overall judgement on whether the claimant is virtually unable to walk. If a claimant has to rest an hour between each set of walking before severe discomfort subsides, he or she is more likely to be virtually unable to walk than a claimant who requires only 5 minutes. Conversely, if a claimant with morning stiffness through rheumatoid arthritis walks the first minute out of doors in severe discomfort, stops for 4 minutes in order to flex his limbs and thereafter is enabled to walk 10 miles without severe discomfort at a reasonable pace and speed and without further halts, the statutory criteria do not prevent a conclusion which is in no way perverse, that such a claimant does not fall within regulation 12(1)(a)(ii).

25. All of these are matters for the good sense of tribunals. It is not, however, the law that only walking to a first halt required through severe discomfort is relevant. This adds an unjustifiable gloss to the statutory criteria given the broad purpose of the test under regulation 12(1)(a)(ii), which is to establish the practical limitations on a person’s ability to walk due to the stated factors.

CDLA/12551/1996 covers some of the points raised by previous replies - in case you want a Cmr decision on this.

The tribunal made a finding that the appellant could walk 200 yards when shopping. The decision was held to be erroneous as the evidence of walking when shopping was not actually related to the legal test of walking outdoors and the Cmr said as a minimum the tribunal should have said they had taken into account the differences.

It is mentioned in the Derbyshire DLA caselaw pack.

"Virtually unable to walk is said to apply to anyone who cannot walk further than 30/40 yards without being forced to stop because of severe discomfort.... "


Commissioners Decision CDLA/12750/1996 states:

The application of the approach that severe discomfort only becomes severe when it forces a person to stop walking is wrong in law. Because it defines out of existence the possibility that a person may continue walking although in severe discomfort.

Definately agree that wandering around a supermarket is very different to walking out of doors and i would therefore argue this point vigourously.

The belief that 'the accepted rule of thumb is that if appellant can walk around a standard supermarket then they will be classed as being able to walk 800 yards out of doors' may well come from guidance given in the DWP's 'Incapacity Benefit Handbook for Approved Doctors'.

In considering the PCA descriptor 'walking on level ground with a walking stick or other such aid if normally used' the Handbook advises -

'Bear in mind that a person who can easily manage around the house and garden
is unlikely to be limited to walking less than 200 metres; a person who can walk
around a shopping centre/supermarket is unlikely to be limited to walking less
than 800 metres.'

The Incapacity Handbook for Approved Doctors is available here.