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DLA mobility distances
At a Lower Tribunal claimant was refused care and mobility - from the Statement of Reasosn it seems that when forming their decision they used (inaccurate ) estimates of how far away a local car park was and how far away a local hotel was.
Would this constitue an error in law for the purposes of appealing to an UT? It was not brought up during the tribunal
An error of law can include (per Brooke LJ in R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 932) - (adopted by Tribunal of Commissioners in R(I) 2/06)
“Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that the mistake was made”
The main stumbling block may be whether the error was “material” - for example, it may be that a distance cited by the tribunal of 250 metres was actually 120 metres, but the appellant’s ability to walk over that distance was still such that the outcome was unlikely to be altered
The tribunal was of the opinion that the particualr car park was over 50m away ( from the front door of the tribunal building). They agreed he was unable to walk said distance without stopping but were sure it was over 50 m when it is about 35m - we then move onto how their deliberatiions would be affected by the need for a pedestrian to halt twice due to busy roads.
Thanks for your reply
Several Years ago had the exact issue at a local venue
the tribunal judge (who had a place in the solicitors car park the tribunal was held in) said the public car park was over 100m away
We said 40m to the point we used and possibly 100m to the far side of the car park
We were doubted but showed a measuring wheel distance of the precise point used and was accepted (the doctors comment was ‘she got you there’ )
more recently ive known judges use google maps
I have over the years measured every supermarket in our town (for the tiny supermarket/huge hypermarket part of the appeal)
we also lend the client the wheel to measure those popular distances
home to bus stop, home to local shop, front step to car
seems simple but clients are notorious for saying ‘not sure’ on distance this way they are totally sure
Best £15 we ever spent (measuring wheel as remembered from school)
thanks for youer reply - also it is worth quantifying exact distances as you say.
I suspect it is a measure many tribunals use informally but do not specify it either in deliberations ( with the cklient ) or in the statement of reasons
If it’s a factual dispute then you would need to demonstrate that the tribunal went wrong in fact, that the facts were disputed at the time and that the tribunal has made inadequate or incorrect findings of fact. Evidence that was not before the tribunal at the time and whose existence the tribunal was not aware of cannot be adduced later in an appeal on a point of law. The only exception I can think of is where the later evidence is highly persuasive that the tribunal’s decision was bordering on Wednesbury unreasonableness or that there has been some significant procedural impropriety.
The 50 metre distance clung onto by the tribunal is interesting because it is unclear whether the tribunal is saying that that is a particular finding in that case that persuaded it to exercise its judgement in the way it did, or whether it is saying that as a matter of law a person who can walk that distance without stopping is not virtually unable to walk. If the former, then its decision is more robust. If the latter, then its decision is plain wrong.
My impression of their rerasoning in the Statement of Reasosn is that it would be the latter- fo9r example there was no discussion as to where in the carpark he parked.
In addition they came to an ( uninformed ?) opinion that a person with their condition would not have sat in such and such a position
The fact that the Tribunal overestimated the yardage, for example if they said it was 50 yards as opposed to 35 yards, or something of the sort, is clearly challengeable, I have had several such cases over the years. Another aspect of importance, though, is the fact that the Tribunal did not put it to you that they thought it was over 50 yards. They ought to have put it to you, in order that you and the Appellant would have had a chance to comment upon their estimate if you disagreed.
Several Years ago had the exact issue at a local venue
the tribunal judge (who had a place in the solicitors car park the tribunal was held in) said the public car park was over 100m away
We said 40m to the point we used and possibly 100m to the far side of the car park
We were doubted but showed a measuring wheel distance of the precise point used and was accepted (the doctors comment was ‘she got you there’ )
more recently ive known judges use google maps
I have over the years measured every supermarket in our town (for the tiny supermarket/huge hypermarket part of the appeal)
we also lend the client the wheel to measure those popular distances
home to bus stop, home to local shop, front step to car
seems simple but clients are notorious for saying ‘not sure’ on distance this way they are totally sure
Best £15 we ever spent (measuring wheel as remembered from school)
I almost always use a scale plan. I don’t use google maps as they seem a bit vague and the Council in any case has a licence from Ordnance Survey to use their maps for business purposes. I often print off a scale map of the appellant’s street and just ask them how far they would get before they had to stop. I sometimes submit the maps as evidence, especially if an ATOS doctor has made a clear statement that the appellant could walk from some feature (like a corner of the road) to another feature and and the estimate of the distance is clearly wrong. This has meant quite a few appeals succeding at the recon satge, which is always gratifying.
Failing that I think some smartphones have a GPS system in them which will tell you how far you have walked. Please note that this is not necessarily very accurate, my hand held GPS (which is a more complex bit of kit than a ‘phone) actually shows the margin for error when it does its calculations, if it can’t ‘aquire’ more than one or two satellites the margin can get to be as high as 20 or 30 metres.
Its quite possible for a large scale map ( eg those used by local authirty planning depts to detail distances- google maps are certainly vague and A-Zs are the worst
Google Maps is very useful as a starting point but it’s best to understand how it works. It doesn’t usually measure a road via the pavements for example. You’ll tend to find it has measured straight down the middle of a road. Where the road is dead straight it’s rarely an issue but otherwise it almost always is and can make a surprisingly significant difference over a relatively short distance. It’s also unimpressive in reflecting changes in altitude.
I run a mile each day outdoors during the Summer (and on a cross trainer the rest of the year). Half a mile downhill and then a slog back up. When I used Google Maps and an iphone to plot out a half mile out and then ran it I was surprised at just how fast I was running. I seemed to be well ahead of schedule. Checking the same route against OS maps plus (ironically) a quick Google about how Google Maps works and others revealed that my route was about 300m short of half a mile. That’s quite some margin of error. I have tested it on other routes and it varies but it’s worth bearing in mind.
Also worth saying that I’ve had judges tell me that differences of 10 to 15m are irrelevant so I’ve found it useful to translate it into percentage inaccuracy for them. That soon shows that the difference between 35 and 50m is not a “mere 15m” but… well work it out for yourselves 😊
Google pedometer seems to match my garmin when I go running (taking into account drift) so this is what I use when I interview clients in respect to walking distances. It’s accurate over long and short distances too. I run anything from 8 to 20 miles and plan my routes on pedometer then run with the garmin (which is a GPS tracking watch thingey for those non-runners out there).
There’s undoubtedly a whole different thread on this, and I’m not about to start it, but it is worth noting that accuracy quotes for these devices are based on clear skies; flat terrain; straight lines and measuring at fixed intervals, which means that triangulation of position is compromised when you turn etc.
I fear it is a hole we could fall into without fear of ever getting out again so the main thing to keep in mind is that these things can be incredibly useful for giving you ballpark figures and are probably more definitive than a tribunals best guess, depending upon what that is based. The margins of error are always reducing but at present they’re probably still statistically significant despite the many claims that these things are between 1 and 5% off at worst.
Tony is spot on. And folk must constantly bring up the fact that any distance walked AFTER THE ONSET OF SEVERE DISCOMFORT MUST BE IGNORED.
I’d be careful with that. The statutory test is “without severe discomfort”. That is not the same as “before the onset of severe discomfort.” See R(DLA) 4/03
Following a particularly unrealistic estimate of a distance frequently used by tribunals at our local venue recorded in a statement of reasons by a judge who is not a ‘regular’ at the venue - judge’s estimate was 350m - we invested in a measuirng wheel (under £20 on Ebay) - the distance is 77m!
It is well worth measuring such distances frequently sighted by tribunals as an aid to mobilising/mobility questions - even tribunal’s have difficulty estimating distance!
Well worth the investment! And think of the Friday afternoon fun you could have with a measuring wheel, high viz vest and a clip board!