Correct interpretation of 12 d ‘Cannot follow the route of an unfamiliar journey without another person…’ - ANSWERS PLEASE!

Hello all.

I was hoping I could get an opinion on an issue that came up regarding planning and following journeys in a recent appeal hearing.  We have until 25/12/15 (?) to request upper tribunal hearing if necesary.

The siutation is this – the client has a complex medical issue which restricts her ability to walk.  She was awarded 10 points for moving around: 1 (or 12) d ‘ Can stand and then move using an aid or appliance more than 20 metres but no more than 50 metres.’

This was upheld at first tier hearing and she was given more points for various daily activity (standard rate).

The client is extrememly organised and knowledgable about her condition.  She tries her
best to work but is often twarted from making journeys either aided or unaided, by taxi or public transport.  She keep a detailed diary of how often this would occur over a year which I analysed and it came out as showing that when she is accompanied, be it to a familiar or unfamiliar location, she completes most of her journeys (85%), however when she is not accompanied, completes only 35% of them.  It is not particualry becuase of anxiety that she doesnt complete journeys, more physical issues. 

I put this to the tribunal and cited CSPIP/109/2015 (attached) it may not just be mental health that woud prevetn someone from following or undertaking a journey.  In particular – at paragraph 12 Commissioner Agnew said:

‘I consider that ‘cannot follow’ does not have the restricted meaning put forward by the Secretary of State. It is the ‘cannot’ that is the significant word and ‘cannot’ is not qualified by any reason. I consider that it covers the situation where a claimant ‘cannot follow’ the route because they cannot navigate the route, or because they cannot follow it because of some psychological factor, such as anxiety, even if they have the intellectual capacity to follow the route in theory. Even if a claimant can in theory navigate a route, if the claimant cannot in fact go out and follow it without the assistance of another person, dog or other aid, whatever that reason, I consider it brings the claimant within the activity [our emphasis].’

Having got reasons for the decision from the tribunal, the judge has said that the issue is a mental health one citing both RC v SSWP [2015] UKUT 0386 (AAC) and DA v Secretary of State for Work and Pensions [2015] UKUT 0344 (AAC) and becuase the client made clear in the hearing that ‘I dont think anxiety or distress prevents me from going out’ the activity (1d or 12 d) did not apply.

Has any one had any experience of this and got any thoughts?  Is judge right in his interpretation of the law and so no point in UT hearing?
If I were to ask for a UT hearing what sort of things should I raise?

Any thoughts welcome – thanks!
Emma