PIP “Moving Around” Anomaly

I have just been at a FTT appeal today. My client had been scored 4 points under mobility descriptor 2B as ATOS (and by extension the DWP) decided that he could walk using an aid a distance in excess of 50 metres. There were two points raised about this at appeal: (i) my client cannot walk more than 50 metres with his aid and so should satisfy descriptor 2D but also; (ii) he cannot walk virtually at all unaided, and certainly not more than 20 metres. Case law (CPIP/4572/2014 and UK/694/2015) confirms that decisions need to be considered with regard to the claimant’s ability to walk unaided in conjuction with reg 7(1)(b) which confirms that the highest scoring descriptor should apply.

During the hearing there was much confusion as to what descriptor should be considered for my client’s ability to walk unaided. 2C states that a claimant “can stand and them move unaided more than 20 metres but no more than 50 metres”. My client cannot do this. Therefore, I suggested 2E which reads “can stand and then move more than 1 metre but no more than 20 metres, either aided on unaided”.  2D would also apply as my client cannot walk more than 50 metres with his aid but this descriptor is specific to his ability to walk aided (and not unaided).

The FTT did not accept my argument about descriptor 2E because my client is able to walk 1 to 20 metres with his aid. This is due to the legislative use of the words “either aided or unaided” which they took to mean that, as long as my client can do the distance in one of the ways outlined, he cannot rely on that descriptor. In the end he was awarded descriptor 2C and our appeal was allowed and he got the enhanced mobility component. He was not given 2D, however, but this made no material difference to the outcome as he still qualifies for the enhanced mobility component (he scored 4 points on 1B as well which I am not too happy with but that is another story…). I am troubled by the outcome.

I have reviewed the case law cited above which considered anomalies associated with mobility activity 2 and provides examples of the way this activity could materialise. The judgments provide examples of claimants where they can walk in excess of 200 metres with an aid but only 20-50 metres without. The UT recommend that 2C should be strongly considered in these cases as the FTT needs to make findings of fact as to the ability to walk unaided and then consider this in conjuction with reg 7(1)(b).

However, the UT judgments did not consider cases such as my client’s. To use an example, suppose a claimant could walk more than 200 metres aided but was virtually unable to walk (less than 20 metres) without an aid. They would not qualify for descriptor 2C as they cannot walk between 20-50 metres unaided. Surely, they should score even higher for not being able to manage even 20 metres? But, according to the FTT who heard our appeal today, my client cannot rely on any higher scoring descriptors as: (i) 2D is specific to using an aid and; (ii) 2E & 2F both use the term “either aided or unaided”.

This makes no sense at all. My client has, as a result, been scored a descriptor that he cannot manage as there is no higher scoring descriptor that fits the bill. If the scoring had been material to the outcome, I would have been minded to appeal to the UT but, as it was not and because of the stress the appeal hearing has caused my client (who has fragile mental health), this obviously won’t be the case.

Is there something I am missing? And has anybody else had experience with this “moving around” anomaly?

The judgments you quote disagree about descriptor 2(c). 

UK/694/2015 at para 28 states:

“Specifically it would seem 2(c) was intended to capture claimants who are limited to walking more than 20 but no further than 50 metres and no further even if they have an aid”

Whereas CPIP 4572 2014 suggests 2(c) can be satisfied by someone who is unable to move more than 50 metres unaided irrespective of the fact they can cover more than that distance aided.

The latter takes the view that 2(c) should be interpreted literally and if it presents an anomaly then it can be re-drafted by the Legislature.  However the former judgment effectively reads the word “aided” into 2(c) in order to remove the anomaly.

Neither judgment would support your contention that 2(e) applies.  Reg 4(2) Pip Regs in my view rules out 2(e) applying to your client because it effectively prohibits the consideration of how far a person can move unaided if they either normally use an aid or could reasonably be expected to use one.

Where does that leave your client?  If UK/694/2015 is correct then you would look at how far s/he could walk aided and that would determine the applicable descriptor.  If CPIP/4572/2014 is correct, then 2(c) may still not apply because, as you suggest, it only appears to cover those who can at least cover 21 metres unaided.  The anomaly which it creates, however, doesn’t appear to affect your client who does appear to be able to use an aid.  To the extent that use of the aid would prevent them scoring even 8pts, ie the points available under 2(c), then it’s arguable that 2(c) should be interpreted so as to include those people who cannot manage even 21 metres unaided in order to avoid absurdity even though that goes against the literal meaning of the descriptor.  But your tribunal has awarded 2(c) anyway.  Either that descriptor or 2(d) on the facts would appear appropriate.