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Shoes with laces v slip-ons: case law conflict?
In JM v SSWP (CPIP/772/2016) Judge Rowley has concluded that slip-on shoes constitute ‘reasonable and practical alternative clothing’, that they are commonly available, are non-specialist and available in a range of styles etc. Whilst reference and allegiance to PE v SSWP claimed in this case, how does this conclusion sit with LC v SSWP (CPIP/1418/2015) which seems to suggest that the inability to use shoe laces is something that should be taken into account. For example para 39 of LC states…
“Dealing with socks and shoes is likely to take markedly longer than usual, and must be specifically considered because dressing and undressing as defined in the Schedule, includes putting on and taking off socks and shoes. It is likely that the appellant cannot tie laces without assistance; he has taken them out of his shoes, which indicates either that, or that he can tie them himself only with very significant difficulty.”
Maybe I am misunderstanding, or a distinction should be allowed because of the differing nature of the respective medical problems of the claimants involved. Comments or views?
Hi Steve, hope you are well. Still getting to grips with UC up here but your training has helped enormously.
Both decisions purport to follow the guidance in PE. In that case, Judge Jacobs was concerned with creating an essentially pragmatic “balance” between “defining away the disability” and “taking account of alternatives” and the suggestion seems to be that the balance is struck by conducting (what seems to me at least) a holistic consideration of the aspects of impaired function such as “stretching, reaching, bending, and gripping”.
Both cases seem to take a different approach to that balancing act though. In JM Judge Rowley seems to be hinting that the balancing act is conducted, as a matter of law, by considering the particular article of clothing out of context - so slip on shoes are either a relevant alternative or not and that is that. I think that’s the approach your post is taking too Steve. You could be dressed head to toe, day in, day out in “reasonable alternatives” and not get any points.
In LC, Judge Grey seems to have taken the balancing act as a “case by case” matter. In that case, the claimant was restricted in many areas of his clothing choice with him needing to wear “shoes with their laces removed, tops without buttons and pull on track-suit bottoms”. My reading is that she viewed the case in the round, rather than considering each item individually. The question was whether the Tribunal was going too far, in the particular case, in basing its decision on such a limited range of clothes. Slip on shoes were relevant, but only as one part of the claimant’s overall limitations in dressing.
I think that, if PE is correct then LC is the correct approach to take to it. I think the point Judge Jacobs was trying to make, particularly in the last bullet point in para 19 is that even if the Tribunal can justify saying that slip on shoes, cardigans, t-shirts, loose fitting joggers etc are all individually reasonable alternatives - it will eventually have set up such a narrow goal to shoot at that the claimant doesn’t have a chance, despite their substantial disabilities. It needs to avoid doing that by approaching the issue pragmatically.
Interested to hear what others think (and quietly confident someone will explain why I’m totally wrong!)
I read the later cases as saying that slip-on shoes can be a reasonable alternative to needing to manually fasten buckles or laces, but not that they should be so loose and casual that no ‘putting on’ is even really required. There are shoes without buckles or laces that are suitable for smart everyday wear but they still need some bending down and handling to put on.
I would imagine that someone who struggles to bend and reach their feet would be likely to score the same points for problems with socks in any case. So it may be that the decision only really affects people whose only difficulty is manual dexterity to fasten the laces, and they would also probably score under other clothing.
I agree with the case by case approach still being the correct approach, if the nature of an individuals disability requires solid or sturdy supportive footwear then slip-on’s would be of no use, so we are now fore armed and can cover that detail in the original claim form if we are involved at that stage.
if the nature of an individuals disability requires solid or sturdy supportive footwear then slip-on’s would be of no use, so we are now fore armed and can cover that detail in the original claim form if we are involved at that stage.
This was one part of my argument against it but it failed. Look at para 28 of JM, particularly the last sentence:
“By using the slip-on shoes the claimant bypasses the impaired function. As in the example of the cardigan and pullover, slip-on shoes perform a similar clothing role to other shoes, in that they cover and protect the feet; and they are a commonly available, non-specialist item of clothing. I accept the Secretary of State’s submission that they are available in a range of styles for whatever need or occasion.”
Judge Rowley doesn’t agree that there is any situation where slip on shoes would not be a practical alternative, she believes that solid or sturdy or supportive footwear can also be found in slip on form.
Judge Rowley doesn’t agree that there is any situation where slip on shoes would not be a practical alternative, she believes that solid or sturdy or supportive footwear can also be found in slip on form.
evidence from podiatrist might help?
it would surely depend on exactly what the client’s problem was that supportive etc shoes were needed. some people might need special insoles etc that may not work with slip ons. some people might need ankle support only provided by decent boots ....and so on.
I agree Claire but…
“I accept the Secretary of State’s submission that they are available in a range of styles for whatever need or occasion.”
Would it therefore require arguing that this has been incorrectly determined?
I agree Claire but…
“I accept the Secretary of State’s submission that they are available in a range of styles for whatever need or occasion.”
Would it therefore require arguing that this has been incorrectly determined?
a submission is not evidence. if the SoS submitted that that was so, the SoS should have had evidence available that that was so. so if a client produces evidence that s/he has been unable to find suitable slip ons for his/her condition, the SoS would have to produce evidence to the opposite effect. the more so if client’s evidence is backed by evidence from a relevantly qualified medical person such as a podiatrist.
no matter how inquisitorial a tribunal system is, it still has to have evidence to back up a decision…...
I sense a 3 Judge decision coming on this one, I believe is correct that a DM/SoS is not qualified too say that slip on cover all, had it been from a medical specialist fine, but a DM is not qualified to say this, and I would argue that at FtT and UT. Remember case law such as this is is good guidance but not binding.