Unable to stand. PIP Mobility activity 2

Dear Rightsnet contributors,

Have any of you had any success of arguing descriptor

f. Cannot, either aided or unaided, –
(i) stand; or
(ii) move more than 1 metre. 12points

?
I have a client whose PIP was reviewed and descriptor d chosen instead of e on the basis that my client allegedly said she can walk for 2 minutes to the HCP. Both the report from the HCP in 2015 and 2018 state under general observations that she was ‘unable to stand as she was in too much pain’. Because there is no medical evidence of her exercise tolerance, and there is this back and forth of what she said or didn’t say to the HCP; I’m thinking of going for f(i)

When to ‘stand’ means to stand upright, I imagine there are lots of clients who cannot stand?
I haven’t found any caselaw about being able to walk but not being able to stand upright, is there any please?

Thank you so much for your time everyone.

What’s the nature of her condition?
From the HCP report you mention I get the impression that it’s pain that prevents her from standing [to an acceptable standard], if so you could have a look at CPIP/665/2016, although that will only get you part of the way, insofar as that the (level of) pain should be taken into consideration.

The descriptor is fairly clear on the standing part - CPAG uses double amputee as an example.

Thank you Va1der, she can put one biological foot on the ground, but she can’t stand upright. She cannot walk reliably (reg4 PIP2013), I’ll certainly put that into my submission. I just wondered if anyone had had experience or read cases where it was accepted that the claimant could not stand (under the PIP definition), but could walk.

If she can’t stand she satisfies 1(f).

You might find it useful to read the PIP consultations. If I recall, the wording of 1(f) is to cater for, for example, people who are permanently restricted to a wheelchair. Many people in wheelchairs can mobilise long distances effectively, but if they can’t stand at all they are still significantly restricted.
A person with effective prosthetics might not score points for mobility at all, unless for example the prosthetics are painful to use.

I think you could convince most tribunals that moving cannot be done to an acceptable standard if the claimant would scream and fall as soon as she stopped moving. But, as I said, you might have to look at the finer details of your client’s case.

Eastbourne - 25 February 2020 12:20 PM

I have a client whose PIP was reviewed and descriptor d chosen instead of e on the basis that my client allegedly said she can walk for 2 minutes to the HCP.

Isn’t it odd how HCPs are so very quick to unquestioningly believe claimants who state that they can walk for x period of time but then find a million and one reasons from general observations/functional history etc., not to believe other facts that they tell them?

I am not aware of any case law on this (although someone else might be of course). I think that it comes down to the facts of your client’s case. Can she stand up reliably for the majority of the time or not? And if not why not? And if she can actually walk when she is stood up, what is the functional restriction that usually prevents her from standing up in the first place but supposedly does not prevent her from walking once stood up? Once you have got your head around that the argument should be clearer. That can then lead to 2F or 2E, either (or both) are possible when regs 4A,B,C&D and 7 are considered, even if she can actually walk for a couple of minutes every now and then.

Another factor is that many claimants will give an overall figure of how long they can be on their feet in total, including resting time, rather than how long they actually walk without stopping because they don’t appreciate the difference. I have found that many tribunals are also pretty slow to grasp this when it appears in medical letters, etc., and it needs spelling out to them.

I mulled running an argument once for someone who could walk fine but was overcome with pain when they stopped moving and were just standing but I didn’t run it in the end for various (unrelated) reasons https://www.rightsnet.org.uk/forums/viewthread/12673/

I think that rather than worrying about the face-to-face assessment report (in my impression the Tribunals are used to all sorts of odd stuff being on these and do not attach a great deal of weight to them) you need to be clear with your client exactly what restriction she is reporting. If she says that she cannot stand or walk that is descriptor F. If she can stand up but is struggling to walk more than 20 metres that is descriptor E. I think it only becomes complicated if she is actually saying that she can walk but cannot stand still. I think that trying to fit the descriptors around the F2F report might risk causing more confusion than it solves problems.

Re. the report - it is worth noting that there is a difference between ‘standing’ in terms of a transition from a seated position and ‘standing’ as a stable position. I’d suggest that the PIP descriptor is looking at the latter. You might want to check with the client whether the HCP was referring to her being in too much pain to do the former.

Remember that all of the descriptors are “stand and then move” rather than “walk”. If your client is unable to complete the composite activity of “standing”, “and then”, “moving” in excess of 20 metres to an appropriate standard she will get the 12 points. I don’t see any reason to limit yourself to just the “stand” part.

I agree with BC about the HCP report. You don’t need to get into a “he says, she says” about what was or wasn’t said at the assessment. The point is that, regardless of what was said, your client is unable to complete the activity to the required extent.