I was wondering if I could have some people’s opinions on this case as I cannot get through to the CPAG advice line.
My client has a very rare blood disorder meaning she cannot walk around outside in temperatures of 15 degrees or less. (being in the North East of England this means she cannot do this for the majority of the year) The health issues is extremely complex and she has lots of treatments etc.
The main issue is that she was awarded DLA (high rate mobility) based on being unable or virtually unable to walk.
She as now been migrated onto PIP and scored 0 points at assessment.
She argues that she should be awarded Mobility of PIP and has found case law (R(M) 1/96) which was used in case CPIP/3272/2016 which states that Tribunals must adequatley explain why someone’s PIP award is very different from their earlier DLA award and it will not be enough for the DWP to say that the law is different.
It seems to me that there is no provision in the PIP mobility components for the ‘virtually unable to walk’ rule and she simply does not qualify any more. But this case law is muddying the waters for me as it states that they can’t just say the law is different? Yet they can’t say that she fits the descriptors either?!
Other than making sure she writes detailed diaries of her daily activities with a screen shot of the temperature from a mobile device to indicate that she cannot do this action reliably due to the impact of the environmental conditions, I’m not sure what else she can do or argue. Even if she does do this the descriptors just don’t seem to apply to her anymore. Any thoughts are greatly appreciated.
Thank you for any help in advance.
If a descriptor applies for more than six months in a one year period, you score the points for that descriptor (or the highest scoring descriptor if two or more apply to you for more than 6 months). If no descriptor applies to you for 6 months of the year, but two or more added together do, the descriptor that applies most of the time applies, or the highest scoring one if they apply for the same amount of time.
I assume from what you’re saying about the interaction of your client’s illness and the weather conditions that she e. can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided. so isn’t there an argument for 12 points there?
Could you also possibly use the similar argument which would be used for visually impaired claimants, that if you cannot do it at any point of the day (as long as it is not a trifling period) then it should be applied for the whole of that day. Living in Scotland (which I would have thought has a similar climate to north east england) that the number of days where the temperature doesn’t get above 15 degrees until about midday and would drop down again by 5pm would probably account for most of the year from September til the end of May at least and very probably a lot of days in June to August as well. As such they would be effectively disbarred from going out in those hours. See CPIP 2054 2015
The PIP guidance states that this should be judged on a typical surface found out of doors (i.e. level payment). So, could it not be argued that to walk on a surface out of doors, one has to be medically capable of going out of doors. As she cannot walk out of doors reliably for the majority of the time that she would satisfy 1E or F as she cannot achieve that distance out of doors if the temp is below that level.
However, it seems like an awfully specific temperature and at the risk of stating the obvious, could she not wear a jacket etc. I only ask as you may find she is asked that at a tribunal.
R(M) 1/96 and associated cases do not really advance matters much. The Tribunal (if it refuses her appeal, which it hasn’t yet) ought to explain, to the extent it isn’t obvious, why it has departed from the prior history.
So if a claimant has received middle rate care for 20 years due to arthritis or some such and the Tribunal decides she scores 0 points for daily living, that might be something which needs to be remarked upon and explained beyond saying “the law has changed”. There is, in a broad sense, a connection between the sorts of things which get you middle rate care and the sorts of things which score points for PIP daily living.
But it doesn’t give the Tribunal any ability to change or ignore the law. If your client’s extremely unusual circumstances preclude any entitlement under the PIP assessment, R(M) 1/96 can’t change that.
I think that attention is best kept to the actual substantive entitlement and I think Paul is right about that. If the facts of the case are that for more than 50% of days, your client cannot move around distances of 1-20m, then 12 points are scored. DT v SSWP (PIP)  UKUT 240 (AAC) records the Upper Tribunal and DWP view that we are talking about “out of doors” surfaces and this is in the PIP assessment guide also. I think it is consistent with this to say that the weather is relevant. If your client can’t move around safely and to a reasonable standard out of doors for more than half the year, then you are looking at arguing activity 2.
I thought it would be as simple as that yes. The matter gets rather complicated as she has been to tribunal and had it adjourned pending further medical evidence, which was actually in the bundle already anyway and bore little importance. (bizarre I know but I’ve seen the bundle and the directions) I met the client for the first time after this happened. She seemed to think that the tribunal wasn’t going in her favour and they didn’t understand her condition. (I must say I don’t pretend to either)
If she were to walk outside in these temperatures she would suffer severe and acute anemia where the symptoms are breathlessness, muscle pain , circulation problems and a greater risk of blood clots, strokes and heart attacks. This means that she takes preventative measures, meaning she just simply does not walk outside in those temperatures so nothing happens to her
But because she doesn’t do this, she prevents herself from having any adverse effects and therefore she has no physical issues with walking. And if, for example, she went to a shopping centre she would be fine walking around for a good while as it is all indoors and war, (that is my understanding anyway)
She advises she can nip in and out of a car in these weather conditions and has to wear very warm clothing. So technically she can get out and about as long as she has warm, quick transport and the place she is going is warm.
She has not been given another date for the next tribunal so I’m hoping I can argue the 50% rule.
Maybe I was overthinking things!
I would expect it to come down to the finer details of the condition. Adding to what alang wrote about putting on a jacket, would it be reasonable for her to wear a ‘personal heating system’ for instance? We used them in the army in Norway in extreme cold situations. Not saying that is necessarily a realistic option, but aids should inevitably be considered, if nothing else because they might improve her quality of life, PIP aside.
You haven’t said anything about her mental health, but I assume it might be quite distressing to leave the house on colder days, so you might be able to look at 1(e).