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PIP appeal - advice needed

CDV Adviser
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My client lost both upper limbs in 2015. It appears they applied for PIP when he was discharged from hospital and was awarded EDL but nothing for mobility on 11/04/2018. This decision wasn’t appealed. He asked for reassessment in 2020 and a telephone assessment was completed. He was again awarded EDL & nothing for mobility. He appealed the decision and has just received the DWP response. They state that they cannot consider the mobility award as the change occurred after he reached pension age (06/07/2019). Would there be any way for me to argue that the change actually occurred before he reached pension age? Is an any time review possible?

Elliot Kent
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The idea that you can’t be awarded mobility after pension age is in some respects just a myth - or at least it was when the DWP made its decision which your client is now appealing.

I explained why here: https://www.rightsnet.org.uk/forums/viewthread/16308

In your case, the restrictions from Reg 27(3) are not engaged at all, because they only apply “Where the original award includes an award of the mobility component and is superseded for a relevant change of circumstance”. Your client’s original award does not “include an award of the mobility component” so the restrictions are irrelevant and the decision can be superseded on any ground which would have been available if your client were not of pension age.

Note that the DWP attempted to fix this position with the Social Security (Personal Independence Payment) (Amendment) Regulations 2020 which amended the regs from 30/11/20. I think it is a reasonable guess that the decision in your client’s case was made before that date so the original regs apply.

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That’s great Elliot. Thank you.

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Is anyone aware of any caselaw relating to sense of touch with regards to mobility? Although my client has the cognitive ability to follow the route of a journey, he can only do so with the help of another person. As mobility activity 1 was designed with cognitive issues in mind, the guide states this includes sensory ability. Would there be any mileage in arguing that he lacks the sense of touch?

Elliot Kent
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Perhaps I am naïve to the issues but certainly the question of how the loss of both arms leads to a PIP mobility award seems the more difficult part of this case.

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Although I agree, I’m trying to be optimistic.

Va1der
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Does he have prostethic limbs?
I can see many mobility issues for someone without arms. Presumable he can’t drive, and can’t pay for a bus or taxi. Effectively restricted to walking, which doesn’t include opening doors or gates, pressing buttons at road crossings etc.

Mike Hughes
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Phil R - 15 December 2020 03:47 PM

Although I agree, I’m trying to be optimistic.

Certainly reduced warning of potential obstacles comes into play. Arms are a bit like cats whiskers in that respect.

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Va1der - 15 December 2020 05:16 PM

Does he have prostethic limbs?
I can see many mobility issues for someone without arms. Presumable he can’t drive, and can’t pay for a bus or taxi. Effectively restricted to walking, which doesn’t include opening doors or gates, pressing buttons at road crossings etc.

Yes he uses prosthetics but they are very basic. He certainly wouldn’t be able to use public transport alone. He can’t handle money really. His carer drives him everywhere.

Unless I can convince the panel that touch should form part of the criteria, I can’t see any chance of winning.

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Va1der - 15 December 2020 05:16 PM

Does he have prostethic limbs?
I can see many mobility issues for someone without arms. Presumable he can’t drive, and can’t pay for a bus or taxi. Effectively restricted to walking, which doesn’t include opening doors or gates, pressing buttons at road crossings etc.

https://www.gov.uk/administrative-appeals-tribunal-decisions/ho-h-v-secretary-of-state-for-work-and-pensions-pip-2020-ukut-135-aac does seem to categorically rule out most physical restrictions being a basis for points on mobility 1.

It does seem inequitable that your client falls into the gap between the two parts of mobility. Maybe there is a wider discrimination argument that could be run against the format of the descriptors themselves? PIP was said to be targeted at supporting those most in need. Your client’s substantial disability and serious disadvantage at being able to follow a journey unaccompanied just does not seem to be recognized by PIP. Perhaps something for the Upper Tribunal and beyond that needs the groundwork laying early on.

Is balance an issue for mobility 2? The risk from losing his balance is also going to be greater. I imagine that the psychological effects of following a journey alone when you are so vulnerable may also be a factor for mobility 1. Imagine being on a jerky bus or tube without being able to hold on to anything for support, along with all of the practical difficulties already mentioned above. Plus the inevitable abuse and staring that someone without arms will encounter at some point in their interactions with the public.

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I once worked with a gentleman who had no arms. He could drive a car, use a pen, type on a keyboard and was in nearly all (if not in fact all!) respects able to live just the same as anyone who does have both arms. I never enquired as to whether he got PIP or not but I wouldn’t rule out anyone who has no arms as automatically not being able to do a whole range of activities under the PIP criteria which to those of us who do have two arms would seem impossible without them!

That being said he was born without arms so grew up learning how to adapt to a world designed for people with two arms and two legs. For someone who is learning how to cope with it later in life it would obviously be considerably harder (if not impossible, I can’t imagine how I’d manage if I lost both arms) so I imagine strong arguments can be made (though I do agree with Elliot, meeting the mobility criteria does feel dicey to me).

Va1der
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People with severe disabilities go on polar expiditions - that doesn’t mean they aren’t entitled to PIP. There’s a long list of people who have been turned down for PIP because they’ve learned to adapt to thei conditions, however in many of those cases DWP have failed to consider certain things as ‘aids’ or have underestimated whether they are actually carrying out the activities safely etc.

That said, I completely agree this is a long shot, but I also think the UKs welfare system is generally unfair - and we should challenge it when appropriate.

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I certainly agree that the client falls between the cracks when it comes to mobility. He lost both limbs 5 years ago at the age of 61. He has been fitted with a prosthetic limb although this is not currently available as it has been with the supplier for adjustments since March due to the pandemic. He appears to be coping surprisingly well although he is heavily reliant upon his carers. Would raising the issue of discrimination at the 1st tier be helpful or just disregarded? I’m struggling to put a coherent submission together to try to get around the restrictions in the criteria.

Elliot Kent
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Just keep it simple. Your client says that they need to be accompanied on journeys so (presumably) you say he satisfies 1d or 1f. Explain the reasons for his difficulties and why they are supported by the evidence.

Your case isn’t helped at all by getting into conceptual arguments about whether touch amounts to a sensory impairment (I am not sure that this is even a question which needs to be answered) or whether there is discrimination (which is an argument which gets you nowhere even if you succeed on it).

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Va1der - 16 December 2020 12:18 PM

People with severe disabilities go on polar expiditions - that doesn’t mean they aren’t entitled to PIP. There’s a long list of people who have been turned down for PIP because they’ve learned to adapt to thei conditions, however in many of those cases DWP have failed to consider certain things as ‘aids’ or have underestimated whether they are actually carrying out the activities safely etc.

That said, I completely agree this is a long shot, but I also think the UKs welfare system is generally unfair - and we should challenge it when appropriate.

Absolutely agreed on both counts! I used to use the example of Oscar Pistorius to illustrate that point to trainee advisers: “Here is someone who has competed as a runner in the Olympics but would qualify for the Enhanced Rate of Mobility so don’t just assume, always check and ask questions to find out more because you may find points where you least expect them.”

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A huge thank you to everyone that gave me advice on this issue. The appeal was heard yesterday and enhanced mobility awarded. The DWP tried to argue that the appeal was late (which it was due to COVID) but the panel accepted it. They didn’t try to argue that he didn’t satisfy mobility activity 1. A great deal of respect to the panel for awarding it in the circumstances. It just goes to show that if you don’t ask, you don’t get. Thanks again.