Mobility Activity 1 and Public transport

I am struggling to see why (in the Health Assessors Guide) they are asked to assess 1 (d) (following the route of an unfamiliar journey) in terms of public transport, but not 1(b), 1(c) or 1 (f).  Is the logic that a longer journey would require public transport whereas a familiar, and probably closer, journey would not?  This wouldn’t always be the case.  Is there something else I am missing?

Logic? That doesn’t usually come into it does it?

It’s only guidance and the use of language won’t have gone through the same level of review as with legislation. The presence or absence of a word in one paragraph doesn’t necessarily imply that that was deliberate.

But to answer the underlying question: No, that doesn’t follow from the legislation or the caselaw. See for example:  [2016] UKUT 420 (AAC) which deals with the question of ‘locality’ of a un/familiar journey. If I recall, the judge also happens to briefly deal with the question of whether any weight should be attached to the guidance.

[2019] UKUT 274 (AAC) seems to say that a holistic approach should be used to see if someone can plan 1(c) and follow the route 1(d) and 1 (f) using public transport ( as well as car, foot and bike or horse I guess if someone uses these methods of transport).

1 (b) is about prompting on any journey, so I guess it would have to be inclusive of all the methods of transport that the person may wish to use, but no point saying they need prompting to take a journey by a method they have no desire to utilise.

I haven’t advocated for someone wishing to travel by horse yet, but I guess particularly in the rural or travelling communities, it could be relevant.

Thanks for the comments above.  [2019] UKUT 274 (AAC) has referred to a few other cases which I haven’t read yet.  Also on reflection Tim is right - it is irrelevant to 1 (b) and 1 (e).  But the reason the question arose for me, is that it is quite common to come across clients with levels of anxiety which mean that they can manage to drive and feel safe inside a car, and can usually use a taxi, but would never be able to walk or take public transport for either familiar or unfamiliar journeys.  So, even though it is guidance and not legislation, I feel confident they meet 1(d), but I am never sure whether I should really be claiming that they meet 1 (f) .  As one scores 10 and one 12 the difference is major.  The concept of taking a “holistic” approach is rather more slippery!  I know we can look at questions such as whether they could manage to walk from where they park, but I can, for instance, envisage a long familiar journey (for instance to a relative’s house) that because of their anxiety they could only carry out by car, and this seems to me to be quite disabling.  I haven’t yet looked at the other cases [2019] UKUT 274 refers to, so may get a bit more clarity from that.

Found the following to be helpful, may be of interest. See extracts from a sub.

39. Judge Hemingway in [2018] UKUT 339 (AAC) provides guidance on the approach that tribunals should adopt when assessing the relationship between descriptor 1b and descriptors 1d and 1f (referring to the three-judge panel decision of the Upper Tribunal in MH v SSWP (PIP) [2016] UKUT 531 (AAC) at paragraphs 43 to 46) and highlights that ‘where a tribunal decides that mobility descriptor 1b applies such that 4 points are scored, it will normally have to go on to ask itself whether that same prompting is required to enable the claimant to follow the route of a journey.

40. If it is not then ordinarily, the tribunal will have to offer something by way of an explanation as to that. That is because, on the face of it, it might seem surprising (though I accept it is certainly possible) that a claimant who would, absent prompting, experience overwhelming psychological distress at the time of contemplating going out-of-doors would not, absent that prompting or absent another person, experience overwhelming psychological distress when travelling on a journey’ (paragraph 18).

41. Judge Hemingway held ‘so long as it can be demonstrated that the passive presence of another person is sufficient, on the facts, to avoid overwhelming psychological distress being experienced by a claimant when attempting to follow the route of a journey, then points may be scored under the two relevant descriptors’ (paragraph 20).

42. ‘It has to be borne in mind that the necessary investigation and analysis concentrates upon the nature of the claimant’s disability. The focus is, in general terms, upon the impact of the mental health condition in following a familiar (or indeed an unfamiliar) route. The test is general in nature so that it does not contemplate consideration of particular or specific journeys. So, a broad assessment of the ability to undertake familiar journeys is what is required. Viewed from that perspective an ability to manage, without another, a very limited number of specific journeys as is the position of this claimant according to his evidence, will not preclude him establishing entitlement to points under 1f’ (paragraph 21).

43. Judge Wikeley held in [2019] UKUT 181 (AAC) paragraph 11 that ‘the FTT erred in law in its approach to mobility activity 1 (planning and following journeys). ‘The FTT’s exclusive focus on the Appellant’s ability to drive meant that it neglected to address the representative’s argument that the Appellant could not cope with public transport. Although the PIP Assessment Guide Part 2: The Assessment Criteria (DWP, November 2018) is in no way determinative (see SSWP v IV ((PIP) [2016] UKUT 420 (AAC)), I note that it states that “A person should only be considered able to follow an unfamiliar journey if they would be capable of using public transport – the assessment of which should focus on ability rather than choice” (p.111).

44. By the same token, as part of the overall and holistic assessment, a claimant’s ability to plan and follow a journey on foot must be considered (see MH v SSWP (PIP) [2016] UKUT 531 (AAC); [2018] AACR 12 at paragraphs 37 and 44)’.

45. Judge Hemmingway held in MC v SSWP (PIP) [2019] UKUT 264 (AAC) that ‘The tribunal’s statement of reasons for decision (statement of reasons) is, and I say this without condescension, flawless apart from the one discrete issue I identified when granting permission. But it did appear to limit itself, with respect to the claimant’s ability to manage familiar journeys, to a consideration as to whether she could manage short ones. Mr Whitaker says that that is to impose a limitation as to its enquiry which is not justified by the terms of the legislation’ (paragraphs 10 – 12).

I am still finding this rather muddling!  It does seem to take us a step further, in that, in considering 1(f) the decision maker has a duty to look at, at least, the ability to use public transport or travel by foot, not just in a car, and it is also clear that “familiar” journeys do not have to be short journeys.  It seems to me that the distinction between familiar and unfamiliar is to do with the cognitive (and possibly emotional) ability to plan and undertake a new route, rather than repeat a journey regularly made and, in a sense already learned.  In that case, I think the ability to use public transport would need to be considered - otherwise, what happens if a car breaks down or is not available?  The route is known to the claimant, and they could cognitively plan it, but they can’t get themselves to follow it without the help of another person, whereas someone without that disability would find another means of getting that familiar journey done.

The difference between a familiar and unfamiliar journey is not necessarily limited to the cognitive and emotional. In the case of sensory less it would also be environmental. That is to say that DWP tend to a simplistic view that a person with sensory loss will understandably have issues on unfamiliar routes whether on foot or public transport etc. This ignores the fact that sensory loss is environmental and will thus impact the ability to folllow familiar routes just as much.