Mobilising

We all know that the following descriptor scores a person 15 points, or indeed puts them into the support group. 

“1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used. 
1(a)
Cannot either:
(i) mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;
or
(ii) repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion.”

But what does it mean?

Let’s start with the either/or bit.  It seems to me that cannot [either (i) or (ii]
means the same as [cannot (i)] and [cannot (ii)].  A recent Upper Tribunal decision has confirmed this in relation to standing and sitting. 

So if you can do (i) but can’t do (ii) you don’t score the points. 
Similarly if you can’t do (i) but can do (ii) you don’t score the points. 

(i) – Clearly if someone can walk 60 metres without stopping they can do this. 

(ii) – This heading does not mention stopping.  Someone who can walk 30 metres, then stop for a few seconds, then walk another 30 metres, can ‘mobilise 50 metres’.  If they can repeatedly do this with a couple of minutes rest between each occasion then it seems they can do this activity.  So for example someone who can walk 180 metres in 3 sets of 60 metres but with a brief stop every 30 metres, and who takes 7 minutes for the whole distance might be found to be able to do this.  . 

In either case the person does not score the points. 

Obviously the same logic will apply to descriptors 1(b) and 1(c).

I think that this descriptor is structured entirely differently than the standing/sitting one.  In my view if it’s accepted that someone can only walk 50 metres or less before he needs to stop then he’s in the support group.  I agree that (B) is more open and would only look at the time it took someone to walk 100 metres even with a stop providing that stop was after 50 metres.  (A) and (B) should be read disjunctively and not conjunctively.  The same would apply to the WRAG descriptor.

I think stopping is relevant to the (ii) descriptors of Activity 1, ie the cannot repeatedly mobilise 50/100/200 metres descriptors.  Once factors such as a lack of fitness and laziness are ruled out, stopping is likely to be a sign of the requisite “significant discomfort or exhaustion”.  But I don’t think it follows that you need to stop in order to satisfy the (ii) descriptors.  Whereas people might normally be expected to stop where they are in severe discomfort, eg for DLA, I suspect more will be able to struggle on despite being in significant discomfort for ESA purposes.

If caselaw holds that severe discomfort in the context of DLA does not have to equate to excruciating agony but is likely to be more than mild/moderate discomfort, significant discomfort is likely to be somewhere between mild and moderate discomfort, though I appreciate the benefits concerned have entirely separate tests.

The (ii) descriptors omit any reference to “level ground” in contrast to the (i) descriptors.  That suggests that the test for repeatedly mobilising includes inclines and undulating conditions.  Obviously the chances of becoming exhausted increase the more difficult the conditions become.

A reasonable timescale as appears in the (ii) descriptors has also yet to be defined by caselaw.  I mentioned in a separate thread the case of my client who could walk about 0.5 - 1 mile stopping every 150m on his way to and from the shop in the mid morning but as a result of such exertion had to go to bed for at least 30 mins in the early afternoon.  He arguably satisfied 1(a)(ii), ie not able to repeatedly mobilise 50m within a reasonable timescale. 

It’s unclear whether “repeatedly.. within a reasonable timescale” is anything other than the reasonable regularity test established by caselaw and applied to IB.  If not, then the test is likely to be: can a claimant mobilise the requisite distance when called upon to do so? 

I don’t think that the reference to “reasonable timescale” qualifies “50 metres”.  Otherwise that would potentially allow, as Victor suggests, stops within that timescale to be disregarded.  Instead, I think the phrase “because of significant discomfort or exhaustion” qualifies all the words that precede it.  So that, as stated above, having to stop should not be disregarded if it’s a sign of significant discomfort or exhaustion.

As far as the either/or point is concerned, Judge Wikeley was careful to restrict his interpretation to Activity 2 (see para 39 of CE/1516/2012)  I think the context of Activity 1 is different.  If you could only score points by satisfying both descriptors then it would make the (ii) descriptors otiose.  It is implicit in the (ii) descriptors that they are capable of accommodating those who can walk more than the requisite distance on a single occasion without stopping, ie those who do not satisfy (i). 

In fact CE/1516/2012 despite what is said at para 39 provides obiter support for treating Activity 1 differently to Activity 2.  At para 20 Judge Wikeley suggests his decision on the interpretation of “either/or” may have been different if the Activity 2 descriptors had been drafted similar to the hypothetical descriptors at para 19 of his judgment. 

I’d suggest that the structure of the Activity 1 descriptors has more in common with those in para 19 than with the actual Activity 2 descriptors.