PIP mobility on mental health grounds

That was pretty much my rerading of it Sam W.  It is clear they intend the same degree of loss of function to be treated differently depending on cause, because of the inclusion of ‘overwhelming phsychological distress’ in descriptor c which has the effect of excluding someone with depression who requires prompting to undertake a journey due to lack of motivation, rather than because it makes them anxious.

I was just hoping someone had come up with a clever argument other than ‘go on go on go on go on you know you want to make an award’.  ;-)

I’m falling back on the ‘Mrs Doyle’ approach currently I have to say.

nottsadvisor - 06 August 2015 02:09 PM

I was just hoping someone had come up with a clever argument other than ‘go on go on go on go on you know you want to make an award’.  ;-)

I’m working on it… the basis is how can one be said to have followed a route if they did not successfully manage to get from A to B. Alll well and good if their cognition and memory is intact but if they panic and get a taxi home before they get there how can they have followed that route?

The route becomes entirely arbitrary if there’s no destination.

Falling on deaf ears so far mind but in both those I’ve repped it’s turned more on motiviation than ability so not had a good example to test this.

I read the Jacobs’ decision as ruling out mental health full stop as the cause of the person’s inability to follow the route of a journey, including even those situations where a person is, eg, so anxious that s/he loses the ability to navigate.  Under Jacobs’ reasoning, such a claimant would, at best, score 1(b).  If it was possible to distinguish as you suggest Sam between anxiety which prevents someone following an unfamiliar journey and that which, whilst injurious to health, doesn’t, I think it would be a nightmare evidencing.  All a person would have to do is assert that the panic, disruptive thoughts etc were sufficient to stop them following the journey to such an extent that it would take them more than twice as long as a non-disabled person.  That would probably cover the majority of those who experience panic attacks.

And whilst I agree that DLA high rate mob was biased against those with mental health conditions, severe mental impairment excepted, compared to physically disabled people, those with learning disabilities and, except for a very small number of sight impaired claimants who qualified late in the life of DLA, sensory impairment were similarly restricted to low rate mob.

I don’t think Jacobs is right, however.  Even if he were, it’s not clear using his logic why someone who got lost due to mental health factors and couldn’t as a result “get back onto the route” would not then score 1(c), ie unable to plan a journey.  Note, 1(c) qualifies “journey” with “a” rather than,  as elsewhere in activity 1, “any”.  That suggests that even if a claimant was able to plan familiar journies without a problem, if they subsequently got diverted on such a journey, or if they got lost on an unfamiliar one, and couldn’t re-route/re-plan themselves without help, they could score 1(c).

Sir Crispin Agnews’ decision appears more consistent with the ordinary meaning of “undertake” which Oxford defines as: “Commit oneself to and begin (an enterprise or responsibility); take on”.  It is then possible to see even 1(e) as not inconsistent with Sir Crispin Agnew’s approach.  The person needs prompting (defined in Sch 1 of Pip Regs as “reminding, encouraging or explaining by another person”) to begin or take on the journey.  1(b) and 1(e) are, therefore, largely concerned with the period before the journey begins as well as its beginning.  If that’s correct, there simply isn’t the type of contradiction that Jacobs’ suggests there is between “undertake” and “follow”.  The latter is only concerned with the journey after it’s begun, whereas the former covers the period before that.  If anything, 1(e) legislates away the unfavourable DLA caselaw which held that LRM could not apply if no amount of encouragement could make someone undertake the faculty of walking.

Finally, it’s not clear why mob descriptor 2(c) would not apply to those unable to move about due to anxiety.  2(c) does not, unlike several other activity 2 descriptors, use “aided or unaided” but merely “unaided”.  Aided is defined as including “supervision, prompting or assistance”.  So 2(c) is satisfied if a person cannot safely and repeatedly move more than 50 metres without supervision etc.  Safely is defined in Reg 4 as “in a manner unlikely to cause harm to C…either during or after completion of the activity” and repeatedly as “as often as the activity being assessed is reasonably required to be completed”.  I might be able to cover much more than 50 metres on all familiar journeys but what if I had to go to an unfamiliar place and would cause myself harm due to anxiety?  If that would be the case at least 50% of the time then I cannot see why 2(c) wouldn’t be satisfied?

Edit:  And the definition of “undertake” perhaps explains why 1(b) & (e) do not mention the journey’s “route”.  After all, if you cannot even start the journey there’s no point considering its route.

Mr Finch - 09 July 2015 11:55 AM

And, more happily, before the ink was dry on Judge Jacobs’ case, here is an entirely conflicting decision on the same point by Sir Crispin Agnew:

http://www.osscsc.gov.uk/Aspx/view.aspx?id=4583

I was looking at this decision today and noticed that it is described as a “Corrected Decision (2)” and was “corrected at 14/08/15”. I can’t find my original copy of the judgement - anybody know what has been corrected and why?

Billy Durrant - 10 September 2015 04:53 PM

anybody know what has been corrected and why?

Billy

I’ve cross referenced the corrected decision against a paper copy of the un-corrected one and the only change appears to be the renumbering of the Activity.  The following line has been added to para 1 of the decision:

It should be noted that in the Secretary of State’s Submissions,  Mobility Activity 1 “Planning and following journeys” is referred to as Activity 11, but I will call it Mobility Activity 1.

All previous references to Activity 11 in the judgment are, therefore, changed to Activity 1.  That’s all.

Thanks Tom, mystery solved

Tom H - 06 August 2015 04:30 PM

>>>snip>>>  After all, if you cannot even start the journey there’s no point considering its route.

I’ve just said that in an application for leave to appeal. I forgot to read back over this thread but I’m glad my analysis concurs with yours; bar dragging the dictionary out.

One additional point… to follow a route to a reasonable standard you probably need to get to the destination without getting (too?) lost along the way.

Despite the pessimistic outlook for mobility on mental-health grounds following the Judge Jacobs decision, I have just had a successful outcome at FTT, at which the Tribunal saw fit to award descriptor 1(d), “Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid”, (10 points), on the basis of severe anxiety. The client in this case has borderline personality disorder and will not leave her house without another person, even to go 100m to the local shop.

So far DWP have not requested SoR! So it’s fingers crossed!!!!

Benny Fitzpatrick - 24 September 2015 08:51 AM

Despite the pessimistic outlook for mobility on mental-health grounds following the Judge Jacobs decision, I have just had a successful outcome at FTT, at which the Tribunal saw fit to award descriptor 1(d), “Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid”, (10 points), on the basis of severe anxiety. The client in this case has borderline personality disorder and will not leave her house without another person, even to go 100m to the local shop.

So far DWP have not requested SoR! So it’s fingers crossed!!!!

I’ve had Tribunals blow both ways.

It would be interesting to know how other people are getting on with these appeals as it might indicate whether a consensus is forming with the Judiciary…

Interestingly,  DWP just revised one of ours in client’s favour at the 11th hour.

BENNY FITZPATRICK - 24 SEPTEMBER 2015 08:51 AM
Despite the pessimistic outlook for mobility on mental-health grounds following the Judge Jacobs decision, I have just had a successful outcome at FTT, at which the Tribunal saw fit to award descriptor 1(d), “Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid”, (10 points), on the basis of severe anxiety. The client in this case has borderline personality disorder and will not leave her house without another person, even to go 100m to the local shop.
So far DWP have not requested SoR! So it’s fingers crossed!!!!

Things were looking bleak in Hull but the resident full time Judge told me last week ” you have won that argument” just as I was gearing up for what I expected to be a fruitless argument. This particular Judge had been adamant for months that mental health was not to be counted for 11d or 11f but she awarded 12 points for 11f due to severe anxiety. Stole all my thunder but I am happy for it to be nicked. So, the consensus in this area is now that Judge Jacobs is wrong.

Darren Hull WRS

I won an appeal in Stockport a few weeks ago where a client was awarded 11d due to severe anxiety. 
PIP have paid up with no problem.

JoW - 22 July 2015 01:29 PM

I’ve got 3 PIP renewal cases at Mandatory Recon stage at the moment regarding these issues re: PIP and mobility component for mental health issues.

For 2 claimants I did their first claims (in the very early days of PIP) and both got Enhanced rate Mobility on descriptor 11F (12 points)  - for “Cannot follow the route of a familiar journey without another person….”

Both have now been refused as only awarded 4 points (for descriptor 11b) despite nothing having changed.

A 3rd claimant who got ER Mobility in her first claim as she got 8 points for physical mobility problems and 4 for 11b for MH problems lost the 4 points for 11b on renewal claim (again I did first claim and nothing had changed).

All 3 have Motability cars. Does anyone know what happens with Motability whilst the mandatory recon Is in? I presume they will lose the car?

Thanks

Past experience of this is that the vehicles have to be returned.  However, on losing their Motability they can receive a potential £2000.00 lump sum to source own vehicle/other transport. or £1000.00 pending lease agreement.

Hello

Where is this info from re: £2000? Is this just where DLA HR Mob is lost though? I thought this was just temporary transitional help? My cases are all PIP ER Mobility ones.