Caselaw on unable to walk

Three (possibly four) tribunals have failed to get to grips with this so I am keen to bottom it and have been given 7 days by UT to make a further submission.

Client has CFS. Walking ability breaks down as follows:

1) Broadly a 6 week cycle of illness. 2 to 3 weeks completely bed bound. 1 to 2 weeks recovering but pretty ill in that time and 1 maybe 2 weeks where clt. is functioning albeit with CFS and other conditions.

So, for me, 2 to 3 weeks where the client is debilitated and unable to walk at all i.e. 33 to 50% of time.

2) When the client is capable of getting out of bed and walking indoors or out his walking ability is hugely variable distance wise but consistent time and speed wise. However, the thing which brings him to a halt is not tiredness/exhaustion/CFS. Client has a slipped disc and walks with a stick. It is the pain from this which brings them to a halt. It has been argued that they’re virtually unable to walk but the distance described vary from 7 yds (in the absence of severe discomfort) to 160m and I think this argument is a bit of a red herring because of the following.

3) Regardless of where the claimant is in their cycle of ill health, they need to go to sleep from approximately midday to around 5/6pm every day. The reason for this is exhaustion from their CFS.

At present I’m not sure anyone has got to grips with my argument that the claimants evidence of pain being the thing that stops them walking when they walk is not at all inconsistent with my assertion that the length of time they are effectively unable to walk at all means they should qualify via unable to walk or virtually unable to walk.

So, I am looking for

- thoughts on unable versus virtually given the above scenario.
- supportive caselaw, specifically around the idea that if a claimant has no choice but to sleep because of CFS related exhaustion that should count as a period when they are simply unable to walk or, in the alternate, should contribute to a judgement that, taken as a whole, their walking ability is so limited that they should be considered virtually unable to walk.

Can benefit from time to time from facilities for enhanced locomotion etc. although that was put at issue so my further sub. will need to address that. I don’t see that as any impediment though.

Anyway…

See the commentary to subsection (1) of section 73 SSCBA 92 in volume 1 of the legislation books, in particular, the note on CDLA/496/2008.  However I think the main relevance of that case for present purposes is its confirmation in para 11 that the interpretation of the phrase “any period throughout which” by the House in Moyna in the context of the care component applies equally to the mobility component.  Therefore, whether someone is virtually unable to walk where their condition fluctuates is “an exercise in judgment rather than an arithmetical calculation of frequency.”

I’m not sure that the claimant cannot be unable to walk and vutw in the same “period”, although obviously not at the same time.  I read section 73(1)(a) as arguably allowing episodes of inability and virtual inability to walk to be added together to form one period.  That’s because despite subsection (1)(a) using the word “either”, both unable to walk and vutw still appear in the same sub para (a).  Having said that, it might not really matter given a non-mathematical approach applies.  Eg, the fact someone is unable to walk 40% of the time, vutw 35% of the time and able to walk 25% is not necessarily going to prevent a finding that he is unable to walk “throughout” the period of the award.  Although, the person would still have to be able to benefit most of the period from enhanced facilities for locomotion (see below).

However, I’d want to clarify whether the client is unable to walk due to exhaustion during the phase of his disability when he’s “bedbound”.  If he could walk even a little then I’d suggest he’s vutw for some or most of that period rather than unable to walk. 

I agree that his having to sleep for 5-6 hours every day is capable of representing vutw for the entire period of any award using the above “exercise in judgment” rather than the mathematical approach, ie the fact he may be able to walk more than 50metres in, say, the other 8-10 waking hours of the days concerned is not critical.  And agree also that, if correct, it makes the above stuff a red herring.

A case involving CFS/ME with helpful comments re enhanced facilities for locomotion is CDLA/544/2009.  In the present case, it seems your client is able, at worst, to take advantage of those enhanced facilities for 4 out of the 6 weeks which would appear to satisfy the requirement in section 73(8) that you are able to do so “most” of the period of the award.  I say “at worst” because he arguably satisfies 73(8) for all 6 weeks of each cycle on the grounds that the failure to walk during the 2 weeks when bed bound is clearly caused by physical rather than mental health factors, holding out the possibility that he could use enhanced facilities if physically assisted to do so.  That appears to have been the case of the appellant with CFS in CDLA/544/2009. 

It’s not clear whether exertion leading to serious deterioration in health found in Reg 12(1)(a)(iii) is inability to walk or vutw.  I’m assuming you’ve considered that option also Mike.

Mike you report

Client has CFS. Walking ability breaks down as follows:

1) Broadly a 6 week cycle of illness. 2 to 3 weeks completely bed bound. 1 to 2 weeks recovering but pretty ill in that time and 1 maybe 2 weeks where clt. is functioning albeit with CFS and other conditions.
So, for me, 2 to 3 weeks where the client is debilitated and unable to walk at all i.e. 33 to 50% of time.

2) When the client is capable of getting out of bed and walking indoors or out his walking ability is hugely variable distance wise but consistent time and speed wise. However, the thing which brings him to a halt is not tiredness/exhaustion/CFS. Client has a slipped disc and walks with a stick. It is the pain from this which brings them to a halt. It has been argued that they’re virtually unable to walk but the distance described vary from 7 yds (in the absence of severe discomfort) to 160m and I think this argument is a bit of a red herring because of the following.

3) Regardless of where the claimant is in their cycle of ill health, they need to go to sleep from approximately midday to around 5/6pm every day. The reason for this is exhaustion from their CFS.

I had a case with a client with CFS who could walk 200 metres shopping but then had to rest for several hours. We won HRM on the back of CDLA 805/1994 several years ago, This may be of use but you would need to check case law for any developments.

This stated

A tribunal is entitled to conclude that a claimant is not virtually unable to walk, if he can walk without severe discomfort for 400 yards at a reasonable, albeit slow, pace and, although obliged then to stop-for, say, five minutes to recover, can afterwards walk without severe discomfort for a further 400 yards at the same pace However, it would not be inconsistent were the same tribunal to conclude that a claimant was virtually unable to walk if, after walking the first 400 yards, he had to wait for two hours before being able to walk a further 400 yards.

try this:

CE 5661 2014

which i’ve just read from here: http://www.osscsc.gov.uk/Aspx/view.aspx?id=4653

should certainly assist…...

Thank you all. Done my job for me there. I shall plagarise shamelessly :)

Not least Claire because my UT case is actually before… Judge Markus!!!

Mike Hughes - 02 October 2015 01:09 PM

Thank you all. Done my job for me there. I shall plagarise shamelessly :)

Not least Claire because my UT case is actually before… Judge Markus!!!

happy to help :-)

lucky - it was just random that i went there ...

Sub in. Looks uncannily similar to this thread 😊