Mobility activity Planning and following journeys

Descriptor 1(d) for this activity awards 10 points for someone who cannot follow the route of an unfamiliar journey without an aid.  The Assessors Handbook is explicit that it is the ability to use public transport that counts.

So someone who could drive to an unfamiliar place but who absolutely needs another person to accompany them on public transport will be awarded 10 points. 

Where does this leave someone more severely disabled so that they cannot follow the route of an unfamiliar journey, using public transport, at all, even if a person or aid were available? 

And what about the more disabled person who cannot follow the route of a familiar journey using public transport?

We naturally move on to 1(e) which awards 10 points for someone who cannot undertake any journey at all.  However, it is not clear whether this journey must involve public transport but Where does it leave someone who cannot follow the route of a familiar or unfamiliar journey at all, if it involves public transport?

So does my client, who can drive her son to school daily and pick him up, but would suffer severe psychological distress if she had to do so by public transport end up with no points? 

I think she may fall between two stools.  If she were less disabled, and so could manage public transport if accompanied she would score 10,  If she were more disabled and could not drive anywhere either she would score 10. 

However, unless the definition of “journey” in 1(e) does include public transport, she scores none. 

Any suggestions? 

Ruth

Hi Ruth. I never thought that I would say this about the Assessment Guide, for what it’s worth, but it actually actually helps here:

“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. “

i.e. if they can’t use the bus for an unfamiliar journey, accompanied or not, they score against 10 D. Using public transport is just one part of it though IMHO, I would be pretty unsure of arguing 10D in front of a tribunal where the person couldn’t get the bus due to anxiety but was perfectly happy to walk or cycle to unfamiliar places, for example. My take on the unfamiliar/familiar bit is there is an assumption that if you can’t follow a familiar journey you would be unable to follow an unfamiliar one. May not always be the case in reality but I think that is the assumption.

I think that the ability to drive is more problematic in terms of planning and following journeys, familiar and unfamiliar. How can you be unable to plan and follow a journey if you then go ahead and drive it? So long as you do so safely and reliably for the majority of the time of course and don’t just drive around aimlessly for ages getting nowhere.

Also, (and I’m sure that you have written it this way for the sake of fluency of the post) but you should be starting at 1F and working backwards rather than the other way round. We aint Atos after all!

just had a horrid thought in terms of people driving, after reading billy’s post

would it be taken that a satnav is an aid or adaptation?

The car thing is interesting. I think a lot of people assume that if you drive then you can’t possibly qualify under under this head. However, it will still come back to regs 4 and 7.

I think we have to remember the assessors guide is NOT law.  Given the caselaw and the focus on navigating I think it will need to be focused on why someone cant use public transport.  So for mental health if you cant use public transport without someone with you due to anxiety but are perfectly capable of knowing which bus to get, where to get on and off - so can navigate.  But if you are if such a state that the person with you needs to take over the knowing where to get on and off etc then you cannt follow the route of an unfamiliar journey.
Well that’s my take on it.

Thanks for all the comments.  I think they partially reflect that there is no discernible coherent progression in the descriptors for this activity. I suppose what I am trying to work out is why the stipulation of “public transport” should apply to one descriptor and not the others. (Granted that Guide is not legislation, I still would like to understand the reasoning behind it.)  This stipulation is helpful when considering 1(d) but why would it not apply to other journeys? A familiar journey is not necessarily shorter

I am not too worried about the sat nav being an aid, because it wouldn’t then rule out 1 (f).  It wouldn’t even rule out   1 (d) as sat navs can be set to work for walking, public transport etc. .  The person would actually qualify under either 1 (d) and 1 (f).

Although I really can’t see a logical progression in the descriptors, either (a) to (f) or (f) to (a)  I agree that it works better if we start with 1 (f) and work backwards.  Applying it to my own client…..

1(f) If the familiar journey has to be by public transport or walking she scores 12.  If not, she does not meet the descriptor.

1(e)  If the journey has to be by public transport or walking she scores 10. If not, she does not meet the descriptor.

1(d) This journey has to be by public transport.  She never does this, but if we could establish that she could do it only if another person was there and the help is not just reassurance but following the route,  then she scores 8.

1(c)  She does not meet the descriptor

1(b) Unless the journey has to be by public transport, she manages to get to the school twice a day so does not meet the descriptor.

1(a) If the journey has to be by public transport she does not meet the descriptor.  If not, then she can do this by car and meets the descriptor.

I also agree that we always need to be aware of regs 4 and regs 7 and we ignore these too often - but in my client’s case they won’t help. She is safe in the car and she can do it over 50% of the time.

So, still pondering !

Ruth

If you want to understand the reasoning behind the guidance then I think what you’re looking at is simply ministerial interference. Simply put, it’s politicians saying “we want the law to mean this regardless of what the law as written says; regardless of caselaw and regardless of what one of my colleagues may have said in Parliament.”

In terms of the 50% stuff I think clarity is required. If a person makes 10 journeys a day and 2 are in a car does that not take us towards a position where they cannot make that driven journey more than 50% of the time, subject to the specific circumstances of the case, or are we starting from an assumption that if a person gets in a car and completes a journey in a car then they can do that 100% of the time regardless of the fact that it constitutes only 20% of their journeys?

The Assessment Guide would have it that:

“A scoring descriptor can apply to claimants in an activity where their impairment(s) affects their ability to complete an activity, at some stage of the day, on more than 50 per cent of days in the 12 month period”

but it then goes on to contradict itself with statements like:

“For example, consider a claimant who manages to walk 5 minutes by herself to collect her child from school each weekday despite her anxiety. She doesn’t need any support or assistance to do this, but does not leave the house on any other occasion without someone else with her. She is able to make a single journey 5 days week without prompting, so would satisfy mobility 1a.”

Which illustrates your point rather nicely Mike. The DWP clearly don’t know the answer to the question which is why there is so much variability in decision making and the whole issue of planning and following journeys is so unpredictable when it gets to appeal.

I can’t see anything in the Regs that clarifies it.

repeatedly and to an acceptable standard - so the DWP are clearly wrong because she cannot do it

Ruth Knox - 21 June 2016 12:31 PM

..I think they partially reflect that there is no discernible coherent progression in the descriptors for this activity.

There is a logical progression.  It’s the one identified by Judge Agnew in SSWP v RC and it’s almost certainly correct.  Your client should not need to show that she is so anxious using public transport that she is effectively disorientated before she qualifies for 1(d).  The fact she may have to do so before a FtT at present is a consequence, as we know, of the way “follow the route” has been incorrectly defined by a majority of UT Judges.  I’m surprised there hasn’t been more UT caselaw on this given the glaring error in the majority’s view.

Welfare Rights Adviser - 21 June 2016 02:45 PM

repeatedly and to an acceptable standard - so the DWP are clearly wrong because she cannot do it

Judge Hemmingway agrees with you in TR v SSWP at para 34:

34.    The key to all of this is the definition of repeatedly.  In the examples above, it cannot properly be said that a claimant is able to wash, dress and attend to his or her toileting as often as the relevant activities are reasonably required to be completed if he or she is obliged to wait for a disruptive period of time until painkillers take effect.  It cannot properly be said that a claimant is able to follow the route of a journey repeatedly if he or she cannot do so for a part of each day such that the claimant is obliged to live a restricted lifestyle. 

Tom H - 21 June 2016 04:32 PM

In which Agnew said the logic behind the progression was extraordinary, ironically:

It also seems to me to be extraordinary that a person who cannot undertake any journey because it would cause overwhelming psychological distress (Mobility Activity 1.e) gets only 10 points, whereas a person who can go out and follow a journey on a familiar route with another person (Mobility Activity 1.f) gets 12 points – so the permanently housebound gets less points that the person who can sometimes go out.

The Government response to the consultation on the PIP assessment criteria and regulations gives the DWP view on this:

We believe that individuals who are unable to leave their homes as a result of overwhelming psychological distress will face additional costs and barriers and that therefore a high level of points should be awarded in recognition of these extra costs. However, we believe that individuals who can leave their homes but require considerable support to do so, such as needing constant supervision or to take more journeys by taxi, may face even higher extra costs and barriers, and that this reflects a higher overall level of need. We therefore consider it appropriate to award them higher priority in the benefit.

He called descriptor 1(e) “extraordinary” for its potential to award fewer points than 1(f) but otherwise the descriptors had a “logical progression”.  I think the DWP have misunderstood Judge Agnew’s analysis since, not in the response which you quote from Billy, as that is no more than a re-statement of Parliamentary sovereignty.  But in HL v SSWP before Judge Ward they completely misrepresent Agnew’s analysis to hide, as I say, the glaring weakness in their own case.

Edit: And of course the irony is that 1(e) itself was introduced to correct an anomaly in section 73(1)(d) SSCBA which had produced the result that those who could not be persuaded to take advantage of the faculty of walking even with guidance and supervision would not qualify for LRM.  So 1(e) got rid of one anomaly and potentially created a new one in the process.  That doesn’t weaken Judge Agnew’s analysis as I’ve seen suggested elsewhere.  It wouldn’t be the first law that was anomalous yet perfectly valid.

As it applies to your client Ruth, my take would be that the public transport stuff is a red herring unless out of necessity she makes the majority of her journeys by public transport. If most of her journeys are done in the car, she can manage this fine and she rarely needs to get about by other means, I think that she is struggling to meet any descriptor except 1A. However, if she only uses the car to make the odd journey and makes lots of other journeys by public transport, walking, etc., and she requires support to make these, then she should score.

Another questions here is what else does she use the car for? And what happens when she parks up? Does she then walk from the parking spot to the shops, walk up and down the streets, detour round the local drunks and back to the car again? In which case she has even more of a problem scoring. Or is it simply drive, drop off kids, drive back home and only go out to shop, appointments, etc., when her sister/carer/partner goes with her?

Ruth, the Pip assessment guidance hasn’t been updated to take account of the DWP’s concession in HL v SSWP, which Judge Ward accepted, that someone who is so psychologically distressed that they are no longer able to physically navigate may be classed as not able to follow the route of a journey.  The part of the guidance you’re referring to is this I think:

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.

Any accompanying person should be actively navigating for the descriptor to apply. If the accompanying person is present for any other purpose then this descriptor will not apply. (my emphasis)

The guidance also defines “to follow” as:

the visual, cognitive and intellectual ability to reliably navigate a route..”

So even if the person is distressed using public transport the guidance does not recognise any help s/he needs unless it helps with physically navigating.  If and when the guidance is updated to account for the above DWP concession in HL, it’s still likely to consider as relevant to descriptor 1(d) and (f) only that help needed from the “accompanying person” which assists the claimant with navigation, although it will undoubtedly accept that the person may, at the same time, also be calming and providing the traditional forms of support common to LRM of DLA (such forms of help may, actually, count indirectly if they’re considered a precursor to the claimant being able to navigate again) 

Thing is, Judge Jacobs’ definition of “follow” is, with respect, almost certainly wrong so the whole guidance is wrong.

The reason the guidance mentions public transport I think is that it provides a reasonable example of a planned journey which involves having to navigate.  Should the bus take a detour and the person could not get back on the route to finish it then they might under the guidance’s interpretation of “follow” score points.  Whereas with driving it might be arguable that the reason for not following the route is that your concentration was both on driving and on trying to navigate when the test is of the latter only.  Still, I’m not sure it’s right to make public transport the “only” test.  But again, it’s all premised on the definition of “follow” being correct.

Edit: Once a 3 Judge panel of the UT restores mental health factors as relevant to the claimant’s ability under descriptors 1(d) and (f) to follow a journey then ability to get from A to B using public transport will obviously be relevant.

Two corollaries to this.

1) In most cases I believe the DWP analysis re: the points distribution on these 2 activities is logical. A person who is effectively housebound but who may need to go out occasionally is going to be using either door to door transport or a taxi so they will face additional costs. Their costs per journey will be high but there will be few journeys. A person who is able to leave but only with support will in most cases inevitably do so more often. Their cost per journey may be marginally lower but the overall cost will be more. I’m not saying I like that analysis but I do think it’s founded in reality.

2) It concerns me that we have a definition which simply says “... the visual, cognitive and intellectual ability to reliably navigate a route..” Anybody want to offer an explanation as to why people with a hearing impairment would have no difficulty following a route?

Reg 4(2) Pip Regs

“C’s ability to carry out an activity is to be assessed –

(a) on the basis of C’s ability whilst wearing or using any aid or appliance which C normally wears or uses; or

(b) as if C were wearing or using any aid or appliance which C could reasonably be expected to wear or use”

“The ability to move physically” - definition of mobility in Collins dictionary

Re-read your posts Ruth.  If driving along familiar and unfamiliar routes addressed the impaired mental function responsible for the psychological distress then yes, of course, that would have to be taken into account, under Reg 4(2)(a) if that is what the claimant normally does.  The aid being the car.  However, I think this activity has to assessed objectively reasonably with the result that the claimant cannot reasonably be expected to use the car for every journey under 4(2)(b).  And that’s not just because of the cost of running a car or the fact some journeys may not be easily accessible by car or that cars break down and might not always be available.  I think the test implicitly envisages that “the ability to move physically” involves taking advantage of the faculty of walking where a person is able to walk.  And that’s because in the real world not all moving about is normally done by car and Pip is supposed to help with the extra costs of disability in the real world.  In the case of having to be accompanied on foot or using public transport then it’s the real or notional cost of the service provided by the accompanying person. 

The “hard case” is where a claimant, as a matter of fact, does adjust their life by using the car for most journeys.  Does the Pip 50% rule look at reality or assess that person on how they’d manage on a daily basis if exposed to the very things which they have adjusted their life to avoid?  I think objective reasonableness requires the latter. 

Edit: in that real world there are almost certainly journeys that above claimant chooses not to do, eg because they involve getting out of the car and walking, so it would be no good just looking at what the person does but what they do not do: the journeys they do not make.