Upper Tribunal (Administrative Appeals Chamber)

DA v Secretary of State for Work and Pensions (Personal independence payment – mobility activities : Mobility activity 1: planning and following journeys) [2015] UKUT 344 (AAC) (17 June 2015)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

 

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference SC024/14/02042, made on 7 October 2014 at Birmingham, did not involve the making of an error on a point of law.

Reasons for Decision

A.        The issue

1.         This case raised just one issue. For the purposes of personal independence payment Mobilising Activity 1, does the test of following the route of a journey include dealing with any personal interactions that occur along the route? I have decided that it does not.

B.        The claim

2.         The claimant made a claim for a personal independence payment by telephone on 31 July 2013. She completed a questionnaire setting out her difficulties. In the Going out section, she indicated that she needed help to plan or follow a route to somewhere she knew well and help to get somewhere that was unfamiliar to her. She also indicated that she was unable to go out because of severe anxiety or distress. She wrote:

I get lost a lot, but not always – only if it is a new place – I panic, I cannot concentrate, I cannot plan a route, I panic. It really helps to have someone with me and reassure me and encourage me to go out – doing this on my own is extremely stressful and exhausting. Anxiety, distress and exhaustion during and after the activity – shopping is really bad – I select stuff for the trolley – then go back to the car and someone else pays and brings the shopping to the car – if forced to do it myself I get exhausted and I drop items and it takes a long time to get over it.

In the Mixing with other people section, she indicated that she needed help to mix with other people and found this difficult because of severe anxiety or distress. She wrote:

PTSD – depression. I stay indoors as much as possible. The PTSD makes me feel I am in danger when I am not – causes extreme stress. Just walking on my own, I feel I am going to bump into people, I feel trees branches are going to fall on me. I walk pretending I am in a bubble. I panic when people come close to me. I feel more comfortable with a friend or family member. I don’t have good days this happens every day. I avoid mixing with new people. I feel I am going to get run over. I don’t like strangers trying to talk to me or saying hello. I get extremely stressed, I over react, I find it very distressing and it makes me very tired and I suffer fatigue.  

The health professional who interviewed and examined the claimant found that she had normal mental health and gave the opinion that problems with planning and following journeys either by car or on foot were unlikely. The decision-maker accepted that opinion. The final decision was that the claim was refused. The claimant scored two points for daily living activities (for dressing and undressing) and no points for mobility activities.

C.        The appeal to the First-tier Tribunal

3.         On appeal, the tribunal found that any difficulties with dressing and undressing were insufficient to score points. It found no relevant difficulties with the mobility activities, but did identify scores of 4 for engaging with other people face to face and 2 for making budgeting decisions. That was a total of six, which fell short of the 8 required for an award.

4.         In giving the tribunal’s reasons, the judge dealt with engaging with other people face to face and making budgetary decisions together. Isolating the parts relevant to engaging with people, the tribunal found that the claimant needed social support in order to be able to engage. The tribunal found:

·                The claimant avoided going out and speaking to people.

·                She had stopped cognitive behavioural therapy after the therapist touched her hand.

·                She had good understanding and orientation.

·                She was able to give her own evidence. [Her former husband attended with her as her representative.]

5.         On mobility, and omitting issues relating to physical problems with moving around, the tribunal found:

·                The claimant was able to drive and did so at least once a month.

·                She had not informed either the DVLA or her insurance company of any conditions that might affect her ability to drive.

·                She was anxious when out and worried that something bad would happen, but was able to use audio books to calm herself and managed this alone.

·                She had no form of learning difficulty or visual impairment that would impair her ability to plan and follow the route of a journey.

D.       Permission to appeal to the Upper Tribunal

6.         The claimant’s local CAB submitted an application to the First-tier Tribunal for permission to appeal against the tribunal’s decision. The tribunal refused permission on most of the grounds, but gave permission in respect of the mobility activity. The judge, who was not the judge who presided at the hearing, explained why she had given permission:

In relation to Mobility Activity 1d it is not appropriate to review the Tribunal’s decision because the application discloses an arguable question of law, namely whether the ability to follow an unfamiliar route without another person (descriptor d) includes an ability to engage with other people in the event of a need to ask for directions or help if lost.

The Tribunal had found that the appellant satisfied Daily Living Activity 9c so that she needed social support to be able to engage with other people. Mobility Activity 1d is specifically concerned with an unfamiliar journey. If the ability to follow the route of an unfamiliar journey includes an ability to complete the journey by interacting with other people in the event of taking a wrong turning or an unforeseen incident occurring, then the Tribunal made an error of law by failing to consider any inter-relationship between Daily Living Activity 9 and Mobility Activity 1.

If in contrast, Mobility Activity 1d only concerns the ability to understand and then follow a pre-planned route without consideration of any need to engage with others, then it is arguable that the Tribunal’s reasoning is sufficient.

7.         The judge referred to descriptor 1d, because that was the descriptor that the CAB had mentioned in the application. The representative accepted that the claimant could and did go out to places she knew, but argued that:

She cannot go to unfamiliar places on her own, due to her mental condition and her difficulty to speak or mix with other people. She may find herself lost in a new place and will be unable to approach someone to help.

Similar problems could arise even on familiar journey. There might be a diversion, for example, on account of an accident or road works, as a result of which the claimant might have to leave the usual route and could become lost having done so. Her difficulties would be the same as if she had got lost on an unfamiliar journey. So the CAB’s argument for descriptor 1d was also an argument for descriptor 1f.

8.         In the Upper Tribunal, Judge Wikeley gave case management directions and refused permission to appeal on any other ground. Before coming to the parties’ submissions on the appeal, I set out the relevant legislation.

E.        The legislation

9.         Personal independence payments are governed by the Welfare Reform Act 2012 and regulations made thereunder. In this case, the relevant legislation is Part 3 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (SI No 377) and, in particular, Activity 1:

Activity	Descriptors	Points
1. Planning and following journeys.	a. Can plan and follow the route of a journey unaided.	0
	b. Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to the claimant.	4
	c. Cannot plan the route of a journey.	8
	d. Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid.	10
	e. Cannot undertake any journey because it would cause overwhelming psychological  distress to the claimant.	10
	f. Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid.	12

 

Some of the terms used in those descriptors are defined in Part 1 of the Schedule. I need only set out those definitions that I refer to later:

‘assistance dog’ means a dog trained to guide or assist a person with a sensory impairment.

‘orientation aid’ means a specialist aid designed to assist disabled people to follow a route safely.

F.        The parties’ submissions

The Secretary of State

10.      The Secretary of State’s representative submitted that the tribunal did not go wrong in law. She argued that descriptor 1d assesses the claimant’s ability to navigate a route and not whether they need help to deal with problems that they may encounter in the external environment while doing so. It does not assess whether the claimant needs assistance for incidents that may occur while following the route. That is the natural meaning of the language used, which contrasts with ‘undertaking a journey’ in descriptors 1b and 1e. A route is a pathway rather than a place (R(DLA 3/05 at [22] and R(DLA) 1/03 at [7]). The descriptor is qualified by three forms of possible assistance – another person, assistance dog and orientation aid – of which the latter two could not assist with problems in the external environment. It would have been more natural for the descriptor to say simply ‘unaided’ if it dealt with those problems.

The claimant

11.      The CAB made a ‘no comment’ reply. The claimant’s former husband, who represented her before the First-tier Tribunal, has sent a physiotherapist report dated 22 April 2015, which sets out mobility problems. I do not doubt that the report is accurate. I am also willing to accept that it can be related back to the time of the claim for a personal independence payment. But it does not deal with the sort of mobility problems that come within Activity 1. If anything they come within Activity 2, but that is outside the scope of this appeal, which is limited to Activity 1.

G.       Analysis

12.      I accept the Secretary of State’s argument that descriptor 1d deals with navigation and excludes dealing with other difficulties that may be encountered along the way.

13.      The natural meaning of ‘follow the route of an unfamiliar journey’ is that it is concerned with navigation rather than coping with obstacles of whatever sort that may be encountered on the route. Activity 1 covers both planning and following a journey. Descriptor 1d, like descriptors 1a and 1f, deals with following the route of the journey. That assumes that the journey involves a route that has been planned. Difficulties that may arise during the journey, such as getting lost and asking directions or encountering crowds, are not difficulties with following the route. They may prevent the claimant getting back onto the route if lost or finding an alternative route to avoid some obstacle, but those are different matters. 

14.      This reading is consistent with and reinforced by the contrasts within the descriptors for Activity 1. The descriptors contrast the route of a journey (descriptors 1a, 1c, 1d and 1f) with the journey itself (descriptors 1b and 1e). And following the route of the journey (descriptors 1a, 1d and 1f) with undertaking the journey (descriptors 1b and 1e). The latter is used when the claimant could not embark on or complete a journey either without prompting or at all. The impediment in either case must be overwhelming psychological distress. That could be distress from going on a journey (such as might occur if a claimant has agoraphobia) or from contemplating or coping with difficulties that might arise on the route (such as might occur if a claimant has a fear of crowds). In contrast, the other descriptors are limited to one aspect of the journey, following its route. It would be inappropriate to interpret this more widely than its natural meaning. Doing so, would disrupt the structure of the Activity by incorporating issues that are properly covered, if at all, by other descriptors.

15.      So far, I am with the argument put by the Secretary of State’s representative. I do not, though, accept her argument that the qualifying words –‘without another person, an assistance dog or an orientation aid’ – are helpful. I accept that the descriptor has to be interpreted as a whole, but not in the way she suggests. There would be more force in her argument if the qualifying words included only the dog and the aid, because there is a limit to the sort of assistance that they can provide. But the possibility of being accompanied by another person undermines the argument, as the type of help or support that the person can provide is not limited in the same way as a dog or an aid. The argument has it the wrong way round. It is not that the qualifying words control or assist in the interpretation of ‘follow the route’. Rather, it is that those words limit the form of assistance contemplated from the person accompanying the claimant. In other words, the descriptor envisages a person who is helping the claimant to follow the route.

16.      As to the argument that it would have been more natural simply to qualify the descriptor with ‘unaided’, it is possible that the more extensive qualification used may remove any doubt about the form of aid that is permissible.

H.       Conclusion

17.      For those reasons, the tribunal was not in error of law by failing to consider the possible interaction of the activity of engaging with other people face to face and the activity of planning and following journeys.

 

Signed on original on 17 June 2015

Edward Jacobs Upper Tribunal Judge