Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Upper Tribunal case No.  CPIP/4572/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: E Mitchell, Judge of the Upper Tribunal

Decision:  The decision of the First-tier Tribunal (30^th June 2014, Newcastle-upon-Tyne, file reference SC 228/14/00246) involved the making of an error on a point of law. It is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the First-tier Tribunal for rehearing. Directions for the rehearing are at the end of this decision.

REASONS FOR DECISION

Introduction  

1. Ms L claimed Personal Independence Payment (PIP) but on 3^rd December 2013 the Secretary of State refused to make any award. Mrs L appealed to the First-tier Tribunal.

2. Ms L’s evidence to the Tribunal was that she had tendonitis affecting her left foot and ankle and was under the care of a “specialist in biomechanics”. The Tribunal found that Ms L could walk in excess of 200 metres with the aid of her crutches or a walking stick. That meant, so the Tribunal found, Ms L satisfied none of the PIP mobility descriptors.

3. I granted Ms L permission to appeal to the Upper Tribunal on the ground that the First-tier Tribunal might have erred in law by failing to make findings about her ability to move around unaided.

4. The important underlying issue in this appeal is an apparent inconsistency between different parts of the PIP Regulations as to the role played by aids and appliances in assessing mobility. On one interpretation, the First-tier Tribunal’s failure to make findings of fact about ability to move around unaided would be irrelevant. On the other, it would not.

The role played by aids and appliances in the PIP mobility assessment

5. PIP was created by Part 4 of the Welfare Reform Act 2012. Part 4 is framework legislation. Rather than providing for the PIP entitlement conditions itself, Part 4 authorises regulations to do this.

6. A person cannot be entitled to PIP mobility component at the standard rate unless “the person's ability to carry out mobility activities is limited by the person's physical or mental condition” (section 79(1)(b)). Section 79(4) provides that “mobility activities” means “such activities as may be prescribed for the purposes of this section” (“prescribed” means prescribed by regulations: section 95).

7. Section 80(1)(c) requires that “the following questions are to be determined in accordance with regulations”. One question is whether a person’s ability to carry out mobility activities is limited by the person’s physical or mental condition”. That question must be determined “on the basis of an assessment” (section 80(3)(a)). This is an assessment in the sense of a mental evaluation, rather than a physical examination. That is shown by the provision for regulations to require a person to participate in a “consultation”, to determine mobility limitations, and for a “negative determination” in the event of a failure to participate (section 80(4) & (5)).

8. There is nothing in the Act itself to require aids or appliances to be incorporated into the assessment of a person’s ability to carry out mobility activities.

9. The Social Security (Personal Independence Payment) Regulations 2013 are made under Part 4 of the 2012 Act. Regulation 3(2) introduces Part 3 of Schedule 1 to the Regulations and provides that it sets out mobility activities for the purposes of section 79(4) of the Act.

10. As mandated by the 2012 Act, regulation 4(1) requires the question whether a person has limited ability to carry out mobility activities to be determined “on the basis of an assessment”. The assessment is set out in Schedule 1 to the Regulations. Regulation 5 provides that the assessment involves, in relation to a prescribed mobility activity, comparing a claimant’s abilities with the different ability levels for that activity in Schedule 1. These different levels are called descriptors and each has an associated points score. At least eight points are required for an award of the standard rate of the mobility component.

11. The second mobility activity in Schedule 1 is “moving around”. Assessment of ability to move around involves comparing the person to the following descriptors:

12. In the event that more than one descriptor applies, regulation 7(1)(b) provides that only the highest scoring descriptor counts.

13. This case concerns descriptor (c).

14. The assessment parameters are fixed by general provisions of the regulations. These include the requirement in regulation 4(2) for a person’s (C’s) ability to carry out an activity “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”. Hence, regulation 4(2) requires ability to be assessed taking into account any alteration in functioning from an aid or appliance normally worn or used as well as any which could reasonably be expected to be worn or used.

15. “Aid or appliance” is defined by regulation 2 as “any device which improves, provides or replaces C's impaired physical or mental function” (including a prosthesis). Clearly, Ms L’s walking stick and crutch are aids or appliances.

16. The word “unaided” is defined for the purposes of Schedule 1. Contained in paragraph 1 of the Schedule, the definition is “without (a) the use of an aid or appliance; or (b) supervision, prompting or assistance”. Of the defined terms within (b), I need only refer to “assistance” which means “physical intervention by another person and does not include speech”. The definition of “aided” is effectively the reverse of this (“with” replaces “without”).

17. There is an inconsistency between (on the one hand) the general requirement in regulation 4(2) for the PIP assessment to assume certain aids or appliances are worn or used and (on the other) the wording of descriptor 2(c) which calls for an assessment of a person’s unaided ability to move around.

18. In the present case, the First-tier Tribunal assessed Ms L’s ability to move around with the assistance of crutches or a walking stick. It did not assess her ability to move around unaided.

19. The Secretary of State supports the appeal. He argues that the general words of regulation 4(2) must yield to the specific words of mobility descriptor 2(c). That is clearly right. Otherwise, descriptor 2(c) would be pointless. I also agree with the Secretary of State that one arrives at this result by reference to the principle of interpretation expressed as follows in the sixth edition of Bennion on Statutory Interpretation (Butterworths):

“[Legislation] very often contains general provisions which, when read literally, cover a situation for which specific provision is made elsewhere in the [legislation]. This maxim [special provisions override general ones] gives a rule of thumb for dealing with such a situation: it is presumed that the general words are intended to give way to the particular. This is because the more detailed a provision is, the more likely is to have been tailored to fit the precise circumstances of a case falling within it”.

20. I agree that is a correct statement of the law and there are numerous authorities in which has been applied (cited in Bennion). I apply the presumption and hold that regulation 4(2) does not apply on an assessment of whether a person satisfies mobility descriptor 2(c).

21. The First-tier Tribunal therefore erred in law by failing to make findings about Mrs L’s ability to move around unaided. It was a relevant issue in the light of the correct interperetation of desriptor 2(c). I set its decision aside.

What happens next?

22. Ms L’s appeal now goes back to the First-tier Tribunal for complete re-hearing before a different panel.

23. The next Tribunal will need to make findings of fact about Ms L’s ability to move around unaided so that it can then decide whether descriptor 2(c) applies. On this topic, I note that in some PIP cases before the Upper Tribunal the Secretary of State argues descriptor 2(c) needs to be read down to prevent an anomaly arising. The anomaly is said to be an unfair advantage for claimants whose ability to move around aided is such that they are able to move more than 200 metres. While the argument has not been advanced before me this case, I will express some views on it because it is possible the Secretary of State will put the argument to the First-tier Tribunal to which this appeal is remitted.

24. My understanding of the argument is as follows. Person A, for example, is unable to walk 50 metres unaided but can get to 200 metres without difficulty if s/he has an aid. Person A would, on the face of it, satisfy descriptor 2(c) and therefore be awarded the 8 points necessary for entitlement to the mobility component at the standard rate. Person B can manage 50 metres unaided but then needs an aid to walk further but cannot make it to 200 metres. On the face of it, person B only satisfies descriptor 2(b) whose four points are not enough to generate an award. To prevent the anomaly, descriptor 2(c) should be reserved to those who are unable to move 50 metres unaided and, additionally, can then move no further.

25. I have not heard argument on the point but am not presently convinced there is any justification for departing from the literal wording of mobility descriptor 2(c). I do not think it is irrational to isolate claimants unable to move the relatively short distance of 50 metres unaided and confer upon them entitlement to the standard rate of the mobility component. Such a person is likely to be especially reliant on a walking aid, use it a lot and take it with them wherever they go. There is not much that can usefully be done in day-to-day life with a movement radius of less then 50 metres. Whether or not the person can move further, even a lot further, will not change that effectively continuous need for a walking aid. By contrast, a person who is able to move 50 metres unaided but cannot move 200 metres even with an aid may well be less reliant on a walking aid. For example, imagine a person who can move 150 metres unaided but not 200 metres even with an aid.

26. On the face of it, there is logic in the treatment of those who are especially reliant on a walking aid. Everything being equal, their use of walking aids and hence their disability-related costs are likely to be greater.

27. The PIP Regulations are part of a social welfare scheme for those who have to cope with a disability. It recognises that, for disabled people, life tends to pose challenges that are not faced by others. Clearly, it is no part of any tribunal’s role to seek to expand the entitlement criteria for a disability benefit. However, in the light of the rationale for PIP, I think a tribunal should be slow to depart from the literal meaning of legislation setting entitlement criteria if that would result in them being effectively tightened up. I am not convinced that descriptor 2(c) operates anomalously if applied literally such that a strained judicial interpretation is required. If the DWP are of the view that its literal wording runs counter to PIP’s purpose, they can deal with that by amending the PIP regulations in accordance with the open and relatively democratic process for doing so.

Directions

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, I direct as follows:

(1)   An oral re-hearing of Ms L’s must be held by the First-tier Tribunal. The Tribunal’s membership must not include anyone who was a member of the Tribunal whose decision I have set aside.

(2)   The Tribunal must make findings of fact about Ms L’s ability to move around unaided so that it can decide whether mobility descriptor 2(c) applies. 

(3)   Ms L is reminded that the law prevents the tribunal from taking into account circumstances not obtaining at 3 December 2013, when the decision under appeal was taken

(4)   If either party has any further documentary evidence or written argument which they he wish to put before the First-tier Tribunal, it should be sent to the First-tier Tribunal’s office within one month of the date this Decision is issued.

(Signed on the Original)

E Mitchell

Judge of the Upper Tribunal

6 November 2015