IN THE UPPER TRIBUNAL Case No  UK/313/2015

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Decision:  The appeal fails in the result.  Although the decision of the First-tier Tribunal sitting at Cardiff on 7 October 2014 under reference SC025/14/00002 involved the making of an error of law and is set aside, acting under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 and having made further findings of fact I remake the tribunal’s decision in identical terms.

 

REASONS FOR DECISION

 

1. This appeal, made with the permission of a judge of the First-tier Tribunal, was identified as something of a test case to examine mobility activity 1 “Planning and following journeys” and a number of cases are stayed behind it.  For a variety of reasons, progress towards the decision has not been altogether smooth and it is regretted that it has taken as long as it has.

 

2. Mobility activity 1 is set out in Part 3 of the Schedule to the Social Security (Personal Independence Payment) Regulations 2013/377 (“the PIP Regulations”) in the following terms:

 

Column 1 Activity	Column 2 Descriptors	Column 3 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

 

3. In the present case the tribunal found that the claimant suffers from anxiety and depression. She has good and bad days and good and bad periods, without any pattern. She relies on friends and family to get about, except when she goes to her GP’s surgery, which is close to her house.  Her father generally takes her shopping for essentials.  She becomes nervous and anxious when out and about.  She prefers to have someone with her.  Her friends will often come to her house instead of her meeting them for coffee in town.  She will however go shopping with close friends in the city where she lives.  She can go to a pub or a restaurant with friends and has been out clubbing with them.  She generally feels safe, as long as she is part of a group. Her father will often accompany her for routine appointments. She would not feel able to do it on her own.  She is not hampered by any inability to navigate: it is being out on her own which causes her anxiety.

 

4. At the tribunal, the presenting officer accepted on behalf of the Secretary of State that the claimant satisfied descriptor 1b, carrying 4 points, and the tribunal agreed.

 

5. The tribunal rejected a submission that the claimant was unable to follow the route of an unfamiliar journey on her own and thus should be awarded 10 points under descriptor 1d saying:

 

“[the claimant] was clearly capable of navigation.  Her real concern was being out and about on her own.  This was not a limitation falling within the limits covered by [the relevant] descriptor, because it is the inability to orientate oneself without support which is at issue in that particular descriptor.”

 

6. On granting permission, the judge observed :

 

“There may be claimants who are so severely impaired due to depression and/or psychological distress that they cannot follow a route. The distress is such that they are not cognitively able to follow the route.  Can depression and/or psychological distress amount to cognitive impairment if in fact any such impairment is required for this descriptor to be met?”

 

7. The Secretary of State submitted, in outline, that:

 

a. the use of “follow the route” in descriptors 1d and 1f was adopted deliberately, so as to indicate that it was the ability to navigate with   which those descriptors were concerned;

 

b. the reference in descriptors 1d and 1f to “another person, assistance dog or orientation aid” gives colour to the difficulty which those descriptors are addressing;

 

c. overwhelming psychological distress could, depending on its nature, frequency, duration and severity make a person unable to navigate and so to fulfil the terms of the relevant descriptor; and

 

d. though the tribunal had made insufficient findings to enable that aspect to be addressed and thus was in error of law, it was open to the Upper Tribunal to make further findings, and to remake the tribunal’s decision, and it should do so, to like effect.

 

8. The claimant’s representative submitted, again in outline, that:

 

a. psychological distress was capable of being relevant to descriptor 1d [and by extension, 1f];

 

b. while it is accepted that the claimant has the cognitive ability to follow a route, it is the fact that she cannot do so, without another person, without overwhelming psychological distress which stops her and this affects the ability to navigate, and that falls within descriptors 1 d and f;

 

c. it was agreed that the tribunal had made insufficient findings.

 

9. An oral hearing was sought by the claimant’s representative, a request which I rejected as one was not necessary for the legal issues involved and if a hearing did prove to be needed to enable further facts to be found, this could be achieved by remitting the case to the First-tier Tribunal.

 

10. At this point two decisions of the Upper Tribunal emerged which were germane to the issue I had to decide.

 

11. In DA v SSWP [2015] UKUT 344 (AAC) Upper Tribunal Judge Jacobs had to address whether the test of following a route for the purposes of this activity included dealing with any personal interactions along the way.  The First-tier Tribunal had found as fact that DA avoided going out and speaking to people; and that she had no form of learning difficulty or visual impairment which would impair her ability to plan and follow the route of a journey.  The tribunal awarded 4 points for daily living activity 9 (engaging with other people face to face).  The submission on mobility was that:

 

“[DA] 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 for help.”

 

As Judge Jacobs observed, the same argument would equally apply to descriptor 1f if there were to be, for instance, road works causing DA to have to divert from a familiar journey and become lost.

 

12. Judge Jacobs accepted the Secretary of State’s submission that descriptor 1d ”deals with navigation and excludes dealing with other difficulties that may be encountered along the way”.  On the natural meaning of the words, the relevant descriptors dealt with “following” the route, a route which had been planned.  Difficulties such as getting lost and asking for directions or encountering crowds which arose on the way were not difficulties with “following” the route.

 

13. In para 14 of his decision he continued:

 

“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.”

14. He then rejected the argument by the Secretary of State, also put in the present case, that the reference to “another person, assistance dog or orientation aid” controlled, or assisted in, the interpretation of “follow the route”. Rather, he observed, those words limited the form of assistance contemplated from the person accompanying a claimant, to helping him or her to follow the route.

 

15. I observe in passing that such a view is equally applicable to the role of the assistance dog or orientation aid (terms defined in para 1 of the Schedule).

 

16. In RC v SSWP [2015] UKUT 386 (AAC) Upper Tribunal Judge Sir Crispin Agnew of Lochnaw QC was likewise concerned with a claimant who had been awarded 4 points for descriptor 1b but who in that case argued for 1f. That claim had been rejected by the First-tier Tribunal which had observed:

 

“16. Planning and familiar journeys – In our view, it does not follow from the appellant feeling or being unable to go out alone that this is because she is unable to follow a route. It was not argued or found that the appellant has a cognitive, intellectual or sensory impairment which renders her unable to follow any route, whether familiar or unfamiliar. We were satisfied from what was said in the PIP2, to the HP and us that the appellant’s difficulty in going out was because she was prone to anxiety giving rise to a need for prompting in order to undertake any journey to avoid overwhelming psychological distress and that with such prompting she could, and did, undertake journeys. We conclude that the appellant did not come within the terms of a higher scoring descriptor.”

 

It was submitted to the Upper Tribunal that the First-tier Tribunal had erred because the evidence showed that RC could not go out without another person and accordingly that she was unable to follow a route unaccompanied because she was unable and/or felt unable, due to anxiety, to go out alone in the first place.

 

17. The judge observed that the Secretary of State’s submission - that there was no evidence of cognitive impairment which would render her unable to navigate a route although there was evidence that  RC never went out alone due to anxiety (and thus that she did not qualify for the higher scoring descriptor) - meant that:

 

 “Activities 1d and 1f stand in a category of their own relating to the ability to navigate, whereas Activities 1b and 1e are in a different category relating to “psychological distress”.

 

(There are two numerical systems in use for referring to the mobility descriptors and I have used the set which is consistent with usage elsewhere in this decision.) He also observed that it seemed "extraordinary" to him that a permanently housebound person got less points under 1e than someone who could sometimes go out (1f).

 

18. At para 12 of his decision he observed that the Secretary of State’s view was in his opinion not correct, saying:

 

“I consider that “cannot follow” does not have the restricted meaning put forward by the Secretary of State. It is the “cannot” that is the   significant word and “cannot” is not qualified by any reason. I consider that is covers the situation where a claimant “cannot follow” the route because they cannot navigate the route or because they cannot follow it because of some psychological factor, such as anxiety, even if they have the intellectual capacity to follow the route in theory. Even if a claimant can in theory navigate a route, if the claimant cannot in fact go out and follow it without the assistance of another person, dog or other aid, whatever that reason, I consider it brings the claimant within the Activity. There is, with the exception of Mobility Activity 1.e (as noted above) a logical progression in the Activities. If a claimant can “plan and follow” a route there are no points; if the claimant can plan and follow the route, but needs prompting to go out and follow it, then it is 4 points. The next stage requires someone else to plan the route for the claimant, who must then be able to follow that plan alone and hence gets 8 points. The next stage is the person who cannot follow an unfamiliar route without another person etc, so the activity gets to the stage where outside assistance is needed in order to be able to follow the route and thus qualifies for 10 points.”

 

19. The judge then rejected an argument by the Secretary of State which was the same one as was set out at [14] above, but did so on different grounds from Judge Jacobs, concluding that there was no limitation on the reason why the “person” was required and thus, if the argument was indeed the same, that the mention of the “person, assistance dog or orientation aid” did not limit the scope of the descriptor.

 

20. Directions were given inviting submissions from the parties’ representatives on these cases. One was received from the claimant’s representative, to which I return below.  The Secretary of State asked for, and was granted by a registrar of the Upper Tribunal, an extension of time to make such a submission.  That was objected to by the claimant’s representative, but I only saw fit to vary the time limit as extended to a minimal extent.  That submission also has been received and considered.

 

21. The Secretary of State did however in an invitation to the Upper Tribunal to consider varying the directions draw attention to a further decision on the point which had been given, by Upper Tribunal Judge May QC, on 24 November 2015 in CSPIP/255/2015, the judge having not seen fit to accede to the application for that case to be sisted (stayed) as has happened in other similar cases.  In relation to that decision my initial view was that whilst I noted the judge’s preference for the views expressed in DA to those in RC, the decision did not materially add to the analyses provided by those decisions.  I therefore asked a registrar of the Upper Tribunal to establish from the claimant’s representative whether there was any further submission, specifically by reference to CSPIP/255/2015 which he would wish to make, or whether he was content to rely on the submissions made thus far. On 14 December he indicated that he did not wish, following Judge May’s decision, to add to his previous submissions.  The Secretary of State indicated similarly.

 

22. The claimant’s representative’s submission was (I paraphrase):

 

a. the word “cannot” (as in descriptor 1d) is not a defined term;

 

b. the DWP’s PIP Assessment Guide, to the extent that it suggests at p117 that the descriptor is concerned with the visual, cognitive and intellectual ability to reliably navigate a route, is not a correct statement of the law, in particular in that it fails to take account of the impact of mental health conditions on a person’s ability to follow a route (cf. the First-tier Tribunal judge’s remarks at [6] above);

 

c. reliance should be placed on descriptions of the intended purpose of PIP set out in publications by CPAG and Disability Rights UK;

 

d. the factual context of the present case is very similar to that of RC and not to that of DA;

 

e. Judge Jacobs in DA does not engage with the implication of the word “cannot” in “cannot follow”;

 

f. the view expressed in DA that getting back onto a route, if lost, or finding an alternative route to avoid some obstacle are inconsistent   with p118 of the DWP’s own Guidance, which contemplates (among other things) that “an individual who would… be unable to recover from getting lost, would be unable to complete the activity to an acceptable standard” and the view in the Guidance should be preferred; and

 

g. the observations of Judge Agnew summarised in [17] above are agreed with, as are the judge’s reliance on the word “cannot” set out at [18] above and his conclusions about the relevance to interpretation of the “person, assistance dog or orientation aid”.

 

23. In essence, therefore, the submission is that, as regards a person who is unable to go out unaccompanied at all, RC is correct and if the person cannot go out, they “cannot” “follow a route”; but in the alterative, if following a route is confined to the ability to navigate, the effects of psychological distress may be such as to impair that ability, so that a person is to the requisite extent unable to navigate so as to “follow the route”.

 

24. As regards the primary position of inviting me to adopt the ratio of RC, it is helpful to recap on the legislative building blocks. By s.79 of the Welfare Reform Act 2012, it is a condition of entitlement to the mobility component, whether at the standard rate or the enhanced rate, that “the person’s ability to carry out mobility activities is limited by the person’s physical or mental condition”: see sub-sections (1) and (2). “Mobility activities” are such activities as may be prescribed by regulation: sub-section (4). Turning to the PIP Regulations, reg 3(2) provides that “mobility activities are the activities set out in column 1 of the table in Part 3 of Schedule 1.”  The relevant extract is, of course, that set out at [2] above.  At this point, it is relevant to observe that the mobility activity in question is, as column 1 provides, “planning and following journeys”.

 

25. An award of mobility component is made where a person achieves 8, or 12, points, according to whether the standard or the enhanced rate is involved.  Scoring for mobility activities is addressed by regulation 6:

 

“(1) The score [a claimant] obtains in relation to mobility activities is determined by adding together the number of points (if any) awarded for each activity listed in column 1 of the table in Part 3 of Schedule 1 (“the mobility activities table”).

 

(2) For the purpose of paragraph (1), the number of points awarded to [a claimant] for each activity listed in column 1 of the mobility activities table is the number shown in column 3 of the table against whichever   of the descriptors set out in column 2 of the table for the activity applies to [the claimant] under regulation 7.”

 

26. For completeness I observe that regulation 7 indicates that a descriptor has to be satisfied for more than 50% of the time; and I note regulation 4(2A) under which a person is to be assessed as satisfying a descriptor only if they can do so safely, to an acceptable standard, repeatedly and within a reasonable time period (expressions themselves defined in the regulation.)

 

27. The purpose of the descriptors is to set out a number of limitations by a person’s physical or mental condition on, in this case, the ability to carry out the “mobility activity” of “planning and following journeys”.  Different descriptors which are met may then attract differing numbers of points.

 

28. Against that background, I consider that the situation of a person who is limited in the activity of “planning and following journeys” by the fact that they cannot do it without overwhelming psychological distress  either by undertaking any journey at all (descriptor 1e) or without prompting (descriptor 1b) is addressed by those descriptors.  Those descriptors deal with that sort of limitation on the mobility activity.  Other descriptors deal with other sorts of limitation on that activity.  It respectfully seems to me that Judge Jacobs’ analysis of the linguistic structure of the various descriptors of activity 1 at para 14 of his decision is entirely accurate. 

 

29. Once it is appreciated that the descriptors address a number of different types of limitation on the activity of “planning and following journeys”, it can, I would respectfully suggest, be seen that the emphasis placed in RC on the word “cannot” (and relied upon by the claimant in the present case) is misplaced.  Even if as a matter of general language, it may perhaps be argued to be possible – at a stretch - to say that a person who cannot get out of the door because of anxiety “cannot” “follow the route”, that would be to approach the descriptor in a vacuum.  The case does not in my view turn on the word “cannot” (or on whether or not it is defined) but on the distinctions contained within the wording of the descriptors, as identified by Judge Jacobs, which then bear on the type of limitation on the activity of planning and following journeys that a person has.

 

30. Given that the descriptors address different types of limitation in relation to the same activity, the scope for an argument based on the number of points awarded to one descriptor appearing possibly inconsistent with the number of points awarded for a descriptor going to a differing type of limitation is much reduced.  Notwithstanding Judge Agnew’s view, the relative weight given to 1e and 1f is in my view essentially a point for a legislator to determine and is one which does not assist materially with the question of interpretation[1].

 

31. The Secretary of State respectfully criticises Judge Agnew’s rationalisation of the descriptors in para 12 of RC (see [18] above) on the grounds that, to summarise, it would be impossible to satisfy 1b without also satisfying 1d or 1f. I can see the force of that criticism, although it is based on a particular reading of that decision and as the Secretary of State does not need it in order to succeed, I do not dwell on it here.

 

32. On my view, what then does it entail to “follow the route”?  I agree with the Secretary of State that the words “follow the route” must be taken to have been adopted advisedly; that “route” refers to (in the broad sense) the pathway to somewhere and that to follow has connotations of keeping to such a pathway.  I accept the submission that “the deliberate use of the words “follow” and “route” focuses us upon the claimant’s ability to navigate along pathways and is not concerned with other possible problems that a claimant may have when being in the natural environment.”

 

33. Given the view I take of the structure of the descriptors and the meaning to be attributed to “follow a route” it follows that I also respectfully agree with Judge Jacobs’ views, summarised in [14] above, as to the “person, assistance dog or orientation aid” point.

 

34. In DA Judge Jacobs was concerned with the ability to ask others for help.  For my part and without disagreeing with the examples he gave of asking for directions or encountering crowds, which he considered were not difficulties of following a route, I can conceive, particularly when reg 4(2A) is borne in mind, of types of difficulty occurring on the way – such as the need to navigate round road works or the effects of an accident – which might properly fall within the scope of the descriptor.  This might be, for instance, if a person had a particular cognitive difficulty in making minor modifications to the route they had planned, but that is not the issue here. I do not see the conflict between the DWP’s guidance on this issue and the decision in DA which the claimant’s representative does.

 

35. I note that my conclusions appear consistent with that of Judge May QC in CSPIP/255/2015 but have based the present decision on my own analysis and on the submissions.

 

36. As regards the other points raised by the claimant’s representative, I am not assisted by generalised appeals to the stated purpose of PIP in publications by voluntary organisations, distinguished in their field though they be.  The DWP’s PIP Assessment Guide, with parts of which the claimant’s representative takes issue, cannot be determinative of the law and I have not relied upon it in reaching my decision.

 

37. The Secretary of State has also put forward an argument based on policy intent. He does not need it in order to succeed and for my part I do not see sufficient ambiguity in the legislation to justify examining it in detail here.

 

38. Given the tribunal’s findings in the present case, that is sufficient to deal with the appellant’s primary case.  Her fall-back case is that “overwhelming psychological distress”  should not be confined to 1b and 1e where it is expressly mentioned, but is capable of belong relevant  to a person’s ability to “follow the route”.  As noted at [7c], this point is acceded by the Secretary of State and I agree.  The question always, though, is whether the ability to “follow the route” in the sense outlined above is impaired by a claimant’s physical or mental condition.

 

39. I turn to examining whether the tribunal made enough findings. It is common ground that it did not.  As the Secretary of State’s representative points out, while the tribunal did discuss the nature of the claimant’s distress, concluding that she “was clearly capable of navigating” but that “her real concern was being out and about on her own”, what was not investigated was what would happen if she were on her own.  The Secretary of State’s representative  points out that “She would be more likely than not to be suffering from overwhelming psychological distress as she would not have any “prompting” to overcome it (the basis of her award of 1b)”.  Turning to whether, in such a state of distress, the claimant would be able adequately to navigate, she further submits that  though there were no findings on the point, the tribunal did ask questions about it. She points out that in answer to the question recorded as ”Could you have got here today? With map etc” the claimant answered that she “probably could, would be emotional”.  From that it is submitted that the fact that the claimant considers herself, when alone and likely to be suffering from overwhelming psychological distress for at least some of the journey, able to navigate from home to the tribunal venue  shows with some certainty that she could not satisfy 1d. Thus the Upper Tribunal is invited to make the necessary finding and to re-make the decision to like effect.

 

40. The claimant’s representative submits that what is lacking is sufficient consideration of the impact of regulation 4(2A).  His submission misquotes the regulation, in particular by referring to “in an acceptable manner” rather than “to an acceptable standard”.  The difficulty is that by the answer relied upon by the Secretary of State the claimant is effectively conceding that  though she might be in a poor emotional state she probably could accomplish the necessary navigating.  There is no hint of a suggestion that she would be unsafe, or that her following of a route would be of an unacceptable standard (or indeed of any other issue going to the difficulties in reg 4(2A).

 

41. I therefore agree with the submission of the Secretary of State and find as fact on the balance of probabilities that the claimant could, if unaccompanied, follow an unfamiliar route to a place without her ability to do so being compromised in any of the respects identified in reg 4(2A).

 

42. There are two further grounds of appeal in this case, which I turn to addressing. Permission to appeal was not formally limited by the District Tribunal Judge, but it would be fair to say that they do not appear to have been the reason why he gave it.

 

43. The first is that there was said to be a breach of the rules of natural justice, in that the tribunal judge allowed the DWP’s presenting officer to “cross-examine” the claimant, who felt that she “was treated as a defendant not an appellant” and that “she was interrogated with leading questions which placed her at an unfair advantage“ (sic – “disadvantage” was doubtless intended).

 

44. The record of proceedings shows the judge’s summary of the questions put by the presenting officer.  These read “Where learned coping strategies?” “Academically?” “Training for nail technician?” “Who are customers?” “OK with group of friends?” “When go with friends shopping?”  When accompanied what support?” and “Holiday last year?”

 

45. The claimant’s representative asserts that the record of proceedings is not complete and that neither ”the leading questions and intimidating cross-examination of our client by the presenting officer” nor the protests, said to have been made on at least two occasions, by the representative to the judge regarding the questioning, were recorded.  All I have on the claimant’s side is the evaluative judgment of the representative (who was at the hearing).  I have not been offered any notes from him, even in summary form, of what was actually said.  There is no evidence from the claimant’s father, who was also present.  Conversely I do have the judge’s contemporaneous note.  The record of proceedings was, perfectly properly, being maintained in note form.  The judge’s somewhat pithy style of recording questions was adopted just as much for questions posed by the tribunal as it was for those posed by the presenting officer.  The claimant’s case on this aspect is further weakened by the fact that not only is there no hint in a 10 page record of proceedings of the sort of questioning alleged, but there are positive indications of the very different sort of questioning which did take place. 

 

46. From that it can be seen that these were questions that were both phrased as open questions and were relevant, given the claimant’s employment and other circumstances and the case that was being put, to the issues which arose.  I can see nothing wrong in the questions asked, or in the tribunal allowing them.  It is unfortunate if the claimant found the tribunal a stressful experience, as I can readily imagine that being faced with strangers in a room asking one about things one finds difficult might be, but that does not mean that the proceedings were unfairly conducted.

 

47. The final ground is that the tribunal erred in relation to daily living descriptor 9c.  That applies where a person “needs social support to be able to engage with other people”.  “Social support” is a defined term: it means “support from a person trained or experienced in assisting people to engage in social situations”.  It so happens that the claimant’s father, by virtue of his previous professional experience, is such a person, as the tribunal accepted. It further found that he provided the majority of the support which the claimant required when not at work.  However, the tribunal found that the claimant “did not require the specialist support of someone trained or experienced in social support (sc. “assisting people to engage in social situations”): she just needed the support of people who were known to her – whether they were family, friends or colleagues.

 

48. The grounds assert that the tribunal’s reasoning was contradictory and unsupported by the facts.  I cannot agree. The findings within the statement of reasons lists a considerable number of people who can and do support the claimant – her best friend, her father, friends and family, groups of friends, her mother, many of her customers at work and so on.  Clearly, not all will be capable of providing “social support” as defined.  The findings provide an evidential foundation for the tribunal’s conclusion.  The ground is not altogether clear but appears to be suggesting that the mere happenstance that the member of the family providing the majority of support is able to provide “social support” as defined means that the claimant “needs” social

support as defined.  That cannot be right.

 

 

CG Ward

Judge of the Upper Tribunal

17 December 2015