TF v Secretary of State for Work and Pensions (PIP) [2015] UKUT 661 (AAC)

IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Before: L T Parker Judge of the Upper Tribunal
Decision: The appeal is allowed.
The decision of the First-tier Tribunal (Social Entitlement Chamber) sitting in Weymouth on 11 May 2015 (the tribunal) is wrong in law. I set aside the tribunal’s decision and return the appeal to a new tribunal for a wholly fresh hearing. The Upper Tribunal is not in a position to remake the decision under appeal as further findings of fact are required and these are cases which rely heavily on the expertise of the members. Permission to appeal was given by a First-tier Tribunal judge and the appeal is supported on behalf of the Secretary of State in a submission to the Upper Tribunal dated 29 October 2015. After careful consideration of all the case papers, I agree with that support.
It is important in the present case to focus on the circumstances as they were on 13 October 2014, the date of the relevant decision under appeal. This is already over 14 months ago, the appellant had an arthroscopy on his left knee three days after the original decision on the award, and the appeal has yet to reach a re-hearing. Therefore I make my reasons brief. The appeal to the Upper Tribunal concerns only the mobility component of Personal Independence Payment (PIP) but, as the tribunal’s decision is set aside, the case becomes once again an appeal against a total disallowance.
REASONS FOR DECISION
Between
TFAppellantSecretary of State for Work and Pensions (PIP)RespondentDate 2015-12-22

Issues relevant to the satisfaction of the mobility component

[1]The tribunal clearly erred in law in a way not mentioned either by the First-tier Tribunal judge when granting permission to appeal, nor by the Upper Tribunal judge giving case directions, nor in either of the submissions from the parties to the Upper Tribunal. The tribunal found, as fact, that the appellant:
“… could not reasonably manage to move 20 metres unaided within the meaning of Regulation 4.”
However, the tribunal went on to find that the appellant could reasonably move further using crutches but not “… over 200 metres safely, repeatedly and within a reasonable time period”; the tribunal then concluded that he satisfied activity 2(b) in Part 3 of Schedule 1 (“the mobility activities”) to the Social Security (Personal Independence Payment Regulations 2013) (“the regulations”).[2]But that a claimant can stand and move more than 50 metres when aided does not stop him from also qualifying under mobility activity 2(c) if he cannot move unaided morethan 20 metres; such a claimant may satisfy both mobility activities 2(b) (giving 4 points) and 2(c) and is then entitled to the higher score of 8 points which is appropriate under the latter descriptor; (under regulation 7(1)(b) of the regulations, always provided the claimant satisfies the higher scoring descriptor on over 50% of the days in a required period); this would establish qualification to mobility component at the standard rate.[3]In the present case, the inference from the tribunal’s findings is that the appellant could not reasonably ever move unaided even 20 metres. This is a worse case scenario even than under 2(c) but, notwithstanding, it could not satisfy any higher point-scoring descriptor, given the tribunal’s finding that the appellant could reasonably move up to 200 metres with his crutches.[4]Fresh findings and conclusions on this matter are now for the new tribunal but, as the tribunal clearly erred in law in failing to consider the potential application of 2(c) standing its own findings, its decision must be set aside on that basis. I discuss other matters raised in the submissions, only insofar as to give guidance to the new tribunal.[5]As is submitted on behalf of the Secretary of State to the Upper Tribunal, a tribunal:
“… does have to assess whether any activity can be achieved both on the terms of the descriptors themselves and also on the provisions of regulation 4(2A).”
As amended, regulation 4(2A) of the regulations reads:
“Where C’s ability to carry out an activity is assessed, C is to be assessed as satisfying a descriptor only if C can do so – (a) safely; (b) to an acceptable standard; (c) repeatedly; and (d) within a reasonable time period; …”
Regulation 4(4) defines three of the above factors, albeit not the fourth. “ (4) In this regulation – (a) ‘safely’ means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity; (b) ‘repeatedly’ means as often as the activity being assessed is reasonably required to be completed; and (c) ‘reasonable time period’ means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity.” (a) safely; (b) to an acceptable standard; (c) repeatedly; and (d) within a reasonable time period; …” (a) ‘safely’ means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity; (b) ‘repeatedly’ means as often as the activity being assessed is reasonably required to be completed; and (c) ‘reasonable time period’ means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity.”[6]It is not wholly apparent that the tribunal adequately considered all the above factors; the new tribunal must do so. Matters such as pain, and its severity, and the frequency and nature, including extent, of any rests required by a claimant, are relevant to the question of whether a claimant can complete a mobility activity descriptor “to an acceptable standard”. I do not agree with the comment at page 771 of Volume 1 of the 2015/16 annotated Social Security Legislation that arguably “… the test should envisage a single unbroken progress to the requisite distance”. Such might provide a simpler scheme but, in my view, does not accord with reality. A stop may amount to a mere one second or, alternatively, extend to one hour; such rests may be required once in an appropriate distance or several times. Given the potential vast disparity in circumstances, it is then a matter of judgment, and thus for the good sense of a tribunal, whether a claimant falls within a particular descriptor, having regard to the approach mandated under regulation 4; provided a tribunal’s analysis is rational, even if it takes account of a claimant’s necessity to stop on occasion to rest and includes those in the required distance, this is not prohibited as a matter of law.[7]Whether a claimant can stand and then move a particular distance “to an acceptable standard”, inevitably links with two of the further relevant matters under regulation 4(2A):
“repeatedly” and “within a reasonable time period. As these terms are statutorily defined, unlike the phrase “to an acceptable standard”, then if a claimant fails to satisfy that statutory test in either respect, it is unnecessary to give consideration to “an acceptable standard”; however, it might still technically be possible for a claimant, who is unable to show that he cannot carry out an activity repeatedly or within a reasonable time period, yet notwithstanding to establish that he is unable to do so “to an acceptable standard”
. Such instances must be rare but may exist; for example a claimant who forces himself to walk quickly and repeatedly, through stoicism, despite a very high level of difficulty caused by matters such as pain, breathlessness, nausea or cramp.[8]The appeal is therefore remitted to a new tribunal to begin again. It is emphasised that there will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal, and in accordance with the comments above, and the determination of the case on the merits is entirely for that new tribunal. Although the appellant has been successful in the appeal limited to issues of law, the decision on the facts of his case remains open. The daily living component has not been addressed in this decision, but whether or not the appellant is entitled to any rate of it is nevertheless also a matter for the new tribunal. The new tribunal not only has to place itself in the shoes of the original decision maker so far as any matter of entitlement is concerned, but also, if an award is considered appropriate, then using that same perspective, determine what the length of that award should be. (Signed on the Original) L T Parker Judge of the Upper Tribunal Dated: 22 December 2015

Cited in 1 later judgment