“We accept the appellant rarely goes out. We accept that when she does, she is accompanied and that she experiences symptoms which include hyperventilating, heart palpitations, legs shaking and wobbling; an inability to breath [sic] and physically vomiting due to panic. The facts indicate that the presence of another person does not reduce the degree of psychological distress to below the threshold of it being overwhelming or to prevent it arising. We find from the evidence before us that the appellant experiences a range of symptoms which plainly reaches the threshold of “overwhelming psychological distress” when she is required to undertake any journey. The facts indicate that even though the appellant is accompanied for all journeys, the presence of another person makes no difference in terms of reducing the degree of psychological distress or to prevent it arising in the first place. We conclude from this that the appellant cannot undertake any journey, safely, reliably, within a reasonable time period and to an acceptable standard for over 50% of the days in the required period because it would cause overwhelming psychological distress to her. This is why the award of descriptor 1e is appropriate and this is why the appeal has been dismissed.”
“The distinction between these two descriptors is often hard for tribunals to apply, and this is a case where the representative should have the opportunity to argue the point further at the Upper Tribunal.”
“The law provides that where a person satisfies descriptor 1e, the Tribunal should not go on to consider 1f.”
“The difficulty with this is that if the engagement is to be safe and to an acceptable standard, it is difficult to see how it would result in a substantial risk of harm to the claimant or another person. It is also difficult to see how it could apply to somebody who is unable to engage to an acceptable standard at all. There is no descriptor which awards points for such a total inability to engage as qualified by regulations 4 and 7. Even if the claimant in such a case suffered overwhelming psychological distress in attempting to engage to the extent to which he or she was capable of doing so, if the engagement of which that person was capable was not to an acceptable standard, they could never score points under this descriptor. On balance it appears to me that it is necessary to construe descriptor 9.d as referring to such engagement as he may be capable of but for such overwhelming distress or the relevant risks from such behaviour.”
“40. An example may help to illustrate the point.
“14. It is quite clear that, in the penultimate sentence, the three-judge panel was saying only that it had been correctly held in DA v Secretary of State for Work and Pensions (PIP)[2015] UKUT 344 (AAC) and HL v Secretaryof State for Work and Pensions (PIP)[2015] UKUT 694 (AAC) that, on the facts of the particular cases, the respective claimants did not satisfy the threshold. It is also quite clear, from both the third sentence and the last sentence (because RC v Secretary of State for Work and Pensions (PIP)[2015] UKUT 386 (AAC) was another case where the claimant suffered from anxiety), that the three-judge panel did not hold that anxiety, which as a matter of ordinary language means much the same as anxiousness even if the medical term is more tightly defined, could not amount to, or give rise to, overwhelming psychological distress. 15. Nor did the three-judge panel say, as Mr Power suggests, that such distress had to be due to a momentary bout of anxiety or panic and, if that was the impression conveyed, that is only due to the context in which the issue arose in that case. Chronic psychological distress caused by engaging with other people, or that would be caused by such engagement were it to be undertaken, could also be overwhelming. Indeed, the definition of “psychological distress” in Part 1 of Schedule 1 to the 2013 Regulations includes “distress related to an enduring mental health condition”. 16. Furthermore, although the three-judge panel did say that the threshold was a very high one, that is a relative term and should not be regarded as a gloss on the statutory words. All that the three-judge panel’s decision requires is that proper weight should be given to the statutory word “overwhelming”
“19. I turn, then, to the relevance of regulation 4(2A), which Mr Power submits was inadequately considered by the First-tier Tribunal. The relationship between regulation 4(2A) and daily living activity 9 is not as simple as might appear at first sight. Paragraphs (2A) and (4) of regulation 4 were inserted into the 2013 Regulations by theSocial Security (Personal Independence Payment) (Amendment) Regulations 2013 (SI 2013/455) and come into force at the same time as the original Regulations. As paragraph 8.2 of the Explanatory Memorandum to the amending Regulations explains, it had been intended initially that what is now provided in regulation 4(2A) and (4) should be in guidance rather than the legislation, but there was a lot of pressure for it to be included in the Regulations and the Government gave way. However, perhaps because it was drafted separately and originally as guidance where linguistic precision may perhaps be less important, the language of regulation 4(2A) does not always fit well with the Schedule to which it must be applied. Its general purpose seems obvious enough – to make it clear that the descriptors are not to be construed more strictly than is reasonable – but there are difficulties in applying it literally to some descriptors. Indeed, it is arguable that regulation 4(2A) nearly always has to be given a less than literal interpretation, even though it is clear enough what it is intended to mean in broad terms. 20. The word “activity” in regulation 4(2A) obviously means the activity mentioned in a descriptor listed in Column 2 of Schedule 1, rather than the activity listed in Column 1. Although these are the same in relation to activity 9, since “engage with other people” must clearly be read as “engage with other people face to face”, that is not always so... 21. Moreover, the word “can”, in the clause “only if C can do so”, cannot refer to the ability to satisfy a descriptor, since the descriptor is often in the form of “needs …”, but must in such cases refer to the ability to carry out the activity mentioned in the descriptor. Where the descriptor is in the form “cannot …”, the clause must refer to the inability to carry out the activity mentioned in the descriptor, rather than the ability to do so, (and the word “only” is then inappropriate). This is because those descriptors beginning “cannot …” must be construed consistently with the other descriptors, which, in activity 9, refer to help that the claimant needs so that he “can” do the same activity. 22. However, descriptor 9(d) is different from most of the other “cannot …” descriptors in Part 2 of Schedule 1 because it is limited in its scope by heads (i) and (ii). This has given rise to at least three decisions in which the Upper Tribunal has considered how regulation 4(2A) is to be applied in relation to activity 9.”
“28. Judge Mark and Judge Ovey were both exercised by the logical possibility that regulation 4(2A) might have the effect that a claimant was excluded from each of descriptors 9(a), 9(b) and 9(c), despite also being excluded from descriptor 9(d) because neither head (i) nor head (ii) of that descriptor applied to his or her case. Neither judge appears to have regarded that as an intended outcome, but I am not sure that either entirely solved the apparent dilemma. 29. For my part, it seems important to recognise that regulation 4(2A) does not impose absolute standards, save in regulation 4(2A)(d) in respect of which the definition of “reasonable time period” in regulation 4(4)(c) is more prescriptive. It is not entirely clear to me how appropriate regulation 4(2A)(d) is in the context of activity 9 but the point does not arise for specific determination on this appeal. As regards the other subparagraphs, there are elements of judgment involved and the reality of the position of the individual claimant concerned must, I suggest, be taken into account when considering what is safe, acceptable or reasonable. So too, must the terms of descriptor 9(d). Judge Mark suggested that that descriptor has to be taken to refer to “such engagement as [the claimant] may be capable of” without suffering “overwhelming psychological distress” or exhibiting “behaviour which would result in a substantial risk of harm to the claimant or another person”
“…The combined effect of regulations 4(2A) and 7 is that the descriptors need to be considered on the basis that a claimant is carrying out the activities as often as is reasonable for them to be carried out and if, the claimant is not carrying out the activities as often as is reasonable, the Tribunal needs to consider why the claimant is not doing so. If it is because of the claimant’s disability, then the Tribunal needs to consider whether the descriptor would apply on the majority of days if the claimant did in fact carry out the activity as often as was reasonable.”
“22. “These principles are well explained in two decisions of Judge Hemingway. The first is TR v SSWP [2016] AAC 23 where Judge Hemingway held as follows (emphasis added): 30. I would certainly accept Ms Pepper’s contention that if a descriptor does apply at any point during a 24 hour period that must be a direct consequence of a claimant’s physical or mental condition. That follows logically from the wording of section 78(1)(a) andsection 79(1)(b) of the Welfare Reform Act 2012 ... ... 32. Following the above reasoning, therefore, it seems to me that for a descriptor to apply, on a given day, then the inability to perform the task or function must be of some significance, that is to say something which is more than trifling or, put another way, something which has some tangible impact upon a claimant’s activity and functioning during a day but not more than that. So, by way of illustration, to use the example given in the PIP Assessment Guide, if a person were to take his painkilling medication at the start of the day and it was to take effect quickly, so that his normal daily routine would not be inhibited in any way, then the relevant descriptors, in this context perhaps those relating to functions such as dressing, washing and toileting, would not be satisfied such that no points would be scored. If, however, the medication did not start to work for a period such as to delay his going about his daily business then it would be satisfied. Such a claimant, having taken his medication, could not be expected to await embarking upon his washing, dressing and toileting for a significant period for his medication to take effect. This, again, would seem to be in accordance with the overall legislative intention and seems to me to be consistent with the Government’s response. 33. It may be, though, that with respect to at least some of the descriptors there will be a little more to consider. With respect to matters such as washing, dressing and toileting these are functions which, in general, will obviously need to be performed at some point during each 24 hour period. The position with respect to venturing out-of doors, for example, might be somewhat different. A person might, for example, simply have a lifestyle as a matter of choice not linked to disability which does not involve venturing out-of-doors during periods of dusk or darkness at all. So, in such a case, there may have to be a factual enquiry as to whether it is the disabilities or something else which is preventing such an activity... Nevertheless, there are many reasons why a person might want to venture out after dark perhaps, dependent upon taste, to attend night school classes, or to visit the theatre, restaurants or perhaps even public houses. These activities might not be pursued every day and might indeed be pursued only rarely but if a person is effectively debarred from following the route of an unfamiliar journey or a familiar one without another person, an assistance dog or an orientation aid, which is in part what this appellant is contending, during the hours of dusk or darkness, then that person would not have to show, for the descriptor to be satisfied, that they would wish to undertake such a journey every day or anything like that but would only have to show that the particular disability which impacts upon them is sufficient to mean that that option is not, without the necessary assistance, available to them such that their lifestyle is restricted to more than a trivial extent. 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. 23. In the second decision, GG v SSWP (PIP)[2016] UKUT 0194 (AAC) , Judge Hemingway explained the proper approach as follows at [7] (emphasis): “7....The mere fact that a claimant might be sufficiently motivated to perform a task when there is specific or unusual impetus to do so does not, of itself, inform as to the overall position and the generality of the situation. So, it is not appropriate to limit the scope of the enquiry to such days. True an ability to perform a task without prompting when there is particular pressure to do so might be indicative of a claimant simply exercising a choice not to perform such a task on impetus absent days but that will not necessarily follow. What has to be undertaken is a more general and all-encompassing consideration. So, there needs to be an assessment, in such cases, of why it is that, on days when a claimant does not perform certain tasks, he/she does not do so. If it is because, without any specific impetus, he/she is not motivated to do so as a result of health difficulties and that such days exist for more than 50% of the time in the relevant assessment period, then absent other pertinent considerations, the relevant descriptor or descriptors will apply. That was not this tribunal’s approach, and I conclude that, in consequence, it did err in law.””
“6.13 This activity has received numerous comments in relation to the wording ‘overwhelming psychological distress’, with particular reference to why we proposed to award more points for needing support to undertake journeys to familiar locations than where someone cannot undertake journeys because of overwhelming psychological distress. 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. 6.14 Concern was raised that the activity takes insufficient account of the impact of mental health conditions on mobility. We do not consider this the case. Individuals could potentially score in a number of descriptors in the activity if they cannot go outside to commence journeys because of their condition or need prompting or another person to accompany them to make a journey. 6.17. Some clarity was requested about why pain and fatigue are not included in this activity. While pain and fatigue are considered in all activities because claimants need to be able to reliably complete the activity, they are less relevant to this activity. This activity is concerned with whether an individual is able to plan the steps of a journey and then follow those steps, looking primarily at sensory, mental, cognitive and intellectual ability. It is not about the physical acts involved, such as standing and walking, so pain and fatigue do not feature as much in this activity. Where they do, this will be taken into account.”
“41. This was an issue first raised by Upper Tribunal Judge Rowland in Mr H’s case where the question arises whether the fact that he is unable to undertake any journey because it would cause overwhelming psychological distress and so scores 10 points under descriptor 1e implies that the overwhelming psychological distress from which he would suffer if he did undertake a journey is to be ignored for the purpose of descriptor 1f. Regulation 7(1)(b) has the general effect that, if a claimant satisfies two or more descriptors, the descriptor which scores the higher or highest number of points is the one to be applied. Nonetheless, it seems to us that descriptors 1e and 1f cannot sensibly each be read in isolation from each other and that the legislation contemplates that, where descriptor 1e is satisfied because the claimant needs to avoid overwhelming psychological distress by not undertaking any journey, the claimant will not undertake journeys so that the need for consideration of descriptor 1f due to such severe anxiety while on a journey will not arise. Otherwise, descriptor 1e would be otiose, since the implication of descriptor 1e being satisfied is that the claimant will suffer overwhelming distress if he or she goes out and so cannot, within the terms of regulation 4(2A), follow the route of a familiar journey without another person or, indeed, even with another person. We note that, in RC, the Judge considered it “extraordinary” that the permanently housebound should score fewer points than those who can sometimes go out, but, as was pointed out in a footnote in HL, the Government’s reasoning is to be found in paragraph 6.13 of the consultation response. We are satisfied that proper effect can be given to the legislation only if, in a case where descriptor 1e is satisfied, overwhelming psychological distress is not taken into account under descriptor 1f. 42. Ms Scolding went further and submitted that, in a case where descriptor 1e is satisfied, descriptor 1f should not be considered at all even if the claimant is, say, blind and so might satisfy descriptor 1f on grounds other than overwhelming psychological distress. We are doubtful about that submission, because the case for regarding the applicability of descriptor 1f as limited by the fact that descriptor 1e is satisfied is weaker than it is where the only ground upon which descriptor 1f might be satisfied is a need for encouragement to avoid overwhelming psychological distress and the submission therefore arguably fails to give adequate effect to regulation 7(1)(b). However, this issue does not arise in any of the present cases and we prefer to leave it to be decided in a case where it does arise.”
“48. Although it will be apparent that we also do not agree with all the reasoning in DA and HL, we nonetheless, consider that it was correctly decided in both cases that the claimants did not satisfy descriptors 1d and 1f as a result of their anxiety. In cases where claimants suffer from severe anxiety, descriptors 1d and 1f must be applied in the light of descriptors 1b and 1e with due regard being had to the use of the term “overwhelming psychological distress”
“19. There is then the question of whether or not the other person as referred to in mobility descriptors 1d and 1f is required to be active (and of course if that person was prompting that would amount to being active) for points to be scored. The tribunal clearly thought there was such a requirement although it did not explain why it believed that to be the case. Prompting, which is referred to in mobility descriptor 1b but not in any other descriptor linked to that activity, is defined within Schedule 1, Part 1 of theSocial Security (Personal Independence Payment) Regulations 2013 as “reminding, encouraging or explaining by another person”
“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.”