Upper Tribunal Allows Appeal Due to Legal Error in Benefits Case

[NAME] v [NAME] ([NAME]) [2020] UKUT 135 ([NAME])

DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.

The decision of the Aldershot First-tier Tribunal dated 18 June 2018 [NAME] file reference SC321/17/00754 involves an error on a point of law. The First-tier Tribunal’s decision is set aside.

The Upper Tribunal is not able to re-make the decision [NAME] appeal. It therefore follows that the Appellant’s appeal against the Secretary of State’s original decision dated 13 December 2016 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.

This decision is given [NAME] section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007. DIRECTIONS

The following directions apply to the hearing:

(1) The appeal should be considered at an oral hearing. This may be a ‘remote’ hearing, e.g. by telephone or, if appropriate, by Skype.

(2) The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 18 June 2018.

(3) The Appellant is reminded that the tribunal can only deal with the appeal, including his health and other circumstances, as they were at the date of the original decision by the Secretary of State [NAME] appeal (namely 13 December 2016).

(4) If the Appellant has any further written evidence to put before the tribunal and, in particular, further medical evidence, this should be sent to the HMCTS regional tribunal office in Cardiff within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State [NAME] appeal (see Direction (3) above).

(5) The new First-tier Tribunal is directed to accept the award of the daily living component by the previous tribunal and accordingly to confine its consideration to the mobility component. Subject to that, the new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

(6) If there has been a further appeal against the renewal decision, then the District Tribunal Judge should consider listing the appeals to be heard together.

These Directions may be supplemented by later directions by a Tribunal Caseworker, Tribunal Registrar or Judge in the Social Entitlement Chamber of the First-tier Tribunal.

[NAME] v [NAME] ([NAME]) [2020] UKUT 135 ([NAME])

REASONS FOR DECISION

This appeal to the Upper Tribunal: the result in a sentence 1. The Appellant’s appeal to the Upper Tribunal succeeds; but there will need to be a fresh hearing of the original [NAME] appeal, confined to the question of entitlement to the mobility component, before a new First-tier Tribunal.

The conundrum in this appeal 2. The conundrum in this case is that the Appellant’s appeal succeeds but not because of the reason he wants it to succeed. At the end of the day he may be no better off, but that depends on the outcome of a further appeal hearing.

The Upper Tribunal’s decision in summary and what happens next 3. I allow the Appellant’s appeal to the Upper Tribunal. The decision of the First-tier Tribunal involves a legal error. For that reason, I set aside the Tribunal’s decision.

4. The case now needs to be reheard by a new and different First-tier Tribunal in Aldershot or another more convenient venue. I cannot predict what will be the outcome of the re- hearing. So, the new tribunal may reach the same, or a different, decision to that of the previous Tribunal. It all depends on the findings of fact that the new Tribunal makes when applying the correct and relevant law.

The Appellant’s contingent request for an oral hearing at the Upper Tribunal 5. In his reply dated 19 June 2019 (p.275) the Appellant stated that he did not want an oral hearing of his Upper Tribunal appeal. However, more recently (letter dated 17 February 2020) the Appellant has stated he would, if required, be willing to attend a hearing in central London if he could travel by taxi. I have considered rule 34. I am satisfied it is fair and just to determine this appeal, which turns on legal issues, on the papers. There will be a new First- tier Tribunal closer to the Appellant’s home which will deal with the factual issues. Given the coronavirus crisis, that re-hearing may be remote (e.g. by telephone).

The mobility descriptors 6. The legal issue at the heart of this appeal turns on the mobility component to personal independence payment ([NAME]). Entitlement to this component is governed by the criteria set out in Part 3 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (SI 2013/377; “the [NAME] Regulations”). There are two generic mobility activities, namely “planning and following journeys” and “moving around”. As the Appellant has noted, the DWP confusingly sometimes refer to these activities numerically as 1 and 2 and sometimes (presumably allowing for the ten daily living activities) as 11 and 12. I follow the former usage as it is what the legislation actually says.

7. At various stages the Appellant has been found to meet the descriptors set out in the moving around activity as descriptors 2b (4 points, so no entitlement), 2d (10 points, standard rate mobility component) and 2e (12 points, enhanced rate mobility component).

8. However, irrespective of any entitlement [NAME] mobility activity 2, the Appellant’s argument throughout has been that, properly analysed, his circumstances meet the condition set out in descriptor 1d (10 points). In other words, he says he qualifies [NAME] 1d as he “cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid.”

9. Part 3 of Schedule 1 to the [NAME] Regulations reads as follows:

[NAME] v [NAME] ([NAME]) [2020] UKUT 135 ([NAME])

PART 3

MOBILITY ACTIVITIES

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

2. Moving around.

a. Can stand and then move more than 200 metres, either aided or unaided.

0

b. Can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided.

4

c. Can stand and then move unaided more than 20 metres but no more than 50 metres.

8

d. Can stand and then move using an aid or appliance more than 20 metres but no more than 50 metres.

10

e. Can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided.

12

f. Cannot, either aided or unaided, – (i) stand; or (ii) move more than 1 metre.

12

The background to this appeal to the Upper Tribunal 10. The relevant decision-making history for the Appellant’s claim to [NAME] is as follows.

11. On 26 June 2015 (see p.84) the Secretary of State’s decision-[NAME] awarded the Appellant the standard rate of the [NAME] daily living component (11 points) and the enhanced

[NAME] v [NAME] ([NAME]) [2020] UKUT 135 ([NAME])

rate of the mobility component (12 points). Both awards were to run from 17 April 2015 to 22 June 2017. The basis of the mobility award was the moving around activity, descriptor 2(e).

12. On 13 December 2016 (see p.173) the Secretary of State’s decision-[NAME] conducted a review and awarded the Appellant the standard rate of the daily living component (11 points) but this time no mobility component (4 points). The award was to run from 13 December 2016 to 17 May 2019. The basis for the decision about the mobility component was the moving around activity, descriptor 2b. That decision was maintained on mandatory reconsideration (pp.187 and 196). The Appellant lodged an appeal.

13. On 18 June 2018 (see p.211) the First-tier Tribunal (FTT) allowed the Appellant’s appeal. [NAME] scored the Appellant at 14 daily living points and 10 mobility points (for moving around descriptor 2d). It followed [NAME] made an award of the enhanced rate of the daily living component and the standard rate of the mobility component. The period of the award was from 13 December 2016 to 17 May 2019 (as before).

14. To bring matters up to date, the Appellant made a further (presumably a renewal) claim on 19 February 2019. The outcome of this new claim is not apparent on the file. However, an Upper Tribunal registrar has made enquiries of the DWP in this regard. It appears the Secretary of State made a further award of [NAME], but this time an award of the standard rate daily living component but no mobility. This was, it seems, on the basis that the Appellant scored 11 daily living points (descriptors 1b, 2b, 3b, 4b, 5b and 6b) and 0 mobility points. This award ran from 18 May 2019 and appears to have been an open-ended award. It is not known whether the Appellant has made an appeal against the new decision. I return to the implications of this later.

15. It may assist to see the different awards set out in a table:

Date of decision Period of [NAME] award Daily Living Component Mobility Component (1) 26.05.2015 ([NAME]) 17.04.2015 to 22.06.2017

Standard rate (11 points) Enhanced rate (12 points, 2e) (2) 13.12.2016 ([NAME]) 13.12.2016 to 17.05.2019 Standard rate (11 points) No award (4 points, 2b) (3) 18.06.2018 (Tribunal) 13.12.2016 to 17.05.2019 Enhanced rate (14 points) Standard rate (10 points, 2d) (4) Renewal decision ([NAME]) 18.05.2019 onwards Standard rate (11 points) No award (0 points)

16. The First-tier Tribunal’s decision dated 18 June 2018 (decision (3)) obviously replaced the Secretary of State’s decision of 13 December 2016 (decision (2)). Subject to that qualification, the various decisions are not necessarily inconsistent with one another, despite the variations in the levels of the components. The Appellant’s condition and its effects on his daily living and mobility may have varied at different dates. The available evidence may have been different at the various times.

The reasoning behind the June 2018 First-tier Tribunal’s decision 17. In its statement of reasons, [NAME] explained its decision not to award the Appellant any points for mobility activity 1 in the following terms:

“1) Planning and following a journey: [The Appellant] is an intelligent man who worked in accountancy until his stroke and fortunately has not suffered any enduring cognitive impairment because of it; he confirms he can plan a journey and use standard navigational equipment. He is able to travel to his local town centre unaccompanied.

[NAME] v [NAME] ([NAME]) [2020] UKUT 135 ([NAME])

[The Appellant] is able to manage unfamiliar journeys unaccompanied, as long as it is relatively simple and does not involve long walks. He prefers to be accompanied because he feels more secure in case he falls, but he is able to rise unassisted and has sustained no significant injury as a result of such falls. He is able to use a stick to assist with his balance issue. [The Appellant] also believes that if accompanied this would extend the distance he would be able to walk. [The Appellant’s] access to [NAME] is limited by the distance he can walk which make bus stops, platforms etc hard to reach or negotiate (p.182). This physical limitation is properly addressed and reflected in the ‘mobility’ [sic – presumably what was meant was ‘moving around’) activity. The Tribunal appreciated [the Appellant] believes 10 points should be awarded for this activity but decided [the Appellant] fulfils the parameters of this activity the majority of the time. No points awarded.”

18. At this juncture I just make two observations on [NAME]’s reasoning.

19. First, and unfortunately, the meaning of [NAME]’s reasoning got rather mangled in the penultimate two sentences of this passage. However, from the wider context it is clear [NAME] meant to say “The Tribunal appreciated [the Appellant] believes 10 points should be awarded for this activity but decided [the Appellant] does not fulfil the parameters of this activity the majority of the time.” Alternatively, and achieving the same result, the Tribunal could have meant “The Tribunal appreciated [the Appellant] believes 10 points should be awarded for this activity but decided [the Appellant] fulfils the parameters of activity 1a the majority of the time.” This sort of typographical error does not amount to a material error of law where [NAME]’s meaning overall is perfectly clear.

20. Secondly, in its reasoning [NAME] referred to p.182 of the bundle. This was the Appellant’s letter disputing the level of the award dated 13 December 2016. In doing so, the Appellant claimed that mobility activity 1d ― “cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid” ― applied to him. By way of explanation, the Appellant added (p.183):

“The criteria specifically say:

‘A person should only be considered able to follow an unfamiliar journey if they would be capable of using [NAME]’.

I can’t physically either walk to the nearest bus stop/ train station, or use buses/trains when I get there. I currently have to use taxis for hospital/ dental appointments etc.”

The application for permission to appeal 21. The Appellant reiterated the same point in his application to the Upper Tribunal for permission to appeal. He continued (emphasis as in the original):

“I am incapable of using [NAME]. The evidence for this is my statements (both written and oral) and a written statement by my physiotherapist (fully qualified, 30+ years of experience, sees me once a week). Together we hold the dubious honour of being the 2 people in this world who know most about my stroke and subsequent disability. The evidence against is NONE!! Not a single person, medical or not, who has had anything to do with my stroke and subsequent partial recovery has ever even suggested they felt I am capable of using [NAME], much less submitted anything into any of the 199 pages of evidence.”

[NAME] v [NAME] ([NAME]) [2020] UKUT 135 ([NAME])

22. For the avoidance of doubt, I should note that there has never been any dispute as to the Appellant’s inability to access [NAME]. That can be taken as a ‘given’ in this appeal. But it does not necessarily get him home as regards mobility activity 1.

23. Upper Tribunal Judge Poynter subsequently gave permission to appeal. In doing so, and unusually, the Judge was “not at present persuaded that it [was] arguable” that [NAME] had erred in law. Rather, Judge Poynter gave permission to appeal as he considered there was “some other good reason” for doing so, namely whether the official DWP guidance on mobility activity 1 (as cited by the Appellant) properly reflected the relevant legal test as laid down in the [NAME] Regulations. The case has since been transferred to me for decision.

The appeal proceedings before the Upper Tribunal 24. The appeal to the Upper Tribunal is supported by [NAME], the Secretary of State’s representative, but not on the ground advanced by the Appellant. In [NAME]’s submission, [NAME] came to the right decision on mobility activity 1 (planning and following a journey) and for the right reasons. However, [NAME] argues that [NAME] erred in law on its approach to mobility activity 2 (moving around), in that it failed to provide adequate reasons for its decision that the Appellant did not satisfy mobility descriptor 2e. In particular, [NAME] did not address the issue of ‘repeatability’ in terms of the Appellant’s ability to mobilise (see regulation 4(2A) of the [NAME] Regulations). That is enough to allow the appeal. But the Appellant makes a different point.

25. The Appellant, in his reply, focuses on and maintains his arguments in connection with mobility activity 1 and does not directly address the support of the Secretary of State’s representative for his appeal as regard mobility activity 2. However, by inference the Appellant argues that he is entitled, in aggregate, to at least 20 points for mobility activities 1d and 2d, if not 22 points for mobility activities 1d and 2e. Either way, on the Appellant’s submission, he is entitled to the enhanced rate of the [NAME] mobility component and so the precise descriptor for activity 2 is, in his eyes, perhaps somewhat academic.

The Upper Tribunal’s analysis of the primary ground of appeal Introduction 26. The main issue on this appeal concerns the Appellant’s claim that descriptor 1d applies to him as (and as is not disputed) he is unable to access [NAME]. The principal basis for the Appellant’s argument is the passage in the official DWP guidance (the [NAME] assessment guide part 2: the assessment criteria, updated 30 September 2019, available online at https://www.gov.uk/government/publications/personal-independence-payment- assessment-guide-for-assessment-providers/pip-assessment-guide-part-2-the-assessment- criteria#mobility-activities. This document undoubtedly states (at p.109 of the hard copy) as follows, in relation to descriptor 1(d):

“A person should only be considered able to follow an unfamiliar journey if they would be capable of using [NAME] – the assessment of which should focus on ability rather than choice.”

27. However, there are three inter-connected reasons why the Appellant’s argument on this point cannot succeed.

The status of the [NAME] Assessment Guide 28. The first reason is that the passage cited above is, quite simply, not the law. It is a DWP interpretation of, or a gloss on, the law. As Upper Tribunal Judge Williams observed in MF v Secretary of State for Work and Pensions ([NAME]) [2015] UKUT 554 ([NAME]) (at paragraph 22) “it must be emphasised that this guidance reflects the view of the Secretary of State and advisers. It is not the law.” Similarly, as Upper Tribunal Judge Wright expressed it even more

[NAME] v [NAME] ([NAME]) [2020] UKUT 135 ([NAME])

firmly in MM and BJ v Secretary of State for Work and Pensions [2016] UKUT 490; [2017] AACR 17, at paragraph 33:

“The [NAME] Assessment Guide in particular is no more than the DWP’s view of how the regulations once enacted were thought to apply for the benefit of those carrying out the [NAME] assessments. Its legal worth as a permissible aid to statutory construction therefore seems negligible, if not non-existent.”

29. Thus, Judge Jacobs had described the Guide as “irrelevant” to the issue he had to determine in Secretary of State for Work and Pensions v IV ([NAME]) [2016] UKUT 420 ([NAME]), a case in which the Secretary of State was relying on the official guidance to support a particular construction. Instead:

“Entitlement to a personal independence payment is governed by the Welfare Reform Act 2012 and Regulations made thereunder, principally the Social Security (Personal Independence Payment) Regulations 2013” (paragraph 19).

30. I recognise that there have been several Upper Tribunal decisions in which judges have noted that their construction of descriptors in the [NAME] Regulations is consistent with the interpretation advocated in the [NAME] Assessment Guide (see e.g. TK v Secretary of State for Work and Pensions ([NAME]) [2020] UKUT 22 (at paragraphs 24-25)). Such decisions are themselves entirely consistent with the principle embodied in the case law summarised above, namely that the tail (the [NAME] Assessment Guide) cannot wag the dog (the proper interpretation of the legislation).

The legislative scheme as a whole 31. The second reason is that the Appellant’s argument is not consistent with the legislative scheme as a whole. The leading case on the construction of mobility activity 1 remains the decision of the three-judge panel of the Upper Tribunal in MH v [NAME] ([NAME]) [2016] UKUT 531 ([NAME]); [2018] AACR 12. The three-judge panel held that the interpretation of the individual descriptors “must be considered in the light of the natural or ordinary meaning of the descriptors and the structure of the activity” (at paragraph 35). The genesis of that case is significant. The three-judge panel was convened to resolve two conflicting lines of authority in decisions by judges of the Upper Tribunal sitting alone.

32. In [NAME] v Secretary of State for Work and Pensions ([NAME]) [2015] UKUT 344 ([NAME]), Upper Tribunal Judge Jacobs had held that 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” (at paragraph 13).

33. By contrast, in [NAME] v Secretary of State for Work and Pensions ([NAME]) [2015] UKUT 386 ([NAME]), Upper Tribunal Judge Sir Crispin Agnew of Lochnaw Bt QC had rejected the Secretary of State’s submission that the term “follow the route” was concerned exclusively with the ability to navigate and therefore with problems stemming from sensory or cognitive impairment but not from conditions such as anxiety.

34. Finally, in [NAME] v Secretary of State for Work and Pensions [2015] UKUT 694 ([NAME]), Upper Tribunal Judge Ward had preferred the approach adopted by Judge Jacobs. Judge Ward observed 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.’”

[NAME] v [NAME] ([NAME]) [2020] UKUT 135 ([NAME])

35. The three-judge panel in MH, at least as regards that particular issue, concluded that the correct approach was that taken in [NAME] as against the view expressed in [NAME] and [NAME]:

“36. As was said in [NAME], mobility descriptors 1d and 1f do not contain any reference to navigation. We agree with the rejection in [NAME] and [NAME] of the Secretary of State’s argument that the references to an assistance dog and an orientation aid indicate the type of assistance that might be provided by a person in a case where descriptor 1d or 1f applies and so throw light on the meaning of the phrase “follow the route”. The context does not require the words “another person” to be given such a narrow meaning. The phrase “follow the route”, when given its natural or ordinary meaning, clearly includes an ability to navigate but we do not consider that it is limited to that. Navigation connotes finding one’s way along a route, whereas “follow a route” can connote making one’s way along a route or, to use one of [NAME]’s dictionary definitions, “to go along a route” which involves more than just navigation.”

36. The Upper Tribunal in MH also held that “the use of the word “navigate” in [NAME] and [NAME], taken from the Secretary of State’s submissions in those cases, may sometimes be unhelpful to the extent that it glosses the statutory wording. It tends to focus too closely on a person’s ability to find his or her way along a route, whereas a need to be supervised in order to make one’s way along a route safely is as important” (paragraph 37). However, there is nothing in the Upper Tribunal’s analysis to suggest that the three-judge panel took the view that a purely physical inability to progress on foot would score points in terms of an ability to follow a route.

37. The three-judge panel in MH also considered the inter-relationship between mobility activities 1 and 2 (see paragraphs 49-52). Whilst they did not specifically address the issue that arises on this appeal, they did observe as follows:

“51. We accept there is no statutory restriction to the effect that mental health problems may only be considered [NAME] mobility activity 1 or, for that matter, to the effect that only physical problems may be considered [NAME] activity 2. Nevertheless, it is abundantly clear from the actual wording of the descriptors that mobility activity 1 is designed to relate to those who have limitations in consequence of mental health and sensory concerns and activity 2 to those who have physical concerns. In our judgment a physical inability to stand and then move is what is required in order to trigger any entitlement to points [NAME] the activity 2 descriptors. However, we also accept that claimants who have symptoms which emanate from a mental health condition but which are nevertheless experienced as physical symptoms could potentially qualify in appropriate cases [NAME] activity 2, following the reasoning in NK. At the end of the day, there was not really any difference between the parties on those issues.”

38. In his reply to the Secretary of State’s response to this appeal, the Appellant prays in aid this passage, and especially the first sentence of paragraph 51. This shows, he argues, that while mental health conditions may well predominate for the purposes of mobility activity 1, physical problems cannot be disregarded. The problem with this submission is that it reads the terms of descriptor 1d in splendid isolation, without considering the ordinary meaning of the words and the overall context. There is nothing in MH (or the three previous decisions of single judges that were considered) which would suggest that a purely physical problem in getting from A to B gives rise to entitlement [NAME] descriptor 1d.

39. The point can also be put this way. If the Appellant’s submission on the construction of mobility activity 1 holds good, it does not simply mean that he qualifies for 10 points [NAME] descriptor 1d, on the basis that he “cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid”. By the same logic, he should rather score 12 points for descriptor 1f on the basis that he “cannot follow the route of a familiar journey

[NAME] v [NAME] ([NAME]) [2020] UKUT 135 ([NAME])

without another person, assistance dog or orientation aid”. His contention, after all, was that he could not access [NAME] e.g. by reference to a local bus stop or railway station, which involve (very) familiar routes. The only point of difference between descriptors 1d and 1f is whether the route involves a familiar or unfamiliar journey. That distinction must be there for a purpose: words matter, especially in legislation. The semantic difference between descriptors 1d and 1f makes perfect sense in the case of a claimant with a cognitive or mental health impairment – the claimant who cannot manage to follow a familiar route is more disabled than the one who can manage familiar routes but cannot follow the route of an unfamiliar journey. But if the disabling condition is a physical restriction on progressing on foot (to stand and to move), then the familiarity or otherwise of the route becomes a distinction without a difference.

40. There is no doubt that the construction I have set out is consistent with the intent of the policymakers, insofar as that may have any relevance. This is demonstrated by The Government’s response to the consultation on the Personal Independence Payment Assessment Criteria and Regulations” (December 13, 2012 (the “consultation response”). This set out the Government’s thinking as follows:

“6.15 A number of respondents asked about how people who [use] taxis to make journeys will score in this activity. This depends on the reason for the use of the taxi. If it is entirely because of a physical barrier to mobility, they would not score in this activity. However, if the use of a taxi is because they are unable to follow the route of a journey without another person present, they can potentially score.”

41. The three-judge panel in MH ruled that the consultation response could “properly be used as an aid to the construction of the 2013 Regulations because it represents the considered view of the Secretary of State after he had taken into account the representations made by consultees and immediately before he, as legislator, made those Regulations” (at paragraph 34). However, the Upper Tribunal also stressed that the starting point must remain the wording of the legislation, as explored above.

The DWP guidance as a whole 42. The third reason is that, in any event, and on a fair reading of the [NAME] Assessment Guide as a whole, the official DWP guidance (even it if were legally relevant) does not in fact support the Appellant’s case. The general guidance on mobility activity 1 (p.109 if the hard copy version) reads as follows (with emphasis added):

“This activity considers a claimant’s ability to plan and follow the route of a journey. It is useful separately to consider:

• ability to plan the route of a journey in advance • ability to leave the home and embark on a journey and • ability to follow the intended route once they leave the home

This activity is designed for limitations on mobility deriving from mental health, cognitive and sensory impairments, whereas activity 12 is generally designed for limitations from physical problems. Cognitive impairment includes orientation (understanding of where, when and who the person is), attention, concentration and memory. Any issues with the ability to stand and then move are not applicable [NAME] activity 11, but [NAME] activity 12.

Regarding falls, consideration must be given to how the risk of falling manifests itself. Ordinarily the risk to a claimant’s safety arising from a physical inability to move safely would be applicable [NAME] activity 12. However, where the fall arises as a result of a sensory or cognitive impairment (for example, seizures associated with loss of consciousness) the risk of the fall to a claimant’s safety would be applicable [NAME] v [NAME] ([NAME]) [2020] UKUT 135 ([NAME])

activity 11. When assessing which descriptor might apply, consideration also needs to be given to any risks to an individual arising during the “recovery” period (for example, any post ictal confusion).

11d or 11f only apply where a claimant could not reliably make their way along a route without an accompanying person, assistance dog or orientation aid. The presence of another person out of preference, is not sufficient.”

43. The two main paragraphs (immediately after the three bullet points) give no real support for the Appellant’s arguments. Indeed, the italicised passages demonstrate a directly contrary intent.

44. Nor is the more specific guidance on descriptor 1d any more helpful to the Appellant’s case. The single sentence on which the Appellant relies must be read in its context. The preceding paragraph reads as follows (p.111 of the hard copy [NAME] Assessment Guide):

“This descriptor is most likely to apply to claimants with cognitive, sensory or developmental impairments, or a mental health condition that results in overwhelming psychological distress, who cannot, due to their impairment, work out where to go, follow directions, follow a journey safely or deal with minor unexpected changes in their journey when it is unfamiliar. A claimant who suffers overwhelming psychological distress whilst on the unfamiliar journey and who needs to be accompanied to overcome the overwhelming psychological distress may satisfy descriptor 1d.”

45. It follows that when the guidance goes on to state that “a person should only be considered able to follow an unfamiliar journey if they would be capable of using [NAME]”, the focus is on the ability or inability to follow an unfamiliar journey. The capacity of “using [NAME]” must be read in context as relating back to some form of cognitive impairment or mental health condition. So, for example, the simple fact that a claimant may be able to drive to an unfamiliar destination does not necessarily mean they can “follow the route of an unfamiliar journey, as a holistic assessment needs to be made” (see SB v Secretary of State for Work and Pensions ([NAME]) [2019] UKUT 274 ([NAME])).

46. Be all that as it may, I reiterate the point that the [NAME] Assessment Guide is just that, namely an assessment guide and not an authoritative statement of the law relating to [NAME].

Conclusion on the primary ground of appeal 47. It follows that the Appellant’s primary ground of appeal does not succeed. The First-tier Tribunal did not err in law in deciding that the Appellant failed to qualify for any points [NAME] mobility activity 1 (planning and following a journey).

Conclusion on the secondary ground of appeal 48. I agree with [NAME] for the Secretary of State that the First-tier Tribunal did err in law in its approach to mobility activity 2 (moving around), for the reason summarised at paragraph 24 above. I am satisfied that the First-tier Tribunal erred in law for that reason and no other. I therefore allow the Appellant’s appeal to the Upper Tribunal, set aside the Tribunal’s decision and remit (or send back) the original appeal for re-hearing to a new tribunal, which must make a fresh decision. I formally find that the Tribunal’s decision involves an error of law on the secondary ground as outlined above.

What happens next: the new First-tier Tribunal 49. There will therefore need to be a fresh hearing of the appeal before a new First-tier Tribunal. Unfortunately, the new Tribunal will have to focus on the Appellant’s circumstances as they were as long ago as at December 2016, and not the position as at the date of the new hearing, which will obviously, and regrettably, be more than three years later. This is

[NAME] v [NAME] ([NAME]) [2020] UKUT 135 ([NAME])

because the new Tribunal must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998). The original decision by the Secretary of State which was appealed was taken on 13 December 2016.

50. I have considered whether I should only set aside that part of the First-tier Tribunal’s decision that dealt with the [NAME] mobility component. Such a course of action is possible in special circumstances (see KM v Secretary of State for Work and Pensions ([NAME]) [2018] UKUT 296 ([NAME])). However, given that the relevant [NAME] award has already expired, and been replaced by the renewal award, nothing is to be gained by such an approach. However, I do direct the new First-tier Tribunal that it need not examine the daily living component. Instead, I direct the new tribunal to accept the award of the daily living component. I bear in mind that there is a considerable overlap between the First-tier Tribunal’s award of the enhanced rate daily living component (for descriptors 1e, 2b, 3b, 4e, 5b and 6b) and the renewal award at the standard rate (1b, 2b, 3b, 4b, 5b and 6b). I also bear in mind that there has been no challenge in the present proceedings by the Secretary of State’s representative to the First-tier Tribunal’s reasoning or conclusions on the daily living component. In all those circumstances it is not fair and just to revisit the daily living component for the past closed period in question.

51. Subject to that, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to the mobility component of [NAME] for the relevant period (and, if so, at what rate). That is a matter for the good judgement of the new Tribunal. That new Tribunal must review all the relevant evidence and make its own findings of fact.

52. I should also add that on the information before me it is unclear when the Secretary of State’s decision-[NAME] made a decision on the Appellant’s entitlement on the renewal claim dated 19 February 2019. Nor is it clear whether the Appellant has lodged an appeal against the level of the award in the renewal decision. It is possible that he may have mistakenly considered his present challenge to the First-tier Tribunal’s decision also amounted to a challenge to the decision on the renewal claim. In any event, the Appellant had a month from the date of the mandatory reconsideration decision in which to lodge a further appeal, subject to a possible extension for a period of a further 12 months. The maximum limit is therefore effectively 13 months.

53. Assuming there is a further appeal against the renewal claim decision, then it may well make sense for both the remitted appeal and the new appeal to be heard by the same tribunal. That is matter best left to the District Tribunal Judge who is responsible for making re-listing directions.

Conclusion 54. I therefore conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)). My decision is as set out above.

Signed on the original

[NAME] on 21 April 2020

Judge of the Upper Tribunal