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Summary

The claimant was entitled to the standard rate of the daily living component and the standard rate of the mobility component for a fixed period from 27 June 2013 to 14 January 2017. On 16 January 2016 she was notified of a ‘planned review’ of her award. Following completion of a form and a medical, a decision was made on 31 May 2016 superseding the award and removing all entitlement from the date of the supersession decision. Following an unsuccessful mandatory reconsideration, the claimant appealed. The First-tier Tribunal held that there were ‘no grounds’ for the supersession and reinstated the award up to the expiry date of 14 January 2017. But it also decided to make a reduced award beyond the expiry date, awarding only the standard rate of the daily living component.

Judge Bano held that the tribunal had erred on holding that there were no grounds for a supersession on 31 May 2016. Under regulation 26(1)(a) of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, No.381, a supersession ground always exists where the Secretary of State has received medical evidence from a healthcare professional (or other approved person), and it was not necessary to establish a change of circumstances or any other ground for the supersession. That did not of course relieve tribunals in such cases from the need to give an adequate explanation of their decision where they had decided to part from an earlier award (paragraph 7).

There had been no error in also making an award beyond the expiry date of the original decision. Apart from the usual ability only to take into account circumstances down to the date of the supersession decision which is under appeal, the powers of the tribunal in an appeal against a regulation 26(1)(a) supersession decision were ‘not fettered in any way by the terms of the of the decision which has been superseded’. If the original award was for a fixed period which has come to an end prior to the determination of the appeal and the claimant has not made a new claim, there was ‘nothing to prevent a tribunal from making a supersession decision awarding whatever benefit it considers the claimant to be entitled to for a period extending beyond the expiry date of the original award’ (paragraph 8). On the facts of the present case, there was no dispute about the claimant’s lack of entitlement to the mobility component and, given the availability of a supersession ground from 31 May 2016, there was no reason not to remove it from that date, even though the tribunal had not erred in awarding the daily living component for a further period.

Comment from CPAG

It is worth emphasising that although receipt of a new official medical report is in itself a ground for supersession and (where the claimant has not claimed again) tribunals can revisit expiry dates in a decision, tribunals are still obliged to explain why they consider that entitlement should be changed.

Summary

The claimant was in receipt of PC, including the addition for severe disability (referred to here as the severe disability premium). When the DWP became aware that in fact the claimant had a grown-up son living with her, her award was revised to remove the severe disability premium and make a recoverable overpayment decision, on the basis that she had been overpaid the premium for several years and had misrepresented herself as living alone. However, the relevant form in which the misrepresentation was allegedly made, form PC 10, was no longer available. The First-tier Tribunal noted that the claimant had (without dishonest intent) made similar misrepresentations in the context of two previous claims for income support, and decided on the balance of probability that the claimant had misrepresented her situation on the PC 10 form.

Judge Gray dismissed the claimant’s further appeal. On the facts of the case, there was sufficient evidence in order to reconstruct the missing form, which was what the First-tier Tribunal had done. The claimant’s prior misrepresentations on the same issue were evidence of the sort referred to by Judge Ward in MK v SSWP [2011] UKUT 12 (AAC), where he said that where misrepresentation in a claim form was alleged and the form was not available, there would have to be ‘sufficient secondary evidence’ (paragraph 34). The First-tier Tribunal had decided that the claimant had misrepresented herself on the PC 10 form by making ‘rational deductions’ from the evidence, which was permissible, ‘rather than assumptions, which are not’ (paragraph 46).

The judge rejected an argument from the claimant that it was not permissible to make a finding of misrepresentation in the absence of the form. She also considered the argument that the reasoning of Commissioner (as he then was) Williams in CG/3049/2002 applied. There, he had said that if there was no evidence, the tribunal should not guess or make assumptions. But he also said that the tribunal should do its best to reconstruct the form. The correct question in the present case was therefore whether the tribunal had done that, ‘without resorting to assumption, including the assumption that the Department was less likely to make a mistake than the claimant’ (paragraph 29). The judge also considered the application of the principle of ‘the presumption of regularity’ – ie, so that officials could be supposed not to have made a mistake. Reviewing authority, the judge noted that such a presumption was rebuttable, and was ‘a tool, rather than a key’. On the facts in this case, it was plain that the presumption of regularity was not decisive, rather that the significant factor was the claimant’s prior misrepresentations (paragraph 41).

Comment from CPAG

Clearly, in this case what was important was the facts of the case, the tribunal’s legitimate deductions from those facts and the application of the balance of probability. Although the presumption of regularity was not central to Judge Gray’s decision, it seems clear that in itself that principle should not be used to decide against a claimant.

Summary

The claimant was held to be not entitled to PIP because he failed, allegedly without ‘good reason’, to attend the medical. Following mandatory reconsideration, he appealed against that decision to the First-tier Tribunal. Before that was heard, he attended a rearranged medical appointment. The department indicated that it did not consider the claimant scored sufficient points to be entitled. Eventually, his appeal was struck out by a district judge, on the basis that his appeal had lapsed and in any case the claimant had not applied for a mandatory reconsideration of the subsequent refusal of entitlement following the rearranged medical.

Judge Wikeley allowed the claimant’s further appeal (against the purported striking out) and remitted the case to a fresh tribunal. The district judge had erred in striking out the appeal, both on the basis that the appeal had lapsed and that the claimant had needed another mandatory reconsideration. In striking out the appeal, the tribunal had breached the rules of natural justice by not giving the claimant an opportunity (as also specifically required under the tribunal rules) to make representations regarding the proposal to strike the appeal out (paragraphs 41–46). In any event, the claimant’s appeal had not actually lapsed. Reviewing some fundamentals of social security decision making, the judge pointed out an accepted distinction between ‘outcome’ decisions (ie, those which actually decide entitlement and which can only be changed by revision, supersession or appeal) and ‘building block’ or ‘stepping stone’ determinations made along the way to the decision, which are important but not in themselves outcome decisions (paragraphs 50–51).

In the present case, a conclusion that the claimant did not have good reason for missing the medical was a stepping stone determination rather than an outcome decision (paragraph 50). In the PIP rules, such a determination required the making of a ‘negative determination’ that the claimant does not have limited ability in the relevant test, but that was still not an outcome decision, which was the decision that the claimant was not entitled to PIP (paragraphs 52–55). Applying those principles to the present case, the actual outcome decision had not been changed (ie, on revision or supersession) and all that had actually happened was that the claimant had been allowed to attend a rearranged medical. As there was no change to the decision under appeal, there was no basis for lapsing it (paragraphs 60–61). The indication given by the department after the rearranged medical that the claimant did not score sufficient points was at most a ‘recommendation’ and not a new decision. It followed that there could be no mandatory reconsideration of such a ‘non-decision’; regarding his still extant appeal, the claimant clearly had already satisfied the mandatory reconsideration requirement (paragraphs 63–66).

Summary

The claimant was a Polish national. Her right to reside depended on her counting as a self- employed person. Following notification of a decrease in hours, the local authority terminated her HB on the basis that: ‘your earned income has decreased to an amount below the required threshold for EEA Nationals for your work to be considered “genuine and effective”’. That decision was upheld by the First-tier Tribunal.

Judge Jacobs allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in following the decision maker’s approach and decision. That was because both had misapplied the law regarding what is ‘genuine and effective work’ by misapplying official guidance about this and the use of a ‘minimum earnings threshold’. For HB, guidance on this was in HB Circular A3/2014. That provides that where the claimant is earning at the threshold, her/his work will automatically count as ‘genuine and effective’, but where s/he does not satisfy the threshold, ‘a further assessment will be undertaken against a broader range of criteria (such as hours worked, pattern of work, nature of employment contract, etc.) ’ to decide whether the employment is genuine and effective.

Judge Jacobs said that the circular ‘is not law, but there is nothing wrong with it when it is read and understood’. It contained a concession that the work will be genuine and effective if the claimant’s earnings meet the threshold, but that if they did not then other criteria, ‘which accurately record the approach required by EU law’ should be applied (paragraph 3). The tribunal (like the decision maker) had either never read the guidance or if it did had misunderstood it. That was because it had applied the minimum earnings threshold as a rule of law and ignored the guidance to use the other, broader criteria if the threshold was not met (paragraphs 4 and 5).

Comment from CPAG

The ‘minimum income threshold’ is sometimes cited by decision makers, wrongly, as a complete test of whether work is ‘genuine and effective’. This decision provides a clear corrective to that, while not doubting that meeting the threshold is one way of satisfying that requirement.

Summary

The claimant suffered from a number of health conditions, including anxiety resulting in loss of confidence in social interaction. In their reasons for refusing her appeal, the First-tier Tribunal included that the medical member of the tribunal advised on number of potential treatment options, and said that, ‘the Tribunal was unclear why there was no corresponding treatment for the appellant if her difficulties were known to the GP and the Tribunal was entitled to conclude that the appellant’s symptoms were actually mild.’

Judge Poynter allowed the claimant’s further appeal on a number of points, with the overarching one being that, on the facts, it failed to deal in sufficient detail with the evidence of the examining healthcare professional regarding the descriptors for getting about and coping with social engagement (paragraph 20). But he also disagreed that the tribunal had been ‘entitled to conclude’ that the claimant’s anxiety symptoms were mild from the fact that it was unclear why there was no corresponding treatment for it (paragraph 47).

The judge held that, ‘tribunals should be very cautious about drawing inferences from the treatment received by claimants’ (paragraph 38). Medicine is a ‘broad church’ with a wide spectrum of reasonable opinion and practice, and treatment a matter of professional judgement (paragraphs 40–41). The medical member of the tribunal in this case may well have been justified in believing that there were a number of potential treatments, but the claimant’s GP may have believed differently regarding his patient (paragraph 42). There was ‘a real risk that drawing inferences about function from treatment will in some cases lead the Tribunal to conclude that claimants do not suffer from the loss of function they describe because they are not being correctly treated for it’, which was not a permissible conclusion (paragraphs 45–46).

Thanks to Peter Turville of Oxfordshire Welfare Rights, the claimant’s representative, for sending us this decision.

Summary

The claimant was refused UC on the basis that she did not have a right to reside. The First-tier Tribunal upheld that decision. This was despite the fact that the claimant had been issued with a registration certificate and fell to be an ‘extended family member’ of her unmarried partner who was a migrant European Union (EU) worker, and had been so for a continuous period of over five years.

Judge Poole QC allowed the claimant’s further appeal, and substituted a decision that the claimant had a permanent right to reside and therefore satisfied the basic condition of being ‘in Great Britain’. This permanent right to reside had been acquired after five years as the extended family member (with a registration certificate) of her unmarried partner, a migrant EU worker. The tribunal had erred in failing to identify that (paragraph 5). The extended family member status was by virtue of regulation 7(3) of the Immigration (European Economic Area) Regulations 2006, No.1003 (the ‘right to reside regulations’, revised in 2013). The permanent right to reside after five continuous years with that status was by virtue of regulation 15(1)(a) of those regulations (paragraphs 3 and 5).

The appeal was supported by the Secretary of State. It was accepted that (as held by the First-tier Tribunal) jobseeker status could not be an effective right to reside for the claimant’s entitlement to UC, as that status was specifically excluded by regulation 9(3)(aa) of the Universal Credit Regulations 2013, No.376 (paragraph 3). The judge also agreed that the claimant did not fall to be treated as ‘in Great Britain’ by satisfying any of the categories set out in regulation 9(4) – eg, the claimant was not herself a migrant EU worker or self-employed person. But the situations in regulation 9(4) were not the only bases on which a person could be ‘in Great Britain’ (ie, have an effective right to reside for UC) (paragraph 5). On the facts, the claimant had a right to reside, namely a permanent right to reside under regulation 15(1)(a) of the right to reside regulations.

Comment from CPAG

This decision is a reminder that the specific categories mentioned in regulation 9 of the Universal Credit Regulations are not a complete statement of right to reside categories, and that the mere fact that someone is a jobseeker, although not an effective right to reside for UC in itself, does not actually bar a claimant from having some other effective right to reside.

Summary

The claimant was a sole trader in his business as an author, musician, publisher and creator of his own intellectual property. He wrote books and composed and recorded music, working on average 11 hours a day. He kept books of account and recorded expenses. During a sample period, his profit was around £8.44 a week. Having originally been awarded WTC, his entitlement was removed on the basis that the work was not (as required under the rules) ‘on a commercial basis’. On appeal, the First-tier Tribunal found that the claimant did not count as self-employed because ‘his activities are not commercial in the sense that they are quite unprofitable and have been so for many years’, and could not be described as ‘genuine and effective’.

Judge Poole QC allowed the claimant’s further appeal. Construing the meaning of ‘on a commercial basis’ in regulation 2(1) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002, No.2005, the judge held that the tribunal had erred in finding that self-employment is not commercial on the basis that it is unprofitable (paragraph 25). That was for a number of reasons. The statutory context for the definition at regulation 2(1) was the general policy intention of making work pay, and if ‘commercial’ was read as ‘profitable’ that could wrongly exclude a number of low-paid people who were genuinely working from universal credit. The definition (as amended in 2015) was to prevent abuse of the system and bogus self-employment, not to prevent genuine self-employment from qualifying for WTC. The amendments did not use the word ‘profitable’. Using profitability as the touchstone of commerciality ignored the core meaning of commercial. ‘Commercial’, held the judge, ‘is essentially about commerce, or buying and selling, and in my opinion that should be the focus...’ (paragraph 25.4). The tribunal was also wrong to use a test of whether the work was ‘genuine and effective’. Although those words were used in explanatory material in the 2015 amendments to the definition, the judge accepted HM Revenue and Customs’ submission that ‘“genuine and effective” is not a concept which assists’ in the definition of self-employment (paragraph 27).

Comment from CPAG

This decision involves an extensive discussion of the approach to the meaning of ‘on a commercial basis’ and regarding the issue of profitability and use of a ‘genuine and effective’ test, and should be treated as the leading decision.

Summary

The claimant had been in receipt of tax credits as a single person. However, HM Revenue and Customs (HMRC) decided to remove entitlement on the basis that the claimant was married to, and not separated from, her husband. That decision was upheld by the First-tier Tribunal. There was no dispute that the claimant was married, as she was married in an Islamic ceremony in Pakistan in 2005 and was not divorced. The tribunal concentrated on whether she was separated in circumstances under which the separation was likely to be permanent. The tribunal took into account a number of facts including that the husband had no permanent address and had keys to the claimant’s property; that he had post delivered to her address; that his name was on the electoral roll at the address; that the claimant had not applied for a single person discount to the council tax; and that they had a joint bank account. The tribunal had also issued a direction that the husband was to attend the hearing, which it instructed the claimant to tell him, and drew an adverse inference from his non-attendance.

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a fresh tribunal. He agreed with HMRC’s submission that although the tribunal had identified the correct legal test, it had erred by placing undue weight on certain aspects of the relationship and failing to address the claimant’s evidence about how the relationship had changed since 2009 (paragraphs 7–9).

Regarding the tribunal’s direction that the husband should attend, the judge said that although entitled to make such a direction, the tribunal seem to have proceeded on the assumption that this was up to the claimant, when the whole basis of her case was that they were estranged. The drawing of an adverse inference from his non-attendance was confused, as one reason for that could indeed be that he did not support the appeal because although he considered they were not separated, in fact they were (paragraphs 17–18). Also, the tribunal had been vague in its fact finding and reasoning. The claimant made very clear arguments explaining her living arrangements in the context of family involvement, and there were a number of ‘contraindications’ to HMRC’s case including that the claimant had no financial support from her husband, and portrayed herself as happily married in order to avoid ‘shame’ on the family, but these were not adequately addressed (paragraphs 24–35). More widely, the tribunal had not viewed the facts ‘through the prism of any relevant cultural context’. Cultural differences (between claimant and tribunal) could apply in the context of relationship breakdown and divorce, and the claimant had specifically said that her cultural background involved family pressures to behave in a certain way (paragraphs 40–48).

Comment from CPAG

The overall message for tribunals is best summed up by Judge Wikeley’s introduction to the decision: 

‘This case is a classic example of why it is important for tribunals to be alive to cultural issues when determining appeals, especially when assessing a party’s evidence about intimate matters relating to personal relationships… to rework an old saying, before you judge a woman, walk a mile in her shoes.’

Summary

The claimant had epilepsy which resulted in seizures that were unpredictable and followed no particular pattern. He had a seizure on the day of his scheduled medical under the work capability assessment and did not attend. Both the decision maker and the subsequent First-tier Tribunal decided that he did not have ‘good cause’ for not attending and, therefore, was not entitled to ESA. This was because it considered that the claimant had unreasonably failed to adopt advice, given in the light of previous failures to attend, that he submit supporting evidence from his GP about his problems in attending, and that he had requested a home visit instead.

Judge Church allowed the claimant’s further appeal and substituted a decision that the claimant did have good cause for not attending the medical. This is that on the day he had an unpredictable seizure and was not able to attend. The decision maker and tribunal had applied the wrong test of good cause in effectively requiring the claimant to have submitted further medical evidence and requested a home visit. Specifically, on the facts the tribunal’s decision that the claimant did not act reasonably and that therefore his state of health of the day of the assessment did not amount to good cause fell outside the range of reasonable decisions open to it on the facts (paragraph 37).

The ‘good cause’ provision was provided at regulation 23 of the Employment and Support Allowance (2008) Regulations, No.794. When granting permission to appeal, Judge Church said that it was arguable that to apply a standard for ‘good cause’ which requires the claimant to plan substantially in advance, submit further evidence and seek a home visit was to set too high a bar for the claimant. The Secretary of State denied that, arguing that although the claimant’s state of health on the day was clearly relevant, regulation 24 provided that it was possible to take other matters into account, and that allowing a claimant always to rely on his state of health on the day could mean he could always fail to attend future examinations without forfeit. The judge disagreed with that. Regulation 24 clearly required the claimant’s state of health ‘at the relevant time’ to be taken into account. Although other factors could also be relevant, on the facts of this case requiring the claimant to have acted in advance was ‘unreasonably harsh’. It is open to the Secretary of State to offer a home visit. Regarding future appointments, neither the decision maker nor the tribunal was obliged to accept what a claimant says at face value; but ‘if a claimant is genuinely too unwell to attend a whole series of appointments for medical examinations that would tend to suggest that the claimant is someone who would be likely to qualify for employment and support allowance and shouldn’t, therefore, be denied the opportunity to be assessed for it’ (paragraphs 31–32).

Comment from CPAG

The decision is a corrective to notions that claimants can generally be expected to initiate arrangements such as home visits and plan ahead to the extent that illness on the day is somehow unimportant.

Summary

The claimant was working under the ‘permitted work’ rules. She was working irregular hours under a zero-hour contract. Her entitlement was superseded (and overpayment decisions issued) on the basis that, after averaging her earnings over approximate six-month periods, she had exceeded the relevant earnings limit in the permitted work rules. The First-tier Tribunal dismissed her appeal, holding that there was no weekly pattern of earnings, and that it could not identify a ‘different/fairer’ pattern.

Judge Wikeley set aside the decision and remade the substantive supersession decision, so that the claimant’s entitlement was to be calculated using averaging over a period of five weeks (rather than six months). The tribunal had erred in deciding it could not identify a different or fairer pattern (paragraph 24).

As the claimant was working variable hours under a zero-hour contract, her income plainly fluctuated. That meant that regulation 94 of the Employment and Support Allowance Regulations 2008, No.794 was engaged (via regulation 88 on calculation of income from ‘exempt’ work). Under regulation 94(6), where the claimant’s income has changed more than once, or the ‘regular pattern of work is such that the claimant does not work every week’, averaging should be carried out. That is over a recognisable cycle of work where there is one or (under regulation 94(6)(b)) in any other case over a period of five weeks, or whatever other period allows the income to be determined most accurately. The judge considered that the default five-week rolling average was the appropriate one to use (paragraph 25).

Summary

The claimant’s late husband was born in Pakistan and married his first wife there in 1976. He then moved to the UK, and was joined a few years later by his first wife. He became a British citizen. In 2001, he pronounced a talaq with the intention of divorcing his wife and the couple separated. In 2008, he married the claimant in Pakistan, and shortly after that obtained a decree absolute of divorce (ie, under English law) from his first wife. In 2011, the first wife died. In 2012, the claimant had a child with her husband, but her husband died in 2016 – by which time the claimant had been married to him under Islamic law for eight years and had been his only living spouse for five years. It was eventually decided that she was not entitled to bereavement benefits, on the basis that her marriage was polygamous and – as the husband was domiciled in England at the time of the marriage – not a lawful marriage under English law. That was upheld by the First-tier Tribunal.

Judge Wikeley allowed the claimant’s further appeal and substituted a decision that the claimant was entitled to the relevant bereavement benefits (which at the time of claim were bereavement payment and widowed parent’s allowance). The refusal of bereavement payment was in breach of the claimant’s human rights under Article 14 of the European Convention on Human Rights (‘the Convention’) read in conjunction with Article 1 of Protocol 1. The benefit was within the ambit of Article 14, the claimant was in an analogous situation to a ‘lawful’ widow (ie, one where the marriage is recognised under the law of England and Wales) and the discrimination against the claimant was not justified. The same was true for widowed parent’s allowance, although in any case the claimant was also entitled to that benefit (ie, including as an unmarried widow) by virtue of the decision in McClaughlin, Re Judicial Review (Northern Ireland) [2018] UKSC 48. The judge held that the relevant secondary legislation (the Social Security and Family Allowances (polygamous Marriages) Regulations 1975, No.561, which allows for lawful polygamous marriages that are ‘in fact monogamous’ to be treated as if they were monogamous), should be read down so as to be compliant with the Convention (paragraph 10).

It was conceded that, although the claimant’s 2008 polygamous marriage in Pakistan was valid under local law, it was void for the purposes of the law of England and Wales (section 11(d) of the Matrimonial Causes Act 1973) (paragraph 37). The Secretary of State submitted this meant that the claimant was simply not a ‘spouse’ of her late husband, including under the 1975 regulations, as the polygamous marriage was void under English law. But the judge considered that the claimant was in a position analogous with that of a ‘lawful’ widow (as the sole surviving widow of an overseas religious marriage, validly contracted under local law) and that the difference in treatment compared to that of a ‘lawful’ widow was not justified. He rejected the Secretary of State’s justification arguments, which included public policy concerning polygamy and the need for ‘bright lines’ in the rules. The judge considered that most people would take account of the fact that the late husband had never lived with both wives at the same time and had divorced his first wife, and that section 11 of the Matrimonial Causes Act in fact did provide that some polygamous marriages would not be void – ie, where neither party was domiciled in England and Wales at the time of the marriage. Overall, the discrimination against the claimant was not justified (paragraphs 72–86). Applying regulation 2 of the 1975 regulations so as to be compliant with the Convention (ie, to regard the claimant’s polygamous marriage as lawful), the ‘in fact’ monogamous marriage allowed the benefit claim to succeed.

Comment from CPAG

The individual facts in this case – which included that the claimant was the sole surviving partner, had been lawfully married in Pakistan and that the marriage had been ‘in fact monogamous’ – are important. The judge indicated that its reasoning might be capable of application to the new bereavement support payment, although no argument was heard about that (paragraph 21).

Summary

The claimant had chronic anxiety and depression, and only felt genuinely safe when at home or in his car. He feared strangers and needed to know, before setting out, who he would meet at the end of the journey. On appeal, the First-tier Tribunal scored him 10 points under mobility Activity 2 (moving around), but no points under mobility Activity 1 (planning and following journeys). The tribunal considered that the claimant was able to undertake journeys, both familiar and unfamiliar, by driving, even though he would not be able to do so by walking.

Judge Hemingway allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in failing to enquire sufficiently into the claimant’s ability to follow the route of unfamiliar journeys in his car (paragraphs 9–10). There was sufficient evidence of his ability to follow the route of familiar journeys. But the tribunal had not enquired into his ability to follow the route of unfamiliar journeys, something that was relevant to the possibility of a further 10 points under descriptor 1(d).

The judge also considered whether the tribunal was right in proceeding on the basis that the route of a journey could be followed from start to end in a car. On the facts, the tribunal had also failed to make sufficient findings about this. As a matter of common sense, there would always be a part of a journey using a car which would have to be accomplished by other means – ie, to get to the car and then to leave it to get to the ultimate destination. The facts of the client’s case indicated the part of the journey from leaving his car to get to his ultimate destination could be problematic for him, and the tribunal had failed to address that (paragraph 12). But the judge rejected an argument that if the claimant could not use public transport for the journey, then he should be regarded as unable to follow the route of the journey. Although that was suggested in previous versions of the PIP Assessment Guide, that was merely guidance and not binding law, and the judge did not agree with it (paragraph 13).

Comment from CPAG

The judge does not refer in this decision to JC v SSWP (PIP) [2019] UKUT 181 (AAC), which also dealt with, in broadly similar terms, the issue of ability to follow a route using a car. It is worth noting that the judge in that case did consider the claimant’s ability to use public transport as a relevant factor