Planes and boats and trains and PIP mobility

The problem

In many cases, First-tier Tribunals are deciding that claimants should not score points under descriptors 1d and 1f of mobility Activity one if the claimant can reliably drive a car. Decision makers are making similar arguments when making decisions and undertaking mandatory reconsiderations. Recent cases have looked at this issue, as well as the wider issue of how a claimant’s ability to use public transport should be considered.

The basic rule

The caselaw looks at descriptors 1d and 1f of Activity one: planning and following journeys, the relevant descriptor depending on whether or not the claimant can follow the route of a familiar journey as well as an unfamiliar one. The regulations state that points are scored if the claimant ‘cannot follow the route of an unfamiliar/familiar journey without another person, assistance dog or orientation aid’.1 A claimant should only be considered able to undertake an activity if s/he can do so reliably.2

The caselaw

In the first of three recent cases, JC v SSWP3), Judge Wikeley found that the First-tier Tribunal had erred by relying solely on its finding that the claimant was able to drive when determining her ability to follow the route of a journey. The judge also held that, when looking at descriptors 1d and 1f, there should be an ‘overall and holistic’ assessment.

Then in JB v SSWP4 Judge Hemingway agreed when he found that: ‘as a matter of common sense, even where the bulk of a journey may be accomplished by driving, there must be at least relatively small parts of, I suppose, virtually every journey, which will be have to be accomplished by some other means’ and therefore: ‘it is not sufficient to simply say […] that a claimant is able to follow the route of a journey merely because he is able to follow the bulk of it in his motor car.’

Judge Hemingway returned to the issue in a similar case, SB v SSWP5 where he confirmed what had been found in JC and JB regarding driving. He also followed what Judge Wikeley had said about the test that should be applied when looking at the descriptors and summarised the current position in law when he held that: ‘what is required is an overall and holistic assessment encompassing a claimant’s ability to follow the route of a journey through various ways, including driving, travelling on foot and utilising public transport, with neither, of themselves, being determinative.’

Advisers should be aware that each case will turn upon its individual facts. Therefore, at all parts of the PIP assessment process, from completing the PIP2 to challenging a decision, claimants should provide a full account of the difficulties they have with all forms of transport when ‘making one’s way along a [familiar/ unfamiliar] route safely’.6

The official guidance on public transport

The DWP’s PIP assessment guide states that: ‘A person should only be considered able to follow an unfamiliar journey if they would be capable of using public transport – the assessment of which should focus on ability rather than choice.’

While it may be a legitimate tactic to refer decision makers to the guidance during the assessment process, to ensure they place sufficient importance on an individual’s difficulties in using public transport, it has been well established in caselaw7) that the guidance is not the law so cannot be relied upon when challenging decisions. Advisers should also be aware that in JB the judge rejected as grounds for appeal the fact that the claimant was necessarily unable to follow the route of the journey just because his health conditions precluded him from using public transport.

Conclusion

If a decision maker, or a First-tier Tribunal, that finds that, solely on the grounds that a claimant can reliably follow the route of a journey unaccompanied by driving a car, the claimant will not score any points under 1d or 1f, then it will have erred in law. It must take into account that ‘there might be parts of a journey (I have in mind the starting point and the end point) which will necessarily have to be undertaken by foot'8 and therefore it must consider whether these parts of the journey can be followed reliably.

The legal test is that an assessment should consider the claimant’s overall ability to reliably use various forms of transport, without another person, assistance dog or orientation aid, when following the route of either a familiar or unfamiliar journey. So the decision maker, or First-tier Tribunal, should consider the claimant’s ability to follow the complete route of a journey and look at her/his ability to reliably travel on foot, by public transport and, where appropriate, drive a car.