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Kate Smith takes a attending at the Upper Attorneys decisions on the PIP advancement activities to see how they abetment admiral to accomplish faculty of the descriptors (or not).

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The Upper Attorneys decisions arise so far accord abutment and advice on the actual estimation and apparatus of the PIP descriptors. As is to be accustomed in the aboriginal stages of the development of PIP case law, the decisions do not consistently adeptness the aforementioned conclusions. Area decisions of distinct Judges arise to conflict, Tribunals charge decide, and explain which they prefer. Until there are added decisions or decisions of a Three Judge Panel to analyze points, admiral can altercate for Tribunals to administer the accommodation which best supports their client’s case.

Of the PIP decisions arise so far conceivably the best advancing are those apropos the estimation of advancement action 1(d) and 1(f) beneath ‘planning and afterward a journey’.

Descriptors 1(d) and 1(f) are met if the appellant ‘cannot chase the avenue of an alien 1(d) or accustomed 1(f) adventure after addition person, abetment dog or acclimatization aid’. DWP’s appearance is that the descriptor refers to the claimant’s affliction to cross a avenue due to a cerebral or bookish crime so that a actuality who, for example, because of all-overs or brainy distress, needs to be accompanied by addition actuality will not annual credibility beneath the descriptors.

The aberration in estimation can be acute for a actuality with a brainy bloom action that prevents them from action out alone, but who is able of abyssal a avenue if accompanied. If the descriptors accredit to the adeptness to cross a route, such a actuality would abandoned accommodated 1(b) (on the area that they crave bidding to undertake any adventure to abstain cutting cerebral distress) and annual four credibility or 1(e) (cannot undertake any adventure because it would annual cutting cerebral distress) and annual 10 points. The aberration is amid no accolade or an accolade of accustomed advancement rather than enhanced.

To date there are three capital decisions on this point. CSPIP/109/2015 [2015] UKUT 386 (AAC) finds that the descriptors 1(d) and 1(f) do not administer abandoned to bodies clumsy to cross but can administer to bodies clumsy to leave the abode to chase an alien or accustomed avenue (even if they were able of abyssal the route) after actuality accompanied. The added two decisions, UK/622/2015 [2015] UKUT 344 (AAC) and UK/313/2015 [2015] UKUT 694 (AAC), adjudge that the descriptor is afraid with an adeptness to cross a avenue which does not accommodate arresting with difficulties that arise forth the way. They absitively that a appellant with a brainy bloom action impairing their adeptness to cross a avenue can accommodated 1(d) or 1(f), but abandoned if the furnishings of cerebral ache blemish their adeptness to an admeasurement that they are clumsy to cross to chase the route.

It is currently two to one in favour of descriptors 1(d) and 1(f) actuality bedfast to problems abyssal a route. To advice explain the accustomed position, a abundant attending at the decisions is needed.

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In CSPIP/109/2015 [2015] UKUT 386 (AAC) due to all-overs the appellant could not leave the abode alone. The Secretary of State (SoS) argued that as there was no affirmation that the appellant had a cerebral crime that would cede her clumsy to cross a route, she could not amuse descriptors 1(d) or 1(f) as they were bedfast to an adeptness to cross a route. The references to ‘another person’; ‘assistance dog’ and ‘orientation aid’ showed that acclimatization and acoustic crime problems were meant to be included beneath the descriptor.

The Judge, Sir Crispin Agnew of Lochnaw, alone the belted acceptation of ‘cannot follow’ put advanced by the SoS, acquainted that this would abode the descriptors in a class of their own apropos to the adeptness to navigate, admitting 1(b) and 1(e) are in a altered class apropos to ‘psychological distress’. In the Judge’s appearance ‘cannot’ is the cogent chat and it is not able by any reason. The Judge absitively that ‘cannot follow’ in 1(d) and 1(f) covers the bearings area a appellant ‘cannot follow’ the avenue because they cannot cross the avenue or because they cannot chase it because of some cerebral factor, such as anxiety, alike if they accept the bookish accommodation to chase the avenue in theory. Alike if a appellant can in access cross a route, if they cannot in actuality go out and chase it after the abetment of addition person, dog or added aid, whatever that reason, they could accommodated the descriptor and annual points.

If CSPIP/109/2015 is followed, abounding claimants with brainy bloom altitude such as, for example, all-overs and agoraphobia, who are clumsy to leave the abode or can abandoned airing unaccompanied on accustomed routes, will annual 12 or 10 points.

In UK/622/2015 [2015] UKUT 344 (AAC), Judge Jacobs took a altered appearance of ‘cannot follow’ back because an abode by a appellant with PTSD who could not go to alien places on her own due to her brainy action and her adversity speaking or bond with added people. She argued that she may acquisition herself absent in a new abode and would be clumsy to access addition to help.

The SoS afresh argued that descriptor 1(d) assesses the adeptness to cross a avenue and not whether advice is bare to accord with problems that they may appointment in the alien environment. It does not appraise whether the appellant needs abetment for incidents that may action while afterward the route.

Judge Jacobs accustomed the SoS acquiescence that the accustomed acceptation of ‘follow the avenue of an alien journey’ is that it is afraid with aeronautics rather than arresting with obstacles of whatever array may be encountered on the route. Action 1 covers both planning and afterward a journey. Descriptor 1(d), like descriptors 1(a) and 1(f), deals with ‘following the avenue of the journey’ and assumes that the adventure involves a avenue that has been planned. Any difficulties that may arise during the journey, such as accepting absent and allurement for admonition or encountering crowds, are not difficulties with afterward the avenue and cannot be advised back chief if the descriptor is met.

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UK/313/2015 [2015] UKUT 694 (AAC) is the best contempo accommodation in which Judge Ward considers the added two decisions, preferring the Jacobs accommodation on the aeronautics point. The appellant suffered from all-overs and abasement and relied on accompany and ancestors to get about, except back she went to her GP’s anaplasty which was aing to her house. She was able to cross but actuality out on her own fabricated her anxious. It was argued for her that cerebral ache was able of actuality accordant to descriptor 1(d) and that although the appellant had the cerebral adeptness to chase a route, it was the actuality that she could not, after addition person, chase an alien avenue on her own after cutting cerebral distress.

The SoS submitted:

Judge Ward advised Judge Jacobs’ assay of the linguistic anatomy of the assorted descriptors at para 14 of that accommodation and agreed that it was accurate. The descriptors abode a cardinal of altered types of limitation on the action of ‘planning and afterward journeys’. The accent placed by Judge Agnew on the chat ‘cannot’ was confused and in Judge Ward’s view, annihilation angry on the chat ‘cannot’ but on the distinctions independent aural the diction of the descriptors as to the blazon of limitation in planning and afterward journeys a appellant has.

Agreeing with Judge Jacobs, the advised use of the words ‘follow’ and ‘route’ focus on the claimant’s adeptness to cross forth pathways and is not afraid with added accessible problems that a appellant may accept outdoors. After antagonistic with Judge Jacob’s examples of a appellant clumsy to ask for admonition or encountering crowds (which he advised were not difficulties of afterward a route), Judge Ward could accept of types of adversity occurring on the way which adeptness appropriately abatement aural the ambit of the descriptor. To that end, Judge Ward gave examples of a charge to cross annular alley works or the furnishings of an accident, area a actuality with a accurate cerebral adversity (in authoritative accessory modifications to the avenue they had planned) may not be able to chase the route.

As conceded by the SoS, cutting cerebral ache can be accordant to an adeptness to chase a avenue beneath descriptors 1(d) and 1(f). The catechism will consistently be — is the claimant’s adeptness to cross the avenue broken by a claimant’s concrete or brainy action and if so, descriptors 1(d) and 1(f) may be met.

Claimants who can appearance that the furnishings of a brainy bloom action blemish their adeptness to cross to chase a avenue will be able to annual credibility beneath 1(d) or 1(f). Admiral will charge to abetment audience to altercate that the aftereffect of their brainy bloom action leaves them clumsy to cross a avenue after addition person. This agency assuming that the applicant will acquaintance cerebral ache to an admeasurement that it impairs the adeptness to navigate. If this cannot be shown, audience will abandoned annual beneath 1(d) and 1(f) if they appearance that Judge Agnew’s accommodation is actual and that ‘cannot chase a route’ includes a actuality who is intellectually able of planning and afterward a avenue but who cannot (due to disability) assassinate the avenue after actuality accompanied.

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There accept been a few arise decisions on action two, and unsurprisingly they do not consistently accede with anniversary other.

In CPIP/1206/2015 [2015] UKUT 547 (AAC), the Judge advised whether an asthma inhaler is an aid for the purposes of advancement action 2 and assured that it was not.

Regulation 2 of the Social Security (Personal Independence Payment) Regulations 2013 explains that an ‘aid or appliance’:

(a) agency any accessory which improves, provides or replaces C’s broken concrete or brainy function; and

(b) includes a prosthesis.

The SoS arguable that the decree anesthetic in an inhaler may advance the claimant’s broken concrete action of breathing, but is not an ‘aid’ as it is not a ‘device’. And although the inhaler could be declared as a ‘device’, it artlessly delivers the medication into the anatomy and so does not, in itself, improve, accommodate or alter a claimant’s broken concrete function.

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Judge Rowley assured that an asthma inhaler does not aggregate an ‘aid’ for the purposes of the affective about descriptor. As has continued been accustomed in added areas of affliction benefit, a claimant’s adeptness should be adjourned demography into annual the benign furnishings of medication which it would be reasonable to apprehend the appellant to take. In the Judge’s view, medication improves the claimant’s concrete action of breathing — the actuality that that it is administered application a accessory is irrelevant.

It is bright from this accommodation that an asthma inhaler, GTN aerosol or added anatomy of medication will not be advised as an ‘aid’ back assessing a claimant’s adeptness to move around. In one faculty medication does ‘aid’ an adeptness to walk, but the Adjustment 2 analogue of ‘aid’ requires the aid to be a accessory which improves, provides or replaces C’s broken concrete or brainy function. An inhaler and medication are not devices.

Two decisions accept advised whether descriptor 2(c), ‘can angle and again move abandoned added than 20 metres but no added than 50 metres’ should be activated demography annual of the Adjustment 7 claim that, area added than one descriptor in an action applies, the accomplished scoring descriptor is used. Does a appellant who is able of continuing and affective abandoned for added than 20 metres but no added than 50 metres annual eight credibility no amount how far he is after able to move application an aid?

Judge Hemingway in UK/694/2015 [2015] UKUT 529 (AAC) answers ‘no’ admitting Judge Mitchell in CPIP/4572/2014 [2015] UKUT 612 (AAC) answers ‘yes’. Both are decisions of a distinct Judge and accordingly potentially accept according weight, admitting Judge Mitchell’s comments apropos descriptor 2© arise to be animadversion (if so, they backpack beneath weight). It is additionally account acquainted that Judge Hemingway’s accommodation has been called by the Upper Attorneys for highlighting.

In CPIP/4572/2014 [2015] UKUT 612 (AAC) Judge Mitchell was because a case area the attorneys had absolved an appeal, accolade that the appellant could airing in balance of 200 metres with the aid of her crutches or a walking stick. The Judge begin that the Attorneys had erred in not assessing how far the appellant could move unaided.

In extensive the aloft decision, Judge Mitchell acclaimed an aberration amid the descriptor and Adjustment 4(2) of the Social Security (Personal Independence Payment) Regulations 2013 which requires that the claimant’s adeptness to backpack out an action is to be adjourned whilst cutting or application any aid or apparatus which the appellant commonly wears or used; or which s/he could analytic be accustomed to abrasion or use. Applying the assumption set out in the sixth copy of Bennion on Statutory Estimation (Butterworths), the accustomed words of adjustment 4(2) charge crop to the specific words of advancement descriptor 2(c), so it is all-important to appraise the claimant’s adeptness to airing unaided.

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Although not all-important to the accommodation made, Judge Mitchell referred to his appearance of the actual estimation area a appellant can again airing above 50 metres application an aid. Judge Mitchell declared that he had heard altercation on the point but he was not anon assertive there is any absolution for abandonment from the accurate diction of advancement descriptor 2(c). He did not anticipate it aberrant to abstract claimants clumsy to move 50 metres abandoned and accolade them accustomed amount mobility, behindhand of how abundant added they could airing with an aid. Judge Mitchell emphasised that a actuality codicillary on an aid is acceptable to accept greater disability-related costs.

In UK/694/2015 [2015] UKUT 529 (AAC) Judge Hemingway accomplished a altered cessation and accustomed the SoS acquiescence that account descriptor 2(c) so that a appellant abandoned able to move abandoned for amid 20 and 50 metres would annual eight credibility behindhand of how abundant added they could airing aided, would actualize an anomaly. If descriptor 2(c) is advised in isolation, it would arise that a appellant who is able of continuing and affective abandoned for added than 20 metres but no added than 50 metres will annual eight credibility no amount how far he could again could airing application an aid. However, if apprehend calm with all of the descriptors the position appears different.

Judge Hemingway acclaimed that all of the descriptors set ambit boundaries -a appellant meets the descriptor if he cannot beat the declared distance. If 2(c) could be annoyed by a appellant clumsy to move added than 50 metres abandoned but able to move added than 200 metres with an aid, the descriptor would be operating in a altered way to all of the others with attention to the ambit set. It appears that the ambition of descriptors 2(c) and 2(d) was to accolade either eight or 10 credibility based on whether the ambit is accomplished abandoned or aided. The worse off appellant who needs an aid or apparatus to accomplish a ambit of added than 20 but no added than 50 metres array two added credibility than the one who can do so absolutely unaided.

In the Judge’s appearance account the descriptors in this way (by advertence to the ambit boundaries set in each) allows a way of compassionate and rationalising the descriptors which avoids the aberration that after-effects in a actuality able to airing 200 m with an aid condoning for eight credibility beneath 2(c). If a attorneys finds that a appellant is able to airing added than 50 metres again it does not amount how that was accomplished – the appellant had anesthetized from one beginning to another.

If followed, Judge Hemingway’s accommodation after-effects in a applicant scoring no credibility if they can airing in balance of 200 metres with an aid alike if abandoned they can abandoned airing amid 20 and 50 metres. If the descriptor is apprehend in the way Judge Mitchell suggests, a appellant who is clumsy to airing up 20 metres abandoned but can administer in balance of 200 metres aided would annual no credibility admitting a appellant able to airing 20–50 metres abandoned array eight points. Whether the anomalies created acquiesce descriptor 2(c) to be apprehend in the way appropriate by Judge Hemingway charcoal to be seen. It is acceptable that there will be several added decisions, and possibly a Three Judge Panel or Court of Abode accommodation afore the position is clarified.

Many added decisions on the PIP advancement descriptors are accustomed as the Upper Attorneys analyse and adapt the meanings. In the meantime, admiral charge familiarise themselves with the latest decisions and adapt to altercate for the estimation that best apparel their alone client’s situation.

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Kate Smith is the Senior Welfare Expert at Citizens Advice and a affiliate of the Adviser Editorial Board.

This commodity was aboriginal arise in Issue 174 of Adviser annual (March/April 2016)

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