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Ability to walk 20m repeatedly

MatildaMatilda Posts: 2,616Member Disability Gamechanger
Can someone qualify for enhanced rate PIP if they are able to walk up to 20m but then need to stop and rest for a minute or so, then walk up to another 20m but then need to stop again and rest for a minute or so....and so on?

Is there a limit to the number of times that someone can repeat this pattern of walking up to 20m then stopping for a minute or so, etc and qualify for enhanced rate PIP?

Replies

  • MarkmywordsMarkmywords Posts: 398Member Pioneering
    Well it's irrelevant what the DWP says as they will say whatever serves them.

    If you have no choice but to stop before 20m on most occasions then I would expect a Tribunal would say that "Can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided" applies.
    It would not be just to add 20m micro-journeys together.

    There are no guarantees though.
  • mikehughescqmikehughescq Posts: 3,494Member - under moderation Disability Gamechanger
    If you can do something but can't do it more than 50% of the time or can't do it reliably, repeatedly, safely or in a reasonable time... then you can't do it. Have a look at PIP regs 4 and 7.
  • MatildaMatilda Posts: 2,616Member Disability Gamechanger
    I was awarded PIP enhanced mobility at a tribunal in May 2017.  I have asked this question because I would like to ask BenefitsTrainingCo what the legislation has to say.
  • mikehughescqmikehughescq Posts: 3,494Member - under moderation Disability Gamechanger
  • MarkmywordsMarkmywords Posts: 398Member Pioneering
    I've yet to see anyone actually link to the statute on the Scope community so I'll do so. ;)

    @Matilda , what you are interested in is here.

    PIP is controlled by;
    The Social Security (Personal Independence Payment) Regulations 2013 and

    The Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013

    Be aware that a regulation (controlled by a Statutory Instrument) is a world away from Primary Legislation.
  • MatildaMatilda Posts: 2,616Member Disability Gamechanger
    @Markmywords

    The gov.uk PIP Handbook states that if a claimant cannot complete walking 20m safely, repeatedly and in a reasonable time then they should be permitted to walk beyond 20m and still be eligible for enhanced rate mobility PIP (though it says nothing about how much farther).

    Therefore, logic dictates that if a claimant can walk 20m safely, repeatedly [my emphasis] and in a reasonable time (but no further without a rest first) then they are eligible for enhanced rate mobility PIP.

    But I shall be interested in what BenefitsTrainingCo has to say on the subject.
  • MarkmywordsMarkmywords Posts: 398Member Pioneering
    I agree with your understanding of it @Matilda. A claimant has the whole 20 metres. If they have to stop before getting to 20.1 metres then the descriptor still applies. If they start walking again after resting for several minutes then the descriptor still applies.

    They cannot add micro-journeys together. That is wrong in law.
  • mikehughescqmikehughescq Posts: 3,494Member - under moderation Disability Gamechanger

    I tend to not post links to the legislation itself for two reasons:

    1) Readily available on t'internet but also prone to misinterpretation by lay people.

    2) The law is the starting point. How it applies in practice is determined by the law, case law and elements of the guidance. Hansard can also assist in specific limited circumstances when looking at original intent.

    The PIP handbook in this instance is not a reliable guide to interpretation as it's been usurped many times over already by case law. It's also problematic because a number of its interpretations are simply disconnected from what the law itself says and reflect what politicians and the DWP want it to mean. When challenged it falls to pieces.

    A  good example of this is the recent decision on the interpretation of "safety" in the context of daily living. The conclusion of the UT was that DWP guidance was wholly wrong and disconnected to what the law said and any reasonable interpretation of that. Thus, the case law on safety has now effectively reverted to the interpretation used by DLA.

    Another good example is that the PIP handbook says PIP mobility activity 2 should be "... judged in relation to a type of surface normally expected out of doors such as pavements and includes the consideration of kerbs".

    Now, go look at the law and see where it says anything about mobility relating exclusively to mobility out of doors. The answer is that it doesn't. DWP have literally just made up an interpretation that suits.

    So, guidance can be helpful but case law is key.

    @Matilda's interpretation is close but not quite there. What the guidance says is simply that if you can do more than 20m you only qualify if that extra distance beyond 20m cannot be done "safely and reliably". This is misleading as "reliably" in the context of PIP means safely, repeatedly, to a reasonable standard and in a reasonable time.

    So, if a person does 20m and then a further 20m they are at risk of being found to be able to do it repeatedly and the only things which mitigate against such a finding would be if the distance was not done in a reasonable time; couldn't be done every time after the 1st 20m or there was good evidence of increased risk after the 1st 20m.

    So, the descriptor could still apply but 2e is by no means automatic. It's more accurate to say it "could apply".

  • MarkmywordsMarkmywords Posts: 398Member Pioneering
    You missed the part where Matilda wrote "but no further without a rest first." I see no room for doubt there.

    Tribunals cannot create case law either; precedent yes, case law no.

    This is why legal advice in forums is dangerous. I stick with the raw facts. To which I'll agree or keep schtum.
  • mikehughescqmikehughescq Posts: 3,494Member - under moderation Disability Gamechanger

    No, I didn't miss it. That bit is correct so there was no need to comment.

    First tier tribunals cannot create case law. Upper Tribunal is where case law is created. Nothing in my post suggested otherwise.

    If by "raw facts" you are referring to the law then that's the potentially dangerous territory in the sense that it can lead people to believe something is absolute. However, the law is simply a starting point.

  • MatildaMatilda Posts: 2,616Member Disability Gamechanger
    I am interested in what happens in practice.  Are some assessors and some tribunals making different interpretations, i.e. are some saying repeated walking 20m (or 50m), with rests in between, = qualification for PIP mobility?  And others saying no?  Does it depend on the length of the rests in between?


  • mikehughescqmikehughescq Posts: 3,494Member - under moderation Disability Gamechanger

    Not really. Interpretation is fairly consistent although not perfect.  

    It comes down to how you make progress i.e. if you can do >20m but not reliably, repeatedly, safely or in a reasonable time or not >50% of the time then you ought to qualify under the 1 to 20m route. If you can do >50m but not... etc. then you should qualify under the 20 to 50m route and so on or even 1 to 20m depending on the detail.

    Also worth remembering that walking is not about walking out of doors exclusively even though DWP guidance thinks it is.


  • MatildaMatilda Posts: 2,616Member Disability Gamechanger
    You have posted a couple of times that you have known people refused PIP mobility because they could walk 50m repeatedly.
  • mikehughescqmikehughescq Posts: 3,494Member - under moderation Disability Gamechanger

    Yes. If you can walk 50m repeatedly and do so reliably, repeatedly, safely in a reasonable time then you can walk at least 100m and would only score 4 points under 2b.

    If you can walk 50m repeatedly but not, for example, in a reasonable time (which is defined as more than twice as long as a healthy person) then you could qualify via 2c onwards.

    The test is not exclusively one of distance it's one of reliability etc.

  • MatildaMatilda Posts: 2,616Member Disability Gamechanger
    Surely the amount of time that someone has to rest between repeated walking is a factor.  Whether, for example, it's a just few seconds or 10 minutes.
  • mikehughescqmikehughescq Posts: 3,494Member - under moderation Disability Gamechanger
    Yes. That's what I've just said in the middle paragraph of my previous post.
  • MatildaMatilda Posts: 2,616Member Disability Gamechanger
    So you say that walking times and rest times should be added together to form a total.
  • mikehughescqmikehughescq Posts: 3,494Member - under moderation Disability Gamechanger

    Yes. If you can walk then it depends on how far; how often (repeatedly); how quickly and how safely. If the time taken for whatever distance you specify is more than twice the time it would ordinarily take a healthy person then the appropriate descriptor would apply.

    Extreme example but... If you could walk 500m without stopping but you couldn't do it repeatedly or it took you 20 minutes to do then you potentially qualify for a descriptor as you could argue that you couldn't do 1 to 20 or 20 to 50 etc. in a reasonable time.

    Obviously that isn't going to apply to many people as most walking that slow would presumably be stopping or at risk of falls but you get the gist.

  • MatildaMatilda Posts: 2,616Member Disability Gamechanger
    A tribunal awarded me enhanced mobility because I cannot walk farther than 20m before I have to stop and rest.
  • MatildaMatilda Posts: 2,616Member Disability Gamechanger
    The tribunal doc asked for how long can I walk.  I made sure my answer related 'for how long' to 'how far'.
  • MatildaMatilda Posts: 2,616Member Disability Gamechanger
    This is a very crucial issue.
  • BenefitsTrainingCoBenefitsTrainingCo Posts: 2,679Member Pioneering
    Matilda,
    I'm not sure I can add much to the comments above. First of all, yes the law is the Welfare Reform Act 2012 and the PIP regulations 2013. In there we also find the principles of safely, to a reasonable standard, repeatedly and no more than twice as long as someone without the condition. However, we don't find the answer to your question, as neither act nor regulations doesn't go into that sort of detail.

    The DRH is a good tool but it does get out of date as case law in PIP is so frequent now - made as discussed above by Upper Tier tribunals. An updater is issued a few times a year, but simply can't keep up with the case law.

    A minute is not a very long period of time in some contexts, but it could be a long time in the context of walking (much longer than simply pausing to catch a breath); in addition stopping so often would of course affect the time taken to cover any final overall distance, and could also affect the 'reasonable standard' issue.  I think a good tribunal would want to know more about what is going on. Is the claimant in pain or breathless? What is the reason for having to stop?

    I think there is a huge difference between what an assessor would find (which sadly I wouldn't expect to be consistent at all) and what a tribunal might find.

    For example in [2016] UKUT 326 (AAC) pain and breathlessness meant that someone might not be completing moving around to a reasonable standard, even though it was both repeated, and within a reasonable time. So I do not think there is one answer to your question - I think it would depend on the overall condition, effects and how the person is feeling as they move.

    I'd recommend having a look at the case law on moving around on the pipinfo site. There are some useful principles there. For example, even if someone is very slow, one case says we can't consider that if they nevertheless complete the distance in a time which is less than twice that of someone without the condition.

    Both how long and how far are relevant. As is how quickly, for how long without pain etc. Perhaps 2016 UKUT 261 AAC is particularly relevant to your question. 

    'there will be times when a halt has persisted for such length that it cannot realistically be said that any resumption is part of the same period of walking'

    A minute is quite a long time to pause when you look at how 'most' people walk. So on that basis, I think we would stop at your 20 metres. 

    But I'm afraid you are quite right to observe that not all assessors, or even all tribunals, would come to the same conclusions. Which is why proper findings of fact are so important.

    Does this help? Feel free to ask more questions about the case law.

    Will
    The Benefits Training Co:
    Paul Bradley
    Michael Chambers
    Will Hadwen
    Sarah Hayle
    Maria Solomon
    David Stickland
  • MatildaMatilda Posts: 2,616Member Disability Gamechanger
    Thank you, Will.  

    Most PIP claimants would find it hard to get their heads around case law, even those with quite high-level academic qualifications.  I have no legal training but I do have a first degree and a post-graduate diploma in other disciplines - and I find it difficult to understand the myriad of 'rules' that apply to walking reliability criteria.

    I am interested in how the law is applied at assessment and tribunal.

    How can assessors judge a person's walking ability for sure unless they actually watch them walk?  Which rarely formally takes place.  My assessor decided that because I could walk 16m from waiting area to interview room then I must be able to walk 20-50m!  The DWP's own PIP Handbook states that walking ability should be judged outdoors using pavements and kerbs.

    Tribunals are not allowed to formally watch appellants walk.  At my tribunal both the doc and the judge asked a lot of questions about my walking and decided that I couldn't walk beyond 20m before I needed to stop and rest.  
  • mikehughescqmikehughescq Posts: 3,494Member - under moderation Disability Gamechanger

    Whilst tribunals no longer conduct formal mobility tests as they did in the days of Medical Appeal Tribunals for Mobility Allowance they will weigh all the evidence put before them. That will include you walking in and out of the hearing room.

    The PIP handbook is incorrect when it says walking should be judged out of doors. There is nothing in the legislation which says that at all.

  • MatildaMatilda Posts: 2,616Member Disability Gamechanger
    I read the Disability Rights Handbook before my tribunal hearing which stated that tribunals are not allowed formally to measure an appellant's walking but of course they will observe the appellant walking in and out of the hearing room.

    If the PIP Handbook is wrong about walking assessment, shouldn't you tell them?
  • mikehughescqmikehughescq Posts: 3,494Member - under moderation Disability Gamechanger
    If I spent my time telling DWP where their guidance differs from how the law is written it would be a full time job in and of itself. Therefore it’s a point I make solely in MRs or appeal submissions. 
  • Pat1960Pat1960 Posts: 8Member Listener
    I can't walk 20 meters with out having to stop on a number of times due to COPD and Cervical and lumbar spondulosis. I also have Dystonia in my spine and neck and shoulders and in both rib cages. I struggle and walk very slowly. I was on high rate mobility and middle disability before the swap over for PIP. My assesser lied in her report that she seen me walk 50 meters when I was on my bed the entire assessment. She told other lies in her report to. I was awarded no mobility and on mandatory appeal I was awarded standard rate. I then had to wait 8 months for tribunal we're I was humiliated by the doctor and mobility specialist. They had me crying.  They seem how badly I walked and for how long for etc. They still went off the assessers report on the 50 meters and I lost my tribunal. I've now got to put a fresh claim with new evidence etc to hopefully get the enhanced rate that I am entitled to. It's humiliating what they do to you they treat you like a criminal. It's all so very very wrong.
  • MatildaMatilda Posts: 2,616Member Disability Gamechanger
    @Pat1960

    Yes, going through PIP is a traumatic process.  One thing about tribunals - the panels are supposed to be inquisitorial, it's their job. So, if you ever have to go to a tribunal again, don't take their quizzing personally - just answer the questions and insist that you can't walk more than 20m (or for longer than 30 seconds) without needing to stop and rest.  At my tribunal the panel grilled me for half an hour and my head was spinning - but I did win my appeal.

    Good luck with your new claim.


  • Pat1960Pat1960 Posts: 8Member Listener
    Thank you Matilda i hope i dont get another lying assesser. Also that they look at my medical evidence properly  this time because they did not look at it properly. My Rheumatologist was disgusted with them and said there was more than enough evidence in my reports off him and my neurologist and GP about my mobility and how it affects my walking etc. Even that was not enough for DWP  or for the tribunal.  There just out to destroy people and take away there security and independence. I had my car taken off me which I rely on for all my hospital appointments.  Also getting me out of my bungalow and social reasons. They did not like the fact that I had my hair coloured they said I see you still manage to have your hair coloured . I said yes by someone who comes to me. It's sad that because your on PIP your not allowed your hair done.  Your not allowed to go to church 3 times a week for healing. It's all classed as you can get about which is so wrong. They exspect you to be stuck at home have no friends or social life at all. Im just totally disgusted at how were treated and how were grilled like we are.
  • MatildaMatilda Posts: 2,616Member Disability Gamechanger
    @Pat1960

    Yes, it's appalling how so many assessors lie in their reports.  Mine did.

    Unfortunately, at assessments and at tribunal hearings, people go very much by what they can see.  Not enough to be disabled, with medical evidence, but you have to 'look' disabled on the day.  People who look well-groomed will be assumed to have considerable physical ability.

    So, at assessments and tribunal hearings, don't dress up, wear minimal jewellery (only a watch and wedding band) and, if female, minimal make-up.  Don't get your hair cut or coloured recently.  Flat shoes and loose clothes without fastenings.

    It's a good idea to think what questions you would ask if you were an assessor or a tribunal panel member!  Be prepared.

    Don't drive yourself to assessment or hearing - take a taxi if necessary.

    Assessors and tribunals think that if you can drive then you must have a lot of physical ability and stamina!  At my tribunal I had to point out that I only make a few short journeys by car each week.

    With your new claim I recommend that you include a 7-day diary.  List all the aids you use in the diary and on your claim form.  Use of aids should get you some points especially if you struggle even using aids.

    Disability Right UK (DR) site has a good guide to PIP including a draft diary that you can adapt.  DR also publish a benefits Handbook, price £15, from their site.
  • Pat1960Pat1960 Posts: 8Member Listener
    Thank you for that when i went to my tribunal I had no make up on all my colour had faded greatly. I only had a watch on. I had loose clothing with elasticated waste on and no belts etc . I use 2 walking sticks i also use a rollator with a seat on it for when im out so i can rest. I am stooped over now with my arthritis and spinal problems. So they could clearly see how bad I was us how slow I walked and ow breathless I was when I got there plus how breathless I was through out my tribunal i had to keep stopping and having water before I could continue slowly. Even all of this they still would not give me the enhanced rate. When I next go for face to face I will not drive myself there. I will get my friend to take me. I think I'm better off using my rolls for than my walking sticks when I next go. I will go in to the sight you mentioned and have a look.
  • mikehughescqmikehughescq Posts: 3,494Member - under moderation Disability Gamechanger
    Whilst it’s absolutey true to say assessors and tribunals will to some extent judge on what they see it’s poor advice to suggest that specific things will assist especially if they are things you would not ordinarily do. Such sweeping generalisations, especially when based only only on personal experience, are dangerously close to misrepresentation and, especially in the case of tribunals risk treating three people as equally stupid rather than as part of a discussion  where the prejudices of one are often overcome by one or other member. A tribunal is never a homogenerous entity that can be treated as a single thing. 

    Whilst medical professionals are especially prone to stereotyping that’s not really a reason to stereotype yourself as looking like a disabled person and their training does include stuff around identifying things which might be used to reinforce impressions of disability. They’re not interested in whether you walk with a stick for example. Their interest will be in whether you chose to use one or it was medically prescribed. Whether you mentioned it in the claim pack pr at any face to face will also impact.

    Wear elastics clothing of that is what you normally do and so on. Get a lift if you need a lift. Drive yourself if you are capable. Any incorrect inferences drawn are easy to refute but less so only if other evidence confirms impressions on capability. That’s what people repeatedly miss. Assessors and tribunals can get facts wrong and can also draw wrong inferences but they’re also generally not stupid and quickly pick up on inconsistencies.

    I’ve yet to come across a tribunal who have ever had regard to jewellery or hair colouring and I have sat in and represented on hundreds over nearly 32 years. Welfare rights advisers generally advise people to turn up in whatever they are comfortable in as being relaxed is more relevant to giving clear, consistent and detailed evidence than any other factor.
  • Pat1960Pat1960 Posts: 8Member Listener
    I can assure you they do have regard for hair colouring and cut. This was clearly put to me (Well I still see that you manage to have your hair coloured and styled )  I am not a liar I do we're loose clothing and pants for comfort and what I am comfortable in. I did not miss represent myself I was basically grilled and basically made to feel humiliated. I gave enough evidence off all my consultants and my GP who supported me and my MP.  This still was not enough they were asking for more detailed reports on everything that is wrong with me. You can only obtain these if DWP request them themselves otherwise Consultants will only give brief reports. I have rwquested more detailed reports off all my consultants and respiratory nurse. Hopefully this time it will be enough for them and i wont be further humiliated or treated like a criminal.
  • MatildaMatilda Posts: 2,616Member Disability Gamechanger
    Tribunals do query appellants' appearance.  There was a member on here who reported that the tribunal asked her how she could walk in shoes with a slight heel and how she could put her earrings in if she was disabled.
  • mikehughescqmikehughescq Posts: 3,494Member - under moderation Disability Gamechanger
    I did not say they don’t query appearance. I said they usually do so for specific reasons related to functional disability, which is exactly what you have both subsequently described. What I said is that it is a mistake to adjust what you do for an assessor or a tribunal. A tribunal paying sufficient attention to query how someone puts their earrings in is for example not bothered about your appearance. They are looking to give you a way to explain what you can and cannot do. All of the questioning described is person based (rather than just assuming) and focused on functional impairment. 

    Whilst there can be some unpleasant individuals in all walks of life, tribunals don’t usually set out to humiliate. It tends to be more the case that many people, who are very used to their own limitations and the barriers they face, see them as self-evident when they often aren’t. They’re then hit by the double whammy of not only feeling uncomfortable because they’re asked to talk about themselves in very negative terms but also feeling got at because they’ve been asked anything at all.

    im not seeking to justify poor assessments or tribunal hearings. They’re not justifiable. I am simply pointing out that tribunals, although sometimes misguided or led astray by errant individuals, usually have very logical reasons for their line of questioning. They may seem unusual or very targeted but they are often the quickest way to get to the heart of functional ability in a time-limited environment. 
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