An upper tribunal judge has overruled a decision by a first-tier tribunal that a claimant’s ability to walk at an airport was conclusive evidence that they did not qualify for the mobility component of personal independence payment (PIP).
The claimant, who had a spinal injury, had made three trips to Egypt since January 2017. She had been able to use a wheelchair at Manchester airport but not at plane changes in Turkey or on arrival in Egypt.
In addition, the claimant had not been able to take her Tramadol to Egypt as it was illegal there.
When the claimant applied for PIP in September 2017 she did not score any points at all.
On appeal, the first tier tribunal awarded her 6 daily living points and 4 points for mobility descriptor 2b “Can stand and then move more than 50 metres but no more than 200 metres either aided or unaided.”
The claimant appealed to the upper tribunal.
The upper tribunal judge turned to a disability living allowance decision, JT v SSWP (DLA) [2013] UKUT 0221 (AAC), explaining that at one time “it was really quite common, in the context of disability living allowance, to see findings and reasoning with respect to entitlement to the mobility component of that benefit based, at least in part, upon walking which had been undertaken at airports.”
In the DLA decision, the judge held that reliance on a one-off trip abroad to decide walking abilities was “notoriously prone to difficulties.”
The judge held that: “tribunals need to be astute to examine the reasons why a walk through an airport may have been undertaken despite the pain it may have brought on (e.g. to get to a wedding or visit a sick relative – see CDLA/2108/2010), and to bear in mind that it is in most, if not all, cases walking that is not normally undertaken. This is important because if, as here, the walking at the airport is a key aspect of the evidence relied on by the tribunal, it needs to be able to explain why this one-off walking is demonstrative of the claimant’s overall walking ability.”
The judge in the current PIP case, Judge Hemingway, decided that although the walking test for PIP is different to the test for DLA, they are sufficiently similar that the tribunal should have followed the guidance in the DLA decision.
Judge Hemingway went on to find that the first tier tribunal: “does not appear to have made detailed enquiry as to the nature of the walking which was undertaken during the course of the three trips to Egypt. It did not explain why the walking on those relatively isolated occasions might be demonstrative of the claimant’s overall walking ability. It might have been, for example, that the claimant was making additional effort or was prepared to walk through pain, on those occasions, in circumstances where she would not normally have done so.”
The case was sent back to a different first tier tribunal to be heard afresh.
So, much though it may distress the DWP, the judge has found that claimants are entitled to put themselves through considerable pain and discomfort in order to travel abroad, without it resulting in them losing their PIP award.
You can download a copy of LG v Secretary of State for Work and Pensions (PIP): [2020] UKUT 343 (AAC)
