THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
DECISION OF THE UPPER TRIBUNAL JUDGE

The appeal is allowed.

The decision of the tribunal given at Dunfermline on 3 December 2014 is set aside.

The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out below.

REASONS FOR DECISION

Summary

1.	I have allowed the appeal and remit to a differently constituted tribunal to rehear the appeal.

2.	Of relevance to this decision, the tribunal awarded the claimant 4 points for Activity 11b “Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to the claimant” whereas the claimant contended that Activity 11f “Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid” should have been awarded from Activity 11 – Planning and following a journey from Schedule 1 to The Social Security (Personal Independence Payment) Regulations 2013 (“PIP Regulations”).

3.	This appeal concerns the proper interpretation of the phrase “follow the route of a … journey” in Activity 11d and 11f as part of Activity 11.
	
4.	The relevant part of the tribunal’s Statement of Reasons is:

“16. 	Planning and familiar journeys – In our view, it does not follow from the appellant feeling or being unable to go out alone that this is because she is unable to follow a route. It was not argued or found that the appellant has a cognitive, intellectual or sensory impairment which renders her unable to follow any route, whether familiar or unfamiliar. We were satisfied from what was said in the PIP2, to the HP and us that the appellant’s difficulty in going out was because she was prone to anxiety giving rise to a need for prompting in order to undertake any journey to avoid overwhelming psychological distress and that with such prompting she could, and did, undertake journeys. We conclude that the appellant did not come within the terms of a higher scoring descriptor.”

Grounds of appeal & Secretary of State’s Submissions

5.	The Ground of Appeal is that the tribunal misinterpreted the descriptor by imposing a higher requirement than the descriptor warranted. It is argued that the evidence shows that the claimant cannot go out without another person and accordingly that she is unable to follow a route unaccompanied because she is unable, and/or feels unable due to anxiety, to go out alone in the first place.

6.	The Secretary of State does not support the appeal contending that the tribunal correctly considered the requirements of the descriptor. Reference is made to the submission to pages 103/106, where in summary the Secretary of State’s submission is that:

“the particular wording used here leads one to the conclusion that what is meant to be assessed is the ability of the Claimant to navigate a route, and whether they need help with this particular faculty. It is not meant to assess whether any Claimant, for whatever reason, needs another person with them when walking.”

Reference is also made to the definition of “follow” in Collins English Dictionary and to the meaning of “route” in R(DLA) 3/05 and R(DLA) 1/03. The Secretary of State submits that the reference to “another person”, and “assistance dog” or an “orientation aid” and argues that these “show that orientation and sensory impairment problems are meant to be included under this descriptor” and that accordingly it is navigation that is being tested in these descriptors. A person who required to be present but did not help with navigation would not be included.

7.	In response the claimant’s representative argues that “A person who cannot undertake a journey, cannot follow a route” and submits “that the test for mobility are not designed so that someone who can plan and follow a route, intellectually, or in their imagination, but due to a disability cannot execute it, unless accompanied, is to be excluded from the benefit.”   I refer to the full UT3 at page 108/109.

Legislation

8.	Activity 11 – Planning and following a journey is in the following terms:

Column 1 
Activity 	
Column 2 
Descriptors 	
Column 3 
Points 
	
1. Planning and 
following a journey.
	a. Can plan and follow the route of a journey unaided.	0	
	b. Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to the claimant.	4	
	c. Cannot plan the route of a journey.	8	
	d. Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid.	
10	
	e. Cannot undertake any journey because it would cause overwhelming psychological distress to the claimant.	
10	
	f. Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid.	
12	

Discussion

9.	I consider that the meaning of “cannot follow the route of a … journey without another person …”  in Activities 11d and 11f has to be determined in the context of all the listed sub-activities in Activity 11 having regard to the other Activities. Reading each sub-activity on its own suggests that there is no consistent theme between each sub-activity. Activity 11a refers to “Can plan and follow the route of a journey unaided” while Activity 11c is the opposite i.e. “Cannot plan the route of a journey”.  Activities 11b and 11e refer to the need for “prompting to be able to undertake” or “cannot undertake” a journey “to avoid overwhelming psychological distress” or “it would cause overwhelming psychological distress”. So while there is a mental health element specified for Activities 11b and 11e, there is no specific mental health element in the other activities. It also seems to me to be extraordinary that a person who cannot undertake any journey because it would cause overwhelming psychological distress (Activity 11e) gets only 10 points, whereas a person who can go out and follow a journey on a familiar route with another person (Activity 11f) gets 12 points – so the permanently housebound gets less points that the person who can sometimes go out.

10.	The Secretary of State’s position is that there is no evidence that the claimant has a cognitive impairment that would render her unable to navigate a route although the evidence shows that she never goes out alone not even to the local shops due to anxiety. It is said that the anxiety does not impede her ability to navigate a route. Submission paragraph 6.

11.	If the Secretary of State is right then Activities 11d and 11f stand in a category of their own relating to the ability to navigate, whereas Activities 11b and 11e are in a different category relating to “psychological distress”. 

12.	It is my opinion that is not right. I consider that “cannot follow” does not have the restricted meaning put forward by the Secretary of State. It is the “cannot” that is the significant word and “cannot” is not qualified by any reason. I consider that is covers the situation where a claimant “cannot follow” the route because they cannot navigate the route or because they cannot follow it because of some psychological factor, such as anxiety, even if they have the intellectual capacity to follow the route in theory. Even if a claimant can in theory navigate a route, if the claimant cannot in fact go out and follow it without the assistance of another person, dog or other aid, whatever that reason, I consider it brings the claimant within the Activity. There is, with the exception of Activity 11e (as noted above) a logical progression in the Activities. If a claimant can “plan and follow” a route there are no points; if the claimant can plan and follow the route, but needs prompting to go out and follow it, then it is 4 points. The next stage requires someone else to plan the route for the claimant, who must then be able to follow that plan alone and hence gets 8 points. The next stage is the person who cannot follow an unfamiliar route without another person etc, so the 
activity gets to the stage where outside assistance is needed in order to be able to follow the route and thus qualifies for 10 points.

13.	I do not accept the Secretary of State’s argument [Submissions paragraph 4] that “another person” has to be construed in line with “assistance dog” and “orientation aid” so that “another person” is restricted to someone helping with “orientation and sensory impairment” alone. There are definitions of “assistance dog” and “orientation aid” which limited the scope of dog and aid, but there is no definition limiting the purpose for which the person can be used. Activities 11d and 11f do not qualify “another person” such as “aided by” or “assisted by” which are words defined in paragraph 1 of the schedule. I therefore conclude that the reason the person is required so that the claimant can follow the route can be any reason including a mental health reason such as overcoming anxiety or other psychological distress.

14.	I therefore hold that the tribunal erred in law and reject the approach taken by the Secretary of State to the meaning of these descriptors. The tribunal was wrong to conclude that:

“it does not follow from the appellant feeling or being unable to go out alone that this is because she is unable to follow a route. It was not argued or found that the appellant has a cognitive, intellectual or sensory impairment which renders her unable to follow any route, whether familiar or unfamiliar.”

Disposal

15.	I have decided to remit to a differently constituted tribunal to rehear the appeal, because I do not consider that I can make the decision myself. The tribunal concluded on the evidence that:

“We were satisfied from what was said in the PIP2, to the HP and us that the appellant’s difficulty in going out was because she was prone to anxiety giving rise to a need for prompting in order to undertake any journey to avoid overwhelming psychological distress and that with such prompting she could, and did, undertake journeys. ….”

On the face of it that is a reasonable conclusion on the evidence, but it must be suspect in the context of this case, because the tribunal misinterpreted Activities 11d and 11f and therefore would not have considered them. Having ruled them out the tribunal was left with no alternative, but to award Activity 11b, because the claimant clearly did not come within Activity 11e.

16.	I therefore remit to a differently constituted tribunal to rehear the appeal. The tribunal will have to take into account my interpretation of the meaning of Activity 11d and 11f in deciding what activity, if any, under Activity 11 should be awarded to the claimant. Of course the tribunal rehearing the appeal will have to consider the other activities claimed to qualify for the daily living component at the standard rate unless the Secretary of State concedes the other activities awarded by the tribunal in paragraph 4 of the Decision Notice.

					(Signed)
Sir Crispin Agnew of Lochnaw Bt QC
Judge of the Upper Tribunal
Date:  23 June 2015