TF v Secretary of State for Work and Pensions (PIP)

A claimant who cannot reasonably stand and move more than 20 metres unaided may satisfy mobility activity 2(c), even if the claimant can move more than 50 metres with an aid. If both descriptors 2(b) and 2(c) are met, the higher score for 2(c) applies, subject to the required-period condition.

In assessing a mobility descriptor, a tribunal must apply both its terms and regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013. Stopping to rest does not as a matter of law prevent movement from counting towards the distance. The tribunal must make a rational evaluative judgment about safety, acceptable standard, repeatability and reasonable time.

The claimant appealed against a decision of the First-tier Tribunal sitting at Weymouth on 11 May 2015 concerning Personal Independence Payment. The appeal before the Upper Tribunal concerned the mobility component, although setting aside the decision restored the appeal against the total disallowance.

The First-tier Tribunal found that the claimant could not reasonably move 20 metres unaided, but could move further with crutches and could not move more than 200 metres safely, repeatedly and within a reasonable time. It awarded points under mobility activity 2(b) without considering activity 2(c).

The central issue was whether those findings required consideration of the higher-scoring descriptor, and how regulation 4 applied to mobility activities.

1. Appeal allowed. The First-tier Tribunal made an error of law by failing to consider mobility activity 2(c). Its own finding that the claimant could not reasonably move even 20 metres unaided could satisfy that descriptor. The fact that he could move more than 50 metres using crutches did not preclude it.

2. A claimant may satisfy both activity 2(b), worth four points, and activity 2(c), worth eight points. In that event the higher-scoring descriptor applies, provided that the claimant meets it on more than 50% of the days in the required period under regulation 7(1)(b) of the Social Security (Personal Independence Payment) Regulations 2013.

3. The new tribunal must assess each descriptor both by its own wording and by regulation 4(2A). It must consider whether the activity can be done safely, to an acceptable standard, repeatedly and within a reasonable time. Pain, the severity of pain, and the frequency, nature and duration of rests may bear on whether movement is to an acceptable standard.

4. A rest does not necessarily prevent a claimant's movement from being treated as covering the required distance. The duration and frequency of rests may vary greatly. Their effect is a factual and evaluative matter for the tribunal, provided its analysis is rational and applies regulation 4.

5. Where inability to act repeatedly or within a reasonable time is established, it is unnecessary to consider acceptable standard. Conversely, although rare, a claimant may be able to act repeatedly and within a reasonable time but still be unable to do so to an acceptable standard.

6. The decision was set aside and remitted to a differently constituted tribunal for a wholly fresh hearing. That tribunal must determine entitlement, including the daily living component and, if appropriate, the duration of any award, by reference to the circumstances at the date of the original decision.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal decision and remitted the case for a wholly fresh hearing.

• First-tier Tribunal (Social Entitlement Chamber), Weymouth: on 11 May 2015 determined the claimant's appeal concerning Personal Independence Payment. Its decision was set aside for error of law.