LB v The Secretary of State for Work and Pensions

When assessing mobility for personal independence payment, a tribunal must make sufficient findings on each reliability criterion in regulation 4. A claimant’s ability to walk a stated distance cannot establish entitlement without findings on the time taken, any repetitions reasonably required, and whether those repetitions can be completed safely and within a reasonable time.

Pain while walking is material to whether the activity can be performed to an acceptable standard. A claimant who continues to walk despite pain does not necessarily perform the activity to that standard. The tribunal must make findings on the level and effect of pain, even if it concludes that the distance can otherwise be covered safely, repeatedly and within a reasonable time.

The claimant had been awarded the standard-rate daily living component of personal independence payment but no mobility component. On appeal, the First-tier Tribunal awarded four points for moving around, finding that he could stand and move more than 50 metres but no more than 200 metres. That remained insufficient for a mobility award.

The claimant appealed only the mobility component. The issue was whether the First-tier Tribunal had lawfully assessed his ability to move around, including his evidence of pain, use of supermarket aisles, time taken and the need for rests. The Secretary of State did not oppose the appeal and both parties agreed that the mobility issue should be determined afresh.

1. Appeal allowed. The Upper Tribunal set aside the part of the First-tier Tribunal’s decision concerning the mobility component and remitted that issue for a complete rehearing before a differently constituted First-tier Tribunal.

2. The First-tier Tribunal’s reliance on the claimant’s ability to walk two supermarket aisles did not support its conclusion that he could move between 50 and 200 metres to the required standard. It made no findings on the length of the aisles or the time taken to walk them. Those findings were necessary to decide whether he could complete the activity within a reasonable time period under regulation 4(4)(c) of the Social Security (Personal Independence Payment) Regulations 2013.

3. The tribunal also had to determine whether walking the aisles would reasonably need to be repeated, how often repetition would be required, and whether the claimant could complete every required repetition safely and within a reasonable time. It made none of those findings. Its assessment therefore failed to address the statutory requirement that an activity be capable of being performed repeatedly.

4. Further, the tribunal made no finding about the level of pain experienced while walking. Following PS v SSWP [2016] UKUT 326 (AAC), pain is relevant to whether walking can be performed to an acceptable standard. Continuing to walk despite pain is not, without more, performance to an acceptable standard. This required consideration even on the first traversal of the supermarket aisles.

5. Fresh findings of fact were required on both mobility activities. The mobility-component issue was remitted for redetermination entirely afresh.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision insofar as it concerned mobility, and remitted that issue for a fresh hearing: [2024] UKUT 338 (AAC).

• First-tier Tribunal (Social Entitlement Chamber): on 5 January 2024, confirmed the standard-rate daily living award and awarded four mobility points, which did not qualify the claimant for the mobility component (reference 1685017640365684).