AH v The Secretary of State for Work and Pensions

For mobility activity 1 under the Social Security (Personal Independence Payment) Regulations 2013, descriptors 1.a, 1.b, 1.c, 1.d, 1.f and 1.e should be considered in that order. Regulation 4(2A) applies to both “can” and “cannot” descriptors. For descriptors 1.d and 1.f, the decision-maker must first assess ability without assistance and then ability with the assistance specified in the descriptor.

Descriptor 1.e is considered only after descriptor 1.f. A claimant cannot satisfy both descriptors. All relevant physical and mental conditions must be considered. Regulation 7(2) requires a day-by-day assessment of likely ability, rather than a simple count of activities actually performed. Actual performance is relevant evidence, but the reasons for inactivity must be examined.

AH and AK appealed against separate decisions of the First-tier Tribunal concerning entitlement to the mobility component of personal independence payment. Both cases concerned mobility activity 1, planning and following journeys, and the choice between descriptors 1.e and 1.f.

AH experienced significant psychological distress but regularly went out with a friend. AK had severe anxiety and substantial visual impairment. The First-tier Tribunals awarded both appellants descriptor 1.e and did not award descriptor 1.f. The Upper Tribunal considered the application of regulations 4(2A) and 7(2), the relationship between descriptors 1.e and 1.f, and the relevance of conditions other than psychological distress.

1. Appeals allowed. The First-tier Tribunal decisions involved errors of law. They were set aside under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007. Both cases were remitted to fresh First-tier Tribunals.
2. The mobility activity 1 descriptors must be considered in the sequence 1.a, 1.b, 1.c, 1.d, 1.f and 1.e. Descriptor 1.e reflects the greatest functional restriction, while descriptor 1.f carries the higher points award. Considering 1.e first risks overlooking the circumstances covered by 1.f.
3. Regulation 4(2A) applies to all mobility activity 1 descriptors, including those expressed negatively. For descriptors 1.d and 1.f, the inquiry has two stages: whether the claimant cannot follow the relevant route to the regulation 4(2A) standard without assistance, and, if so, whether they can do so with the assistance specified in the descriptor.
4. Descriptor 1.e is considered only if the claimant cannot follow a familiar journey to the required standard even with assistance. A claimant cannot satisfy both descriptors 1.e and 1.f. The high threshold conveyed by “overwhelming” must be respected, but regulation 4(2A) must not be applied so as to create a gap between the two descriptors. The claimant’s entire physical and mental condition must be considered when assessing descriptor 1.f.
5. Regulation 7(2) requires the decision-maker to ask, for each day of the required period, whether the claimant would probably have satisfied the descriptor if assessed on that day and, where relevant, had the specified assistance. What the claimant actually did is relevant but not determinative. If the activity was not undertaken, or was undertaken less than expected, the reasons must be examined.
6. The AH Tribunal misapplied AA v SSWP (PIP) [2018] UKUT 339 (AAC), adopted an unduly expansive approach to “overwhelming”, failed to assess descriptor 1.f first, and considered only practically available support. It also failed to justify determining the appeal without an oral hearing or further evidence. The AK Tribunal wrongly considered descriptor 1.e first and assessed only what AK had actually done.

• First-tier Tribunal (Social Entitlement Chamber): AH’s appeal was dismissed on 13 December 2022. AK’s appeal was dismissed on 29 April 2024.
• Upper Tribunal (Administrative Appeals Chamber): Both appeals were allowed. The First-tier Tribunal decisions were set aside and both cases were remitted to fresh tribunals.