[2024] UKUT 338 (AAC)

I do not agree with these submissions. The Appellant’s case had consistently been that his ability to walk was limited as to distance and speed, and that he suffered pain throughout. Thus, in his claim form he said at page 37 “I walk slowly with a slight limp, I have pain at the base of my spine, shoulder (leftside) and neck which increases as I walk and envelops my whole torso. My right leg often gives way – very few steps and my right arm has started to shake a lot with spasms, my right arm sometimes flails around when my right leg gives way as I try to stay balanced”. His pain management doctor had written (page 45) that the Appellant “felt that his pain was present continuously and walking was aggravating his symptoms…He could that his walking was very impaired due to the back pain and could only walk for less than 10 minutes”. In his request for mandatory reconsideration the Appellant described constant pain and then said “I would rather push through the pain and stay as active and independent as I can, for as long as I can. I dread the thought of being in a wheel-chair or living in some sort of supported accommodation.” He said “I think it is fair to say that I cannot walk fifty yards as I struggle at every step”. The note of his oral evidence at the hearing was “I am in constant pain …the further I go the worse it gets….I think I could walk about 30 sec to 2 minute – not very long – it is the pain that would stop me.”

What the Appellant was saying in his written and oral evidence was that he suffered pain when he walked, that he would walk slowly for a short distance despite the pain but that it would get worse until the pain would stop him. It could not properly be assumed that, because the Appellant managed to keep going for a certain distance, any pain he experienced while he was walking was not relevant. If a claimant cannot carry out an activity at all, regulation 4(2A) does not come into play. Where a person is able to carry out an activity, pain is clearly a potentially relevant factor to the question whether he or she can do so to an acceptable standard.

Although not legally binding, the approach set out in PIP Assessment Guide (2016), which provides guidance for health professionals in assessing claimants, reinforces my conclusion:

“3.2.5

The fact that an individual can complete an activity is not sufficient evidence of ability. HPs may find it helpful to consider:

…

 Impact – what the effects of reaching the outcome has on the individual and, where relevant, others; and whether the individual can repeat the activity within a reasonable period of time and to the same standard (this clearly includes consideration of symptoms such as pain, discomfort, breathlessness, fatigue and anxiety).”

This was also the approach taken by Upper Tribunal Judge Parker in CPIP/2377/2015 where she said of regulation 4(2A) and 4(4):

“6.

… Matters such as pain, and its severity, and the frequency and nature, including extent, of any rests required by a claimant, are relevant to the question of whether a claimant can complete a mobility activity descriptor ‘to an acceptable standard’…

7.

Whether a claimant can stand and then move to a particular distance ‘to an acceptable standard’, inevitably links with two of the further relevant matters under regulation 4(2A): ‘repeatedly’ and ‘within a reasonable time period’. As these terms are statutorily defined, unlike the phrase ‘to an acceptable standard’, then if a claimant fails to satisfy that statutory test in either respect, it is unnecessary to give consideration to ‘an acceptable standard’; however, it might still technically be possible for a claimant, who is unable to show that he cannot carry out an activity repeatedly or within a reasonable time period, yet notwithstanding to establish that he is unable to do so ‘to an acceptable standard’. Such instances must be rare but may exist; for example a claimant who forces himself to walk quickly and repeatedly, through stoicism, despite a very high level of difficulty caused by matters such as pain, breathlessness, nausea or cramp.”

The Appellant here was asserting that his was such a case. He had not succeeded in showing that he could not walk over 50 metres repeatedly or within a reasonable time period, but he said that he did so in considerable pain. The answer to Mr Whitaker’s rhetorical question is found in the Appellant’s request for mandatory reconsideration from which I have cited above: that he would rather push through the pain in order to stay as active and independent as possible. In addition, in his claim form he said that he experienced other difficulties while walking – his arm going into spasm or flailing, and his leg giving way – which could also be relevant to whether he could walk the distance to an acceptable standard.

The tribunal was wrong not to consider what the impact of pain was on the Appellant’s ability to mobilise the distance found to an acceptable standard. The tribunal was not relieved of the requirement to consider the application of regulation 4(2A) simply because it, or any element of it, had not been mentioned in terms by the Appellant. The provision was put in issue by the evidence.

There is no need for me to determine the other matters raised in my grant of permission. In any event, on reflection I agree with Mr Whitaker’s submissions that whether the Appellant could walk the distance repeatedly did not arise on the evidence. Nor was there anything in the evidence to suggest that the Appellant’s condition was variable such that regulation 7 might apply. On the contrary, the Appellant’s case was that his condition was “pretty much the same from day to day” (page 105).

On the basis of the error of law which I have found, I allow the appeal and set aside the tribunal’s decision. Further findings of fact are required and so I have decided to remit this appeal to a different tribunal in accordance with the directions which are set out above.”.