Practice Note: The test for ‘Virtually Unable to Walk' – Some Common Errors

Friday 8 October 2010

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Practice Note

DISABILITY LIVING ALLOWANCE

THE HIGHER RATE MOBILITY COMPONENT

THE TEST FOR VIRTUALLY UNABLE TO WALK – SOME COMMON ERRORS

The disability test for the higher rate mobility component has been described as “perhaps the most litigated area in social security law”(R(DLA) 4/03 para 19). The statutory test in regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991 (1991/2890) provides that in order to satisfy the conditions for whether someone is ‘unable or virtually unable to walk’ the following circumstances must be taken into account –

“his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk;”

The statutory test for higher rate mobility does not set down particular parameters (e.g. it does not specify a distance) and involves the fact-finder in exercising a judgement (Secretary of State for Work and Pensions v Moyna [2003] UKHL 44; [2003]; [2003] 1 WLR 1929). Case law has repeatedly referred to the fact that the statutory test is drafted in broad concepts, not in terms of precise distances and times, and has criticised tribunals for tending to focus too much on precise distances and times. Case law has held that the speed of walking (CDLA/2195/2008, paras 6-7); the distance covered (CDLA/4388/1999 para 4); and the onset of severe discomfort, are all matters that are susceptible to precise estimates (CDLA/3519/2008 [2009] UKUT 45 (AAC)). When applying the test, the tribunal has to take account of those statutory factors (time, speed, manner and distance of walking) that are relevant to the particular case. In addition, it has to consider any other factor that affects how the claimant makes progress on foot out of doors.

Case law indicates that common errors made by appeal tribunals in the application of this test include:

  • Equating the onset of severe discomfort with the point at which the claimant stops walking: A claimant may, in order to have a degree of normality of life, choose to walk at the cost of severe discomfort (R(DLA) 4/04 para 20(3) and CDLA/2235/2009; [2010] UKUT 85 (AAC) para 19).
  • Treating a certain distance as determinative of the test: A certain distance, such as 50 yards, cannot be used as a benchmark for whether a person is virtually unable to walk, as the regulations do not lay down a particular distance (CDLA/1832/2002 para 12). The test requires an exercise of judgement and tribunals need to be aware that estimates of distance by claimants are usually of doubtful accuracy and that walking ability may be variable (CDLA/4388/1999 para 4).
  • Ignoring the length of time involved: Rests which a claimant is forced to take from time to time before continuing to walk must be included when calculating “the length of time” the claimant takes to walk a particular distance (CDLA/805/1994).
  • Dealing with halts and pauses: A tribunal must consider, where a claimant pauses, whether he can “walk further or whether that really was the absolute limit of the claimant’s capacity to walk” (CDLA/2050/2002 para 17). If after a halt the claimant recovered after a period of rest and continued walking without severe discomfort, the statutory test does not preclude such continued walking from being assessed in the light of the evidence (R(DLA) 4/03 para 22).
  • Taking a snapshot instead of considering whether the claimant can repeat the walk: In considering whether a person can walk a particular distance most of the time, it is necessary to consider not only whether he or she can manage it once at some point during the day, but whether he or she can manage it throughout the day, and with what frequency they can repeat the walk (CDLA/2260/2009; NR v Secretary of State for Work and Pensions (DLA) [2010] UKUT 111 (AAC).

Postscript – Claimants using crutches

In cases where the claimant needs to use crutches as a means of propelling themselves forward on foot, the tribunal must start by asking itself the preliminary question - whether the claimant’s method of self-propulsion constitutes “walking” in any true sense of the word. If the claimant is ‘unable to walk’ then any assessment of the claimant’s virtual inability to walk under reg 12(1)(a)(ii) does not arise for consideration: see reasoning in (R(M) 2/89, CDLA/97/2001 and Sandhu v Secretary of State for Work and Pensions [2010] EWCA Civ 962.

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