When a claimant who uses a wheelchair may not be assessed as being able to mobilise more than 50m for the purposes of a UC or ESA Work Capability Assessment?
Assessment of mobilising descriptors based upon use of a wheelchair must be supported by evidence of the distance a claimant can cover
Today we will look at a recent Upper Tier Tribunal ruling that looked at whether a wheelchair user could be deemed to be able to mobilise for the purposes of the Employment and Support Allowance (ESA) Work Capability Assessment (WCA)
The case reference for this decision is CE/1585/2017 should you choose to use the following information in a Mandatory Reconsideration request or as part of a submission to a forthcoming appeal hearing.
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The claimant suffered from progressive spastic paraparesis which affected his functioning in a number of ways including restricting his ability to walk, and reducing voluntary control over his bladder. He was awarded employment and support allowance in a decision that found he had limited capability for work based solely upon scoring 15 points for continence. He appealed that decision, on the basis that he satisfied the support group criteria for mobilising - as he could not mobilise for more than 50 metres (descriptor 1 in schedule 3 to the Employment and Support Allowance Regulations 2008).
The First-tier Tribunal assessed evidence from the claimant and his doctors, finding that there was no functional impairment of the claimant's upper limbs, and although he had not yet had an assessment for a wheelchair it was reasonable to expect that a suitable wheelchair would be available. The tribunal went on to decide that the claimant could not walk for more than 50 metres but could cover the distance using a wheelchair so that he did not satisfy descriptor 1 of schedule 3.
The claimant appealed to the Upper Tribunal.
For a full list of the ESA Work Capability Assessment criteria, check out this page on our web site Here
What was the Upper Tribunal asked to look at?
Whether a tribunal that has found it reasonable for a claimant to mobilise using a wheelchair must make specific findings on the distance that the claimant is able to cover.
What did the judge decide?
Judge Poynter allows the appeal and remakes the decision, finding that the claimant was entitled to the support component from the end of his assessment period on account of difficulties mobilising.
Why did the judge make this decision?
Whilst commending the tribunal for taking on the wheelchair question instead of taking the easy course 'to fudge the issue and place the claimant in the support group’, Judge Poynter finds that the tribunal was in error for concentrating on whether a manual wheelchair could reasonably be used, to the complete exclusion of the issue of how far the claimant could mobilise (or repeatedly mobilise) without experiencing significant discomfort or exhaustion. The lack of any reference to distance suggests to Judge Poynter that the tribunal moved straight from the conclusion that a wheelchair could reasonably be used, to the conclusion that the claimant did not satisfy descriptor 1 in schedule 3.
Furthermore, Judge Poynter holds that the tribunal’s approach lacked reference to a ‘benchmark’ of how far a person with disabilities such as the claimant could normally propel (or repeatedly propel) a manual wheelchair. Judge Poynter considers that such a reference provides something against which the tribunal’s findings about upper body function could be compared, and that -
‘Without that, and subject to [the] paragraph below, there was no evidence in this case on which the First-tier Tribunal could properly have made a judgment on the balance of probabilities about how far the claimant could mobilise (or repeatedly mobilise) in a manual wheelchair. Moreover in such a case, the written statement of reasons would have needed to explain how the tribunal had assessed the evidence by reference to the benchmark.
The information about how far the ‘average’ wheelchair user can propel his wheelchair is not general knowledge, but it might have been within the specialist knowledge of the First-tier Tribunal’s medical member or disability-qualified member. However, if the First-tier Tribunal had been relying on the specialist knowledge of its members, the written statement of reasons should have said so.’ (paragraph 29 and 30)
Going on to set out his reasons for remaking the decision in the claimant’s favour, Judge Poynter highlights how tribunals and the Secretary of State need to be cautious in relying on the prospect of a claimant having a wheelchair assessment to support a finding that it is reasonable to use a wheelchair (referring also to guidance in the reported case  AACR 5). Noting that the very fact that an assessment is required implies the possibility of an outcome in which a wheelchair is judged to be unsuitable, Judge Poynter holds that in this case the Secretary of State had not established that a wheelchair could reasonably have been used at the date the decision was made.
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