Key Points for Welfare Rights Officers
This Upper Tribunal decision is useful in ADP mobility appeals, particularly where the First-tier Tribunal has failed to properly apply the reliability criteria in regulation 7 of the Disability Assistance for Working Age People (Scotland) Regulations 2022.
Background
- The appellant had been awarded 4 points under Mobility Activity 2 (Moving Around) by the First-tier Tribunal.
- Permission to appeal was initially refused but was granted on reconsideration by a differently constituted Upper Tribunal.
- The appellant argued that the Tribunal failed to properly assess whether she could walk:
- safely;
- to an acceptable standard;
- repeatedly; and
- within a reasonable time.
Upper Tribunal’s Findings
The Upper Tribunal found an arguable error of law because:
- The First-tier Tribunal did not adequately engage with evidence about the frequency of walking difficulties and the after-effects of walking.
- There was evidence before the Tribunal about the claimant’s limitations, but the decision did not clearly explain why that evidence was rejected or how it was weighed.
- A tribunal assessing mobility descriptors must consider the regulation 7 reliability requirements, not simply the distance a person can walk.
Outcome
- Permission to appeal was granted.
- The appeal was allowed on the Mobility Activity 2 issue.
- The First-tier Tribunal’s decision on Mobility Activity 2 was quashed.
- The case was remitted to a newly constituted First-tier Tribunal for a de novo hearing on that activity.
Practice Points for Representatives
1. Distance alone is not enough
- Ensure submissions focus on reliability criteria under regulation 7, not just how far the claimant can walk.
2. Evidence of consequences matters
- Obtain evidence on:
- pain;
- fatigue;
- recovery periods;
- deterioration after walking;
- variability; and
- how often the activity can be repeated.
3. Challenge inadequate reasons
- Where a tribunal accepts evidence of significant mobility problems but does not explain why that evidence does not justify a higher descriptor, there may be an error of law.
4. Reliability must be explicit
- In written submissions, link the facts directly to the regulation 7 tests:
- safe;
- acceptable standard;
- repeated as often as reasonably required; and
- reasonable time.
Why the Case Matters
The decision reinforces that Mobility Activity 2 assessments are not merely about maximum walking distance. Tribunals must make clear findings on whether the claimant can perform the activity reliably, including the impact of pain, fatigue, deterioration and repeatability. Failure to do so may amount to an error of law.
This case should be cited alongside other ADP/PIP mobility authorities where the dispute concerns whether walking can be carried out repeatedly and to an acceptable standard, rather than simply whether the claimant can physically cover a particular distance.