Submission re: Planning and following journeys
The DWP have issued misleading guidance to assessors in relation to ‘Planning and following a journey’ which is likely to lead to incorrect assessments by health professionals and errors of law by decision makers who rely upon the findings of the assessor.
Background
On 27 May 2014, the DWP issued an updated version of the ‘PIP Assessment Guide. A DWP guidance document for providers carrying out assessments for Personal Independence Payment’ (the Assessment Guide).
In this edition of the Assessment Guide significant additions and alterations were made to guidance relating to ‘Activity 11. Planning and following journeys’.
The effect of these alterations appears to be to instruct health professionals that claimants who need accompanying by another person when following the route of a journey, because of a mental health condition, are covered solely by descriptor 11 (b). ‘Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to the claimant’ and no other.
Clear instructions are given in the Assessment Guide in relation to 11 (d) and 11 (f) that the descriptor ‘does not apply to claimants who require someone with them for support only, as this is covered by descriptor B.’
In addition, the Assessment Guide states that 11 (b) does not apply where the claimant needs ‘ simply encouragement when leaving the home’
We would submit that this guidance is erroneous and leads to the incorrect descriptors being selected by assessors for claimants with mental health conditions such as PTSD, anxiety disorders and agoraphobia.
Where decision makers adopt the findings of the assessors in these circumstances they will be guilty of an error of law as a result of applying the wrong criteria when deciding which descriptors apply.
We would submit that, instead, the words of the descriptors should be given their ordinary meaning except where specific definitions have been given in the legislation.
In this regard, ‘prompting’ is defined by the legislation as meaning ‘reminding, encouraging or explaining by another person’.
Descriptor 11 (b)
On 13 December 2012 the DWP published a document entitled ‘The Government’s response to the consultation on the Personal Independence Payment assessment criteria and regulations’ (the Response document).
The Response document detailed the responses that had been received by the DWP to the second draft of the PIP criteria, gave the official reply to those responses and set out the third and final draft of the PIP criteria that are now in force.
The second draft of the ‘Planning and following a journey’ activity was as follows:
A Can plan and follow a journey unaided. 0 points
B Needs prompting for all journeys to avoid overwhelming psychological distress to the individual. 4 points
C Needs either –
(i) supervision, prompting or a support dog to follow a journey to an unfamiliar destination; or
(ii) a journey to an unfamiliar destination to have been entirely planned by another person.
D Cannot follow any journey because it would cause overwhelming psychological distress to the individual. 8 points
E Needs either –
(i) supervision, prompting or a support dog to follow a journey to a familiar destination; or
(ii) a journey to a familiar destination to have been planned entirely by another person. 15 points
It is clear from 6.16 of the document (below) that the policy intention was for descriptor B to apply to ‘someone who requires prompting to leave the house in order to follow a journey’ and descriptor E to apply to ‘someone who is unable to follow a familiar journey at all unless accompanied by another person’.
6.16 Some respondents suggested that descriptor B in the second draft was technically the same as descriptor E and our differentiation between the two was incongruous. However, we believe there is a significant difference between someone who requires prompting to leave the house in order to follow a journey and someone who is unable to follow a familiar journey at all unless accompanied by another person. We believe this justifies the differences between the descriptors. However, in light of this point and other comments referred to above, we have simplified the criteria and made some changes to terminology to make them clearer and simpler to apply. For example the differentiation between the new descriptor B and new descriptor F is clearer now.
The document, therefore, explains that the descriptors have been made clearer and simpler in the final draft of the descriptors, those that are now in force. There is no suggestion that their meaning has been changed so drastically that a descriptor that applied to someone who needs encouragement to leave home in the second draft now specifically does not apply in those circumstances in the final draft and instead only covers people who need accompanying when actually on their journey for the purpose of ‘prompting’.
We would submit, therefore, that the language of 11 (b). ‘Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to the claimant.’ should be given its everyday usage and may apply where a claimant needs encouraging to leave the house and set out on their journey.
Descriptors 11(d) and 11 (f)
In relation to 11 (d) Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid , the current Assessment Guide states:
‘For example: may apply to individuals who cannot due to their sensory or cognitive impairment work out where to go, follow directions or deal with unexpected changes in their journey when it is unfamiliar. It does not apply to claimants who require someone with them for support only, as this is covered by descriptor B. The accompanying person should be actively navigating for this descriptor to apply.’
Similarly, in relation to 11 (f) Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid the current Assessment Guide states:
For example: may apply to claimants who cannot work out where to go, follow directions or deal with unexpected changes in their journey, even when the journey is familiar. It does not apply to claimants who require someone with them for support only, as this is covered by descriptor B.
However, the Response document states at 6.6:
6.6 Some respondents were concerned that this activity did not take sufficient account of individuals who have disinhibition or little awareness of risk. This is, however, dealt with by the fact that individuals must be able to follow journeys safely. If, for example, they need to be supervised or supported to follow a journey safely because they are unaware of the risks associated with it, they are likely to receive a high-scoring descriptor.
As descriptor 11 (b) is the lowest of the scoring descriptors it is absolutely clear that it was not the intention of the legislation to limit awards for support to descriptor(b) only.
Similarly at 6.13
6.13 This activity has received numerous comments in relation to the wording ‘overwhelming psychological distress’, with particular reference to why we proposed to award more points for needing support to undertake journeys to familiar locations than where someone cannot undertake journeys because of overwhelming psychological distress. We believe that individuals who are unable to leave their homes as a result of overwhelming psychological distress will face additional costs and barriers and that therefore a high level of points should be awarded in recognition of these extra costs. However, we believe that individuals who can leave their homes but require considerable support to do so, such as needing constant supervision or to take more journeys by taxi, may face even higher extra costs and barriers, and that this reflects a higher overall level of need. We therefore consider it appropriate to award them higher priority in the benefit.
Again, this paragraph makes it clear that it was not the intention that only those who require navigational support who should benefit from the higher scoring descriptors.
At 6.14 of the Response document, it is stated that:
6.14 Concern was raised that the activity takes insufficient account of the impact of mental health conditions on mobility. We do not consider this the case. Individuals could potentially score in a number of descriptors in the activity if they cannot go outside to commence journeys because of their condition or need prompting or another person to accompany them to make a journey.
Once again, it is clear that the intention was that claimants with mental health conditions could score points for ‘a number of descriptors’ rather than solely for 11 (e) if they are entirely unable to go outdoors or 11(b) if they can go outdoors but require support.
The legislation as envisaged and written creates a graded level of support for all claimants with difficulties. It begins with those who need help to get started on a journey, who get points but no award, progressing through those who need help on unfamiliar routes, who get the standard rate of mobility, and ending with those who need help on familiar routes, who get the enhanced rate.
The legislation as interpreted by the assessment guide would leave this structure intact for those who need help with navigation.
But for people with mental health conditions there would be just 4 points – meaning no award of benefit in the absence of physical conditions as well – for everyone, unless they were absolutely unable to go outdoors at all, in which case they would get the standard rate
We would submit that this is neither what the legislation says or was ever intended to say and that, therefore, the guidance given to assessors in the Assessment Guide is in error.
Fight or flight
In addition, or in the alternative, we would submit that claimants with mental health conditions may be unable to follow a route for the purposes of this descriptor because of cognitive impairment, as the Assessment Guide requires.
Claimants who experience extreme distress or panic attacks when on a journey may enter ‘fight or flight’ mode where their only response is to remain rooted to the spot with fear or rush away in any direction whatsoever.
In brain function terms the limbic system has overridden the cortex, meaning that their response to fear is now beyond their conscious control and their cognitive ability to remember and follow a route is lost.
In these circumstances they are no longer able to ‘follow the route of a journey’.
Having another person present may mean that the panic attack can be prevented in the first place or that once a person has begun to panic the intervention of an accompanying person can allow the claimant to regain conscious control of their response and, once again, follow the route of their journey.
That accompanying person’s role may include such things as:
• Monitoring the claimant for signs of anxiety in order to intervene.
• Explaining and describing surroundings and situations constantly in order to prevent a panic attack.
• Holding someone’s hand or stroking them.
• Encouraging them to pay attention to their breathing.
• Keeping them distracted and occupied so they don’t notice strangers.
• Making conversation to provide a focus.
• Analysing and explaining a situation ahead, where there might be roadworks, for example.
• Telling them in what order to do things in case they get flustered and lose ability to concentrate.
• Intercepting, if approached by someone.
• Preventing or avoiding situations that can cause panic, such as crowds.
• Keeping them safe if they attempt to rush into the road or into other people whilst in a state of panic.
• Helping them to abandon a journey and return home safely if they become too distressed to continue.
The accompanying person is providing a great deal more than the ‘prompting’ set out in 11 (b)and without that person present then they may not be reliably able to follow the route of a journey because of the possibility of experiencing a panic attack. They may, therefore, meet the requirements for 11 (d) or 11(f).