Walking, wheelchairs and the WCA

Issue 237 (December 2013)

Simon Osborne describes a current split in the caselaw on the question of whether someone’s ability to ‘mobilise’ with a manual wheelchair refers only to functional limitations, or to wider personal factors such as the ability to store the chair. The split will hopefully be resolved in a forthcoming decision of a three-judge panel of the Upper Tribunal.

Introduction

The work capability assessment (WCA) includes an activity (Activity 1) that tests for ‘mobilising’ unaided by another person but including ability ‘with or without a walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably be, worn or used’. A wider context is provided by regulation 19(4)(b) of the Employment and Support Allowance Regulations 2008, which provides that in the WCA the claimant is to be assessed as if ‘wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used’.

The reference to ‘mobilising’ and use of a manual wheelchair clearly creates the possibility that a claimant who cannot actually walk will nevertheless not score points in the test, if s/he could reasonably mobilise using a manual wheelchair, and that ability means that s/he does not meet the relevant descriptors.

Indeed, in practice, a number of claimants who are either unable actually to walk, or who have severe limitations on their walking ability, have been scored nil or reduced points in the WCA because they would allegedly still be able to ‘mobilise’ using a manual wheelchair. Inevitably, therefore, caselaw has arisen about the application of this test and in particular what the ‘reasonableness’ test established by regulation 19(4) and the wording of Activity 1 actually means in such situations. However, currently the caselaw has taken divergent views.

The split in the caselaw

So far, the relevant caselaw is from the Upper Tribunal. The split in the approaches taken may be described as between a ‘personal circumstances’ approach to applying the reasonableness test and a ‘functional’ approach. Although these approaches share some common ground – for example, both at least imply that whether an NHS assessment has recommended manual wheelchair use will need to be considered – there is a crucial difference. The personal circumstances approach includes looking both at medical issues and at wider practical matters such as the claimant’s actual living circumstances with regard to wheelchair use, while the functional approach considers only issues relating to the claimant’s functional ability to use the wheelchair – ie, in a more narrowly medical context.

At time of writing, a three-judge panel of the Upper Tribunal (in cases with file numbers CE/327/2013 and CE/509/2013) had been convened to resolve this split; however, the decision was still awaited.

Personal circumstances approach

In the ‘personal circumstances’ approach, account is taken of limitations arising from the personal circumstances of the claimant, such as her/his ability to access and store a wheelchair. The claimant may, for example, live in very small accommodation with no appropriate storage, or there may be stairs, meaning the wheelchair could not be taken inside. It has been suggested that the affordability of the wheelchair could also be a factor.

This approach was first described by Judge Gamble in DM v SSWP [2012] UKUT 376 (AAC) (1 June 2012). In that case, the First-tier Tribunal rejected the claimant’s appeal, holding that she did not have upper body problems and so could use a manual wheelchair. Judge Gamble considered that the wrong approach. It was not right only to have considered the claimant’s upper body strength, and the tribunal should also have looked into whether she had had medical advice about using a manual wheelchair, whether she would in reality have access to one and whether one would be suitable, given that she lived in an upstairs tenement flat.

Most recently, that approach has been approved (and the contrary functional approach disapproved) by Judge Mark in BG v SSWP (ESA) [2013] UKUT 0504 (AAC) (11 October 2013). The claimant had serious problems with his knees and left thigh, and with pelvic pain, but had not been scored points for mobilising. Allowing the claimant’s appeal, Judge Mark said the new tribunal would have to consider potential manual wheelchair use. With regard to that it ‘did not make sense’ to say someone could mobilise with an aid that she did not have and ‘for practical reasons’ cannot obtain and use. Disapproving the approach taken in AR v SSWP (see below), the judge said that

the test in my judgement is whether the aid, the wheelchair, can reasonably be used by this claimant in his daily life...a claimant cannot reasonably use a wheelchair without having access to one, and I do not see how his ability to store one and to get to and from it can be disregarded...it is even possible that inability to afford a wheelchair may be relevant, although it would not normally be so given their relative cheapness and their availability from the NHS and charities where reasonably required.

Functional approach

In the ‘functional’ approach, the reasonableness test is limited to considering functional issues relating to use of a manual wheelchair, such as breathlessness and upper body strength, but also (potentially at least) to the ability to get in and out of and manoeuvre the wheelchair, and whether an NHS assessment for a wheelchair has been recommended and resulted in a recommendation to use one. This approach is undoubtedly narrower than the personal circumstances approach, but it should be noted that it nevertheless is not limited to considering upper body strength and breathlessness.

This approach was first set out in a decision of a Northern Ireland commissioner, Commissioner Stockman, in MG v Department for Social Development (ESA) [2013] NICom 359 (29 January 2013). Disagreeing with DM v SSWP (see above), the Commissioner held that a ‘functional’ approach was correct and that matters which went beyond functional ability to use a wheelchair (such as storage) had to be left out of account. But the correct approach did involve considering whether or not a referral had been made for an NHS assessment, and whether that assessment recommended manual wheelchair use.

That was endorsed (and DM v SSWP disapproved) by the later decision of Judge Gray in TB v SSWP (ESA) UKUT 0408 (AAC) (22 August 2013), where it was held that reasonableness was to be considered ‘in terms of the effect such use would have upon [the claimant’s] medical condition’. That approach did involve regard to more than an upper limb or cardiorespiratory problem; a wheelchair was a substitute method of mobilising and so regard also had to be had for issues like muscle wasting. Very shortly afterwards, the functional approach was also endorsed by Judge Williams in AR v SSWP (ESA) [2013] UKUT 0417 (AAC) (29 August 2013). Agreeing with Judge Gray and disagreeing with DM v SSWP, Judge Williams nevertheless expanded the approach to include some practical matters closely related to use of wheelchair:

...it has to be asked in every case whether this particular claimant can reasonably mobilise with a manual wheelchair without the assistance of any other person as a practical question...the user has to be able to get into it and out of it unaided and has to be able to deal unaided with the other aspects inherent in using a wheelchair to mobilise.

Resolving the split

Hopefully, the decision of the three-judge panel will clarify the correct approach to the reasonableness test in the context of wheelchairs and the WCA. In the meantime, appeals where this is in issue (eg, where the claimant needs to show that the personal circumstances approach is correct) will almost certainly be stayed. Otherwise, advisers should consider whether the decision of the three-judge panel is actually necessary to a successful outcome – ie, if the claimant should clearly be scored sufficient points even in the more narrowly focused functional approach.

 


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