A man who says his anxiety and agoraphobia mean he cannot get to unfamiliar places unaccompanied has had his disability benefit claim rejected – on the grounds he could always get a taxi. The Devon man was denied Employment and Support Allowance (ESA), a decision upheld by a tribunal which said:
“We found on the balance of probability that he would be able to use a taxi for example to get to an unfamiliar place and that therefore he would be able to get to a specified place with which he was unfamiliar without being accompanied by another person.”
In evidence to the Upper Tribunal, where the man, known as AB sought permission to appeal, a lawyer for the Department of Work and Pensions insisted “where a claimant is taken to a destination in a taxi the taxi driver, who is simply providing a paid-for transport service, cannot be said to accompany that claimant”.
An Upper Tribunal judge has now referred the case back to the First-tier Tribunal raising the question of whether “in such circumstances, such a journey could not be described as one made ‘without being accompanied by another person’ given the presence of a taxi driver”.
The issue may be crucial to interpreting one of the ESA tests used to qualify for financial support for those who are unable to work. Number 15(c) on a list set out in the Employment and Support Allowance Regulations 2008 says: “Is unable to get to a specified place with which the claimant is unfamiliar without being accompanied by another person.”
ESA claims are based on scores depending on inability to do certain day-to-day tasks that might affect ability to work such as walk for certain lengths or sit for certain periods of time. Fifteen points have to be amassed before the benefit is successful and 15(c) is worth six points.
AB said he could not accomplish the test (ie could not get to unfamiliar places unaccompanied) and offered a statement from the Depression and Anxiety Service that said he disclosed evidence of symptoms of social anxiety and agoraphobia. He argued that there was a significant difference between travelling by bus and travelling by taxi, not least because a taxi is provided for the exclusive use of a hirer and normally conveys a passenger door‑to‑door. Additionally his anxiety meant he would not be able to use one unless he knew the driver.
The Upper Tribunal Judge, Mark Richard Hemingway, considered the original Tribunal had erred in law because the purpose of question 15(c) was to find out whether a claimant is unable to get to an unfamiliar place without being accompanied by another person because of difficulties with mental, cognitive and intellectual function, (ie not whether there are facilities that could get him there). The case should be heard by a newly constituted tribunal.
Judge Hemingway’s view of this case might be considered a statement of the obvious. The aim of the questions in the ESA Regulations is to establish a minimum level of mental or physical incapacity that might trigger the ESA benefit payment. It is not to establish how far someone might be able to use the doubtless excellent service offered by the taxi-drivers of Devon – assuming that person could afford the service in the first place.
All manner of services might be available for disabled people. Indeed, there is much talk now of driverless cars. Will the Department for Work and Pensions, if it loses this case, come back in a couple of years when Google Chauffeur is fully operable and say: “Ahaa! he could certainly make that journey totally unaccompanied now”?
The question is: can a taxi driver, who knows where s/he is going and will ensure you get there, be considered to be “accompanying” someone who has no idea where he is going or how to get there?
Dictionaries were bandied about by the DWP lawyers to show a favoured meaning for the word “accompany” including the related “company”. Grumpy taxi drivers are perhaps not always the best “company” in the world – which is presumably what the government lawyer meant by these words:
“I submit that a taxi driver does not fit the dictionary definition; ‘company’ – the fact or condition of being with another or others especially in a way that provides friendship and enjoyment.”
But that is not the point. The purpose of Question 15(c) is not to establish whether the disabled person is having fun in the company of others but whether he or she can get to a place without the assistance of another. Taxi drivers provide that assistance for money. So might a care worker in other circumstances. And so might a friend or relation for free.
The point is to establish that the individual has such mental incapacity that they can’t get to a place without assistance. Judge Hemingway did not find resort to the dictionary helpful. The First-tier Tribunal erred in not seeing Question 15(c) as being about mental health and so underplayed the mental health issue altogether.
The case can be found: AB v Secretary of State for Work and Pensions (ESA) thanks to Bailii.