England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER

		Royal Courts of Justice The Strand London Wednesday 2 October 2002

Wednesday 2 October 2002

1. LORD JUSTICE BROOKE: This is a renewed application for permission to appeal against a decision of a Social Security Commissioner on 18 April 2002, when he dismissed an appeal against a decision of a Disability Appeal Tribunal on 1 August 2001. The Disability Appeal Tribunal dismissed two decisions of adjudicating officers, one on 12 July 2000 when an adjudicating officer reviewed and superseded the decision of another adjudicating officer made six years previously when a disability living allowance had been awarded to the applicant, and a month later when an adjudication officer refused to revise that decision.
2. I have already given permission to appeal in relation to one part of the Social Security Commissioner's decision which related to the care component and the cooking test contained in the care component, because it appeared to me desirable that the Court of Appeal ought to review the law and the various decisions relating to the cooking test.
3. On the other hand, Mr Boyd also sought permission to appeal against the decision of the Social Security Commissioner relating to the mobility component. When I dismissed that application on paper, I expressed the view that the issues relating to the mobility component were the kind of issues Hale LJ would have in mind in Cooke v Secretary of State for Social Security [2000] EWCA Civ 734: that the two specialist appeal bodies would have infinitely more experience than the Court of Appeal of all the different considerations relating to the walking test, and I expressed the view that there were no good grounds for sanctioning a further appeal to a non-specialist appellate court.
4. Mr Boyd now applies for that decision to be reconsidered. As this court has recently said in the case of Sen Gupta [2002] EWCA Civ 1104, it frequently happens that on reconsideration, after hearing oral argument, a judge of this court who has expressed a view on the papers is persuaded to come to a different view on hearing oral argument, and I have had the benefit of Mr Boyd's oral submissions today on the renewed hearing.
5. So far as the mobility component is concerned, this case turned on the language of section 73(1)(d) of the Social Security and Benefits Act 1992, which grants entitlement to a mobility component at the lower rate where the claimant is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person "most of the time".
6. So far as the facts of the case are concerned, there was little dispute. In its findings the Appeal Tribunal recorded that the appellant suffered chronic abdominal pain, depression, a urinary infection and pain in the left shoulder. Her mobility was limited because of the abdominal pain, but no further issue arises in relation to the extent to which that limited movement impacted her. She could walk 100-200 metres on the flat before the onset of severe discomfort, had slightly lower than normal speed and had a slight limp. The tribunal was of the view that she would not require guidance or supervision from any other person on routes whether familiar or otherwise, in order to take advantage of her limited mobility.
7. The tribunal also accepted her evidence that she experienced panic attacks on average once or twice a week. These could arise anywhere, either on a familiar or an unfamiliar route, with no particular trigger being identifiable. When an attack occurred, she would suffer from sweats and shaking, be afraid of everything, and fearful that she would lose control. She always carried a mobile phone with her so that she could summon help if needed when an attack occurred. She would sit down if possible. Alternatively she would stand against a wall and calm down. This would take about 30 minutes and she would then have to go home rather than continuing with her journey. The tribunal concluded that she was able to cope with her panic attacks and to summon help when required without putting herself or other people in danger. She did not need to be accompanied, or require guidance or supervision, whether in unfamiliar circumstances or otherwise.
8. Needless to say, the Appeal Tribunal was wrong to pay any attention to the question whether the appellant might put herself or other people in danger. That concept comes from a quite different statutory test. In R(DLA)4/01 a tribunal of commissioners headed by the Chief Commissioner Judge K Machin QC made it clear that decision-makers and tribunals must determine questions relating to the lower rate of the mobility component by reference to the criteria set out in section 73(1)(d) and not by reference to any other criteria. It is hardly surprising in those circumstances that permission to appeal to the Social Security Commissioner was granted. In supporting the appeal the Secretary of State suggested that the matter might be remitted to a new tribunal to determine certain further findings of fact.
9. The Social Security Commissioner decided that he could deal with the matter without remitting it for further findings. He said that the tribunal's reasoning might appear to support the argument of the appellant's representative that the tribunal was applying the wrong test in considering whether the claimant needed supervision to avoid danger and return home. The Social Security Commissioner considered that, although it might appear to support that argument, that was only because the tribunal concentrated on the facts of the case rather than on an abstract analysis of the law. He went on:

"The issue was whether the claimant 'cannot' take advantage of the faculty of walking. Her own evidence showed that she could and did. It might well be that once she experienced an anxiety attack, she would benefit from having someone with her. It might be that she would then be able to carry on walking after an attack rather than return home. It might even be that someone with her would prevent an attack occurring. However, none of those possibilities is relevant. All they show is that the claimant's ability to take advantage of the faculty of walking could be enhanced. They do not show that she 'cannot' take advantage of the faculty of walking without guidance or supervision."

10. Mr Boyd has referred me to an unreported decision of a Social Security Commissioner in CDLA42/94. This court has learned to be extremely wary of unreported decisions unless they set out some clear point of principle which for some reason or other has escaped the notice of those who report these cases. Indeed this court has had to issue a Practice Direction limiting the authority which is to be cited to the court if only to get away from this great problem of unreported decisions being produced as if they set out some important new principle. Of course if it is apparent to this court that there are conflicting decisions of Commissioners which are going the rounds although they are not reported, that may well be an occasion when this court will grant permission to appeal, albeit from a specialist appeal tribunal, if only to reconcile any differences.
11. For these reasons I have looked with great care at the unreported decision. Although Mr Boyd submitted that the facts were very similar, in my judgment the facts were completely different. Anything that the Commissioner said on that occasion when he determined to remit the matter for a further hearing (by consent of the parties because mistakes of law had been made below) should be read in the light of the facts which he was considering. That was a case in which the claimant, because of her chronic depression and anxiety, coupled with agoraphobia, could not go out on her own at all. She could only go out with supervision from another, and she suffered panic attacks which caused her to wish to go home even when out with another. The adjudicating officer applied the wrong test, suggesting that the panic attacks were not dangerous. The Appeal Tribunal found that she could not go out by herself, and when accompanied she was still unable to take advantage of the presence of another person. Because of her panic attacks she had to return home within a very short time. The Social Security Commissioner was determined to ensure that when the matter was reheard against that factual background, the fact finder should address the appropriate issues. In those circumstances he set out to give guidance which, as I have said, has not featured in the reports. Part of the guidance is this:

"(d) The claimant meets the conditions of section 73(1)(d) if she is unable to take advantage of the faculty of walking even with guidance or supervision from another person, if the limits imposed on her ability by her physical or mental disablement are such as in their nature could be alleviated by guidance or supervision from another person.

(e) The claimant meets the conditions of section 73(1)(d) if she is only able to take advantage of any faculty of walking with guidance or supervision from another person.

(f) The claimant meets the conditions of section 73(1)(d) although she does not fall within point (d) or (e) all of the time, providing that she falls within one or other of those points most of the time.

(g) The question of what amounts to taking advantage of the faculty of walking is a question of fact for the adjudication officer or the disability appeal tribunal."

12. Mr Boyd has also referred me to (k) which says:

"Supervision, in the context of section 73(1)(d), means accompanying the claimant and at the least monitoring the claimant or the circumstances for signs of a need to intervene so as to prevent the claimant's ability to take advantage of the faculty of walking being compromised. Other, more active, measures may also amount to supervision. The monitoring does not cease to fall within the meaning of supervision by reason only that intervention by the person accompanying the claimant has not in the past actually been necessary."

13. It appears to me that the facts of this case are quite different. This lady, although disabled, is able to go out by herself a limited amount. It is only on the occasions twice a week when she suffers a panic attack that any difficulty arises. This seems par excellence to be a matter to be weighed by the experts, and nobody is more expert in this field than the Social Security Commissioners. Of course like all experts they might make mistakes from time to time, but they have a knowledge completely denied to the judges of this court of the very wide range of cases which may fall under section 73(1)(d). In my judgment, this court should be extremely slow to grant permission to appeal to a further appeal court above the Commissioners. In what is the leading case of Cooke v Secretary of State for Social Security [2002] 3 All ER 279, Hale LJ has set out the reasons why this court should be slow to accept appeals in highly specialist areas of law from specialist appellate bodies.
14. Mr Boyd has set out a number of points on the facts which he suggests should enable him to have yet a further appeal in this case. For instance, he has said, no doubt quite rightly, that he and his instructing solicitors have great expertise in this highly specialist area of law, and he says that on this occasion the appeal tribunal on any showing used the wrong approach.
15. In paragraph 16 of her judgment with which the other members of the court agreed, Hale LJ said:

"16. It is also important that such appeal structures have a link to the ordinary court system, to maintain both their independence of government and the sponsoring department and their fidelity to the relevant general principles of law. But the ordinary courts should approach such cases with an appropriate degree of caution. It is quite probable that on a technical issue of understanding and applying the complex legislation the Social Security Commissioner will have got it right. The Commissioners will know how that particular issue fits into the broader picture of social security principles as a whole. They will be less likely to introduce distortion into those principles. They may be better placed, where it is appropriate, to apply those principles in a purposive construction of the legislation in question. They will also know the realities of tribunal life. All of this should be taken into account by an appellate court when considering whether an appeal will have a real prospect of success.

17. In my view the Court of Appeal should take an appropriately modest view, especially when it has heard only one side of the argument, of how likely it is that the Commissioner will have got it wrong."

16. The law, although it may be difficult to apply in particular cases, is set out with reasonable clarity in the Social Security Act. The Commissioner applied the Act to the facts of this particular case and came to the conclusion that they did not fall within the language of the Act. Bearing in mind the fact that this is a proposed appeal from an expert tribunal and that this is not a case, in my judgment, where there is a problem about decisions of lower tribunals being mutually inconsistent, although I have considered Mr Boyd's arguments carefully (even though I have not mentioned all of them in my judgment, I have taken them all into account and I have given judgment on this occasion at considerably greater length than I normally would do in deference to his careful arguments), but I am afraid I have come to the same conclusion as I came to on paper. This is not a case in which permission to appeal should be given in relation to the walking test.