Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C40/95(DLA) (23 May 1996)

 


C40/95(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner

on a question of law from the decision of the

Disability Appeal Tribunal

dated 15 February 1995

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by a Mr G L Shaw, the Adjudication Officer now concerned with the case, against the decision of the Disability Appeal Tribunal sitting at Newry, whereby it was held that the claimant was entitled to the highest rate of the care component of disability living allowance for the period from 22 September 1993 to 21 September 1996 inclusive, but that she was not entitled to the mobility component.
2. The Tribunal's decision in relation to the claimant's entitlement to the highest rate of the care component was based upon findings of fact which included the following:-

"There is evidence of a propensity for self-abuse and self-harm on

the part of the appellant. In these circumstances we are satisfied

that she requires throughout the day continual supervision from

another person to prevent substantial danger to herself and that

she also requires at night another person to be awake at frequent

intervals to watch over her in order to avoid substantial danger

to herself."

The comparable findings in relation to the mobility component were:-

"As regards supervision or guidance while walking out of doors

appellant has been awarded care component at the highest rate

on the grounds inter alia that she requires continual supervision

from another person to prevent substantial danger to herself.

In as much as she may require supervision when walking out of

doors it would be for the purpose of preventing danger to

herself and this is already catered for in the care award granted.

She is otherwise aware of common dangers."

The Tribunal's reasons for the decision to refuse the mobility component were:-

"On the weight of all the evidence the appellant is able to walk

and is not virtually unable to walk. She does not satisfy the

criteria for the award of mobility component at the higher rate.

With regard to the lower rate in as much as she may require some

supervision when walking out of doors it is in the nature of the

continual supervision from another person to prevent substantial

danger to herself which has already been catered for in the care

award which has been made. It is not a situation where she cannot

take advantage of the faculty out of doors without guidance or

supervision from another person most of the time."

3. The grounds of Mr Shaw's appeal to the Commissioner are:-

"The tribunal erred in taking account of entitlement to the care

component when deciding whether to award lower rate mobility

component. The entitlement conditions for lower rate mobility

component are set out in S73(1)(d) of the Social Security

Contributions and Benefits (NI) Act 1992, and are in no way

dependent on those for the care component which are set out

separately in S72."

Not surprisingly, there has been no response from the claimant to the usual invitation to submit written observations on the appeal.

4. Having considered this matter I accept that the Appeal Tribunal erred in law in failing to consider the question of the claimant's entitlement to the mobility component of disability living allowance in isolation from their consideration of her entitlement to the care component. Although there are some indications that this may not have been their real intention, the Tribunal's findings of fact and reasons for decision convey the clear impression that, because a need for supervision had been taken into account in arriving at the decision on the award of the care component, it should be disregarded in relation to the mobility component. To that extent their decision was erroneous in law.
5. Although it might be said that the error is an obvious one, the question of the effect on both components of a finding of a claimant's need for continual supervision does present difficulty. In this instance the supervision which the claimant requires arises from her propensity for self-abuse and self-harm and is considered to be necessary, "in order to avoid substantial danger to herself". As the GB Commissioner pointed out in Decision No: CDLA/757/1995, section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 is not immediately concerned with supervision of that nature. The question is whether supervision is required to enable the claimant to walk out of doors over unfamiliar routes for most of the time, where otherwise she could not do so - as for example might be the case if she suffered from agoraphobia. In this instance the final sentence of the Tribunal's decision suggests that they may have been inching their way towards the application of the proper test. Unfortunately, they had already expressed the opinion that a need for supervision when walking out of doors, which had already been taken into account in relation to the care component, should in effect be disregarded in relation to the mobility component. That was not a correct approach and, as I have indicated, I accept that the Tribunal's decision was in that respect erroneous in point of law. I accordingly allow this appeal, set aside the Tribunal's decision and refer the case for determination by another Tribunal. At the further hearing, at which stage all issues will again be open, the new Tribunal should have regard to the decision of the GB Commissioner in CDLA/757/1995, and in particular to paragraphs 11, 12 and 13 thereof. As Mr Shaw has pointed out, the conditions of entitlement to the care and the mobility components of disability living allowance must be considered separately; but it by no means follows that a need for continual supervision throughout the day in order to avoid substantial danger to the claimant necessarily qualifies her for both components.

(Signed): R R Chambers

CHIEF COMMISSIONER

23 May 1996