Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C14/96(DLA) (10 May 1996)

 


Decision No: C14/96(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

Belfast Disability Appeal Tribunal

dated 2 May 1995

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against the decision of a Disability Appeal Tribunal (DAT) which while awarding him the middle rate care component from 11 July 1994 refused him the mobility component at any rate. It is only against the mobility component decision that claimant now appeals.
2. The Tribunal in deciding he was not entitled to the mobility component made the following findings of fact:-

"Appellant is aged 30. The disablement suffered is psoriasis,

depression, pain in the lower back and neck and recent history of

fits, possibly epileptic, in respect of which investigation is

ongoing.

On all the medical evidence and on the appellant's own evidence he

can walk.

We are satisfied from the evidence that he can walk a reasonable

distance, consistent with his own evidence to the Examining Medical

Practitioner on being able to walk approximately 200 metres before

the onset of severe discomfort. He is not therefore virtually unable

to walk.

There is nothing in the evidence to indicate that he requires

supervision or guidance while out of doors in order to avail of

the faculty of walking."

and gave reasons for its decision as:-

"Appellant does not satisfy any of the criteria for the award of

mobility component. On all the evidence he is able to walk and is

not virtually unable to walk and does not require supervision or

guidance when walking out of doors most of the time in order to

avail of the faculty of walking."

The Chairman of the Tribunal granted claimant leave to appeal. His grounds of appeal were set out in a letter dated 4 September 1995 as follows:-

I wish to appeal against the decision not to award the mobility

component to my client. Many of the clients who come to me, after

having made a claim for Disability Living Allowance themselves, have

been found to have misconstrued the question on page 5 of the

self-assessment form about walking distance. Although it does ask

how far the claimant can walk before they "feel severe discomfort",

it is often misinterpreted as how far they can walk at all.

However, in the case of Mr K..., he put down the figure of 400

yards in about 5 minutes, but clearly stated above this, "I can

walk approx 400 yds before I need to stop (claimant's own underline)

with the pain but feel severe discomfort right from the beginning."

Above this, in answer to how he feels when walking, he also stated,

"I feel severe pain immediately on starting to walk and this

gradually increases as I proceed." Again, on page 7, he

re-emphasizes this by saying, "Walking any distance at all gives me

pain which gradually increases until I have to stop." This same

information was given when the EMP examined him; "Able to walk

200m on the flat slowly ... Back pain stops him" and the EMP

simply repeats this figure in his assessment, not seeming to

understand exactly what Mr K... was saying about constant pain.

Therefore he was making it perfectly clear that severe discomfort

is there all the time when walking.

I tried to argue to the Tribunal that as we know that any walking

ability which is done with severe discomfort is to be disregarded,

then the claimant's walking distance is practically nil and is

therefore entitled to the higher rate mobility component. They

are clearly in error to conclude that "his own evidence to the

EMP" was that he was "able to walk approximately 200 metres before

the onset of severe discomfort" when his statement as recorded was

before "Back pain stops" the claimant. I put it to the commissioner

that in such a case as this, surely the ability to walk only

200-400 metres in total reinforces the fact that pain is there and

gradually increasing from rest, so my client has been clear in his

statements of fact and Disability Living Allowance and the Tribunal

have simply failed to pick this up.

If the inconceivable (in my opinion) happens in that the commissioner

does not agree with me in awarding the higher rate in this case,

then I must point out the fact that the Tribunal found that due to

his "recent history of fits, possibly epileptic" and "his depression

and anxiety linked to panic attacks that he requires continual

supervision throughout the day in order to prevent danger to

himself or others." In the light of this, would it not then be

fitting to conclude that this supervision should extend to walking

out of doors as the "depression and anxiety linked to panic attacks"

could lead to a dangerous situation if unaccompanied, especially

on busy roads. Therefore an award of the lower rate mobility

component would be appropriate. If the argument against this is

that Mr K... does not go out as he cannot walk any distance due to

his arthritic pain, then he should already be getting the higher

rate as this argument is based on fact."

3. The Adjudication Officer upon being asked to comment upon the appeal replied as follows:-

"As regards the test for the higher rate, I note that while the

findings recorded certainly imply that severe discomfort does not

occur until approximately 200m has been walked, on a strict

reading they are merely "he can walk a reasonable distance". The

Commissioner may wish to consider whether this is an inadequate

finding. Given that the issue of continual discomfort was raised

in the initial evidence, and again at the hearing, some finding

could be expected as to whether Mr K...'s evidence that he suffers

from discomfort while walking was given consideration, and if the

tribunal accepted that evidence whether the tribunal decided the

discomfort amounted to "severe discomfort".

The appeal alternatively makes the point that because of the decision

on the care component the tribunal should have awarded the lower

rate of the mobility component. There seems to be no question of

the conditions for the lower rate of mobility component being

satisfied merely because a claimant has satisfied the test in

S72(1)(b)(ii). Inasmuch as the application makes this point I

would therefore oppose it, using paragraph 13 of Commissioner Rice's

decision in CDLA/757/1994 in support. I submit further that the

test for supervision in the lower rate of the mobility component

may be different from that in S72(1)(b)(ii). While in CDLA/042/94

there is support for the view that the test may be the same, more

recent decisions (including CDLA/757/1994) have thrown some doubt

on this, in favour of an interpretation that the guidance and

supervision must be required to enable the claimant to take advantage

of the faculty. I submit that from the findings recorded by the

chairman it is evident that the tribunal have adopted the latter

approach. I submit that the tribunal have not erred in law by

taking this line, which appear to reflect the purpose behind the

legislation."

4. I arranged an oral hearing at which claimant appeared in person but was not represented. The Adjudication Officer was represented by Mr Shaw.
5. Both the claimant and Mr Shaw reiterated the remarks in their previous correspondence. Claimant said that he was constantly in pain, even when he was sitting, it caused him pain to walk at all and that as he walked his pain became severe until he was obliged to stop.
6. Mr Shaw said that in his opinion the findings of the Tribunal were inadequate relating to the mobility component because it merely talked about how far he could walk before the onset of severe discomfort and then added that there was nothing in the evidence that he required supervision or guidance while out of doors in order to avail of the facility of walking. In that connection he said that the Tribunal completely ignored the Chairman's comment at the beginning of the hearing in which he recorded:-

"Before the commencement of the hearing, appellant appeared to

suffer a significant panic attack. This necessitated intervention

by both Dr S… and Mrs L… in order to assist him to recover

and to get him settled. This took almost 15 minutes."

I am satisfied that the Tribunal did not properly consider whether claimant needed supervision while out walking or whether he could take advantage of walking in unfamiliar territory. If he had a similar panic attack as he had at the beginning of the Tribunal hearing then it would be unsafe for him to be out walking alone.

7. I take the point made in the grounds of appeal that this depression and anxiety linked to his panic attacks could lead to dangerous situations if unaccompanied, especially on busy roads.
8. I am satisfied therefore that the Tribunal erred in law in not taking proper account of the lower rate mobility and it merely concentrated on the higher rate and the discomfort suffered by claimant when out walking.
9. For that reason I allow the appeal and set aside the decision of the Tribunal. I have considered how to proceed in that event and I am satisfied that there is sufficient evidence for me to make a finding and give a decision which the Tribunal should have given, namely that I am satisfied that because of claimant's severe physical disability and disregarding any ability he may have to use routes which are familiar to him on his own he cannot take advantage of the facility out of doors without guidance or supervision from another person most of the time and that entitles him to the lower rate mobility. The decision which I give now is that the claimant is entitled to the middle rate care component from and including 11 July 1994 and the lower rate mobility component from and including 11 July 1994 for life.

(Signed): C C G McNally

COMMISSIONER

10 May 1996