Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1996] NISSCSC C34/96(DLA) (7 January 1997)

 


Decision No: C34/96(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

Application by the claimant for leave to appeal

and appeal to the Social Security Commissioner

on a question of law from the decision of the

Belfast Disability Appeal Tribunal

dated 12 December 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 decided that she was not entitled to either component of the disability living allowance (DLA).
2. Briefly the facts are that claimant made a claim for DLA stating that she suffered from agoraphobia, depression and anxiety on 14 February 1995. In March 1995 an Adjudication Officer disallowed her claim, she sought a review but a different Adjudication Officer reviewed the decision but refused to revise it. Claimant appeal to a DAT. The Tribunal had the advantage of a submission by the Adjudication Officer in which he said:-

"I have considered all the evidence available in this case which

indicates that Miss B... suffers frequent panic attacks when

in crowds or if out on her own. Her panic attacks start after

walking only a short distance and she needs someone with her

to calm her down and keep her relaxed.

In view of the evidence available and in light of the Commissioner's decision quoted above, I concede, with the approval of the Tribunal, that on the balance of probabilities Miss B... would be unable to walk outdoors on unfamiliar routes, for most of the time without supervision.

I submit therefore that Miss B... satisfies the criteria for

an award of the lower rate of the mobility component from

14.2.95.

In view of the nature of Miss B...'s disability I would

respectfully ask the Tribunal to determine the duration of this

award."

3. That Tribunal made findings of fact and gave reasons for its decision as follows:-

Care Component

"Findings

1. Miss B... claimed Disability Living Allowance on 14 February 1995.

2. She is able to prepare a cooked main meal for herself and able to attend to her own bodily functions unaided by day and night and does not require continual supervision by day or any watching over by night to avoid substantial danger."

"Reasons for the Decision

There is no evidence before us to suggest entitlement to any aspect of the Care Component. Mr McE… who is representing Miss B... today concedes that she would not satisfy any of the criteria (which were explained by the Chairman) and we are satisfied that this is the case."

Mobility Component

"Findings

1. Miss B... claimed Disability Living Allowance on 14 February 1995. She suffers from agoraphobia since 1968.

2. Her walking ability is not in any way limited by physical

disablement.

3. She is able to walk short distances of up to approximately

100 yards (e.g. 50 yards to local shops and back again)

unaccompanied. In walking short distances she is sometimes free from panic attacks or if she is subject to them is able to cope on her own, using relaxation techniques.

4. She is not able to walk longer distances unaccompanied as

she is not able in those circumstances to cope with panic

attacks alone."

"Reasons for the Decision

1. It is clear from the medical and other evidence and accepted by Mrs B...'s representative today that her walking ability is not limited by physical disablement and that there is no entitlement to higher Mobility Component from and including the date of claim.

2. Nor is the evidence regarding the limiting factors on Mrs

B...'s walking ability in dispute. We accept that through

having relaxation techniques and with help from Mr McE...

(clinical nurse manager) Miss B... has since 1993 or so been able to walk short distances unaccompanied. Mr McE... gave the example that she would be able to walk to her local shops and back alone (50 yards each way). He also confirmed that she would be unable to walk a greater distance of around 200/300 yards to her local health centre unaccompanied because of panic attacks. We accept this to be the case and accept that Miss B... suffers from a mental illness which limits her lifestyle and also restricts her access to public transport. However, we have to consider whether she is so severely disabled that disregarding any ability she may have to use routes which are familiar to her own, she cannot take advantage of the faculty [of walking] out of doors without guidance or supervision from another person most of the time.

As we were satisfied that she did need guidance or supervision to walk distances of 200 yards or more we felt that the issue before us concerned whether her ability to walk short distances should be disregarded as an "ability to use routes which are familiar to her." The evidence was that she could walk short distances unaccompanied (e.g. the walk to local shops), but not longer distances of 200 yards or more (e.g. the walk to the local health centre). Both routes would be equally familiar and it was only the fact that one was further from home than the other, that rendered it difficult for her. Therefore Mrs B...'s ability to walk the shorter distance arose, not from her familiarity with it but from her ability to control panic attacks unaccompanied on shorter distances. On balance we were not satisfied that it would be appropriate to disregard her ability to walk short distances unaccompanied.

Although we took into consideration the concession made by the Adjudication Officer in the submission we did not in fact feel it to be appropriate in view of our findings, having considered the available evidence.

Given Miss B...'s ability to walk short distances unaccompanied we do not consider that she has shown, on the balance of probabilities that she cannot take advantage of the faculty [of walking] out of doors without guidance or supervision from another person for most of the time."

Claimant then sought leave to appeal against that decision on the grounds that the Tribunal erred in law in that:-

"I do not feel due consideration was given to my depressive

illness, which can made me housebound unless I am accompanied by another person. Neither was the Adjudication Officer's submission given enough attention."

4. At the oral hearing of the appeal before me Mr McE..., who is a clinical nurse manager, argued that claimant's depression was such that she suffers panic attacks and argued that she was not able to walk unsupervised in unfamiliar surroundings due to these panic attacks. Because of her depression she is isolated and needs someone with her all the time to reassure her.
5. Mr Shaw conceded that the Tribunal erred in law with regard to the mobility component. He said that acts of reassurance and guidance are important and that he would accept that she would require support and guidance not only when out walking, but the evidence supported the contention that she required this support and guidance throughout the day. He referred to a written submission which he made upon receiving a copy of the application for leave to appeal and in which he said:-

"The appeal is based on the ground that the tribunal failed to refer

to the claimant's depressive illness, and also that the tribunal

disregarded the concession made by the adjudication officer.

The lower rate mobility test involves consideration of the ability

to take advantage of the faculty of walking on unfamiliar territory.

S73(1)(d) of the Social Security Contributions and Benefits (NI)

Act 1992 stipulates that any ability to use familiar routes must

be disregarded.

The tribunal chairman has recorded in the reasons for decision

On balance we were not satisfied that it would be appropriate to disregard her ability to walk short distances unaccompanied."

This may indicate that the test in S73(1)(d) has been wrongly

applied. Guidance on the lower rate mobility component was

available to the tribunal in decision CDLA/042/94, a copy having

been included in the adjudication officer's submission.

Although the application is based solely on the mobility component. I would comment additionally on the care component. Despite the nature of the disability and evidence that there was a need for a certain amount of reassurance, the tribunal appears to have had no regard to any reassurance requirements when determining entitlement to this component. While the claimant's representative did concede that there was no entitlement to the care component, it does seem likely that this concession was made on the basis of a misunderstanding as to what could be regarded as attention. In the circumstances it may be that the tribunal should have disregarded the concession and given the care component full consideration."

6. I am satisfied that the Tribunal erred in law as the Adjudication Officer has conceded. On that ground alone I allow the appeal.
7. It is now a question of whether or not this is a proper case in which I should exercise the powers vested in me to give the decision which the Tribunal should have given. I have considered all the evidence including the concession made by the Adjudication Officer originally. I have considered the concession made by the Adjudication Officer before me. I have also considered the arguments put forward on behalf of the claimant and those made by Mr Shaw in his written memorandum and I am satisfied that claimant is entitled to the low rate mobility component.
8. Turning then to the care component it is clear that claimant requires reassurance and that this aspect of the matter was completely disregarded by the Tribunal, possibly because of a concession made by the claimant's representative. I am satisfied that the concession by claimant's representative relating to the care component was based upon a misunderstanding as to what could be regarded as attention. I am satisfied that because of claimant's mental condition that there is sufficient evidence to support the contention that she reasonably requires frequent attention throughout the day in connection with her bodily functions.
9. I am satisfied therefore that she is entitled to the middle rate care component and the low rate mobility component from 14 February 1995 for life.

(Signed): C C G McNally

COMMISSIONER

7 January 1997