Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C33/97(DLA) (20 February 1998)

 


Decision No: C33/97(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 19 February 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the claimant against a decision of the Disability Appeal Tribunal given on 19 February 1997 to the effect that (1) the claimant is entitled to the low rate care component of Disability Living Allowance from and including 17 August 1995 for a period of 3 years, and (2) the claimant is not entitled to any rate of the mobility component of Disability Living Allowance from and including 17 August 1995. Leave to appeal was granted by the Chairman of the Tribunal on 1 July 1997.
2. The claimant originally made a claim for Disability Living Allowance on 17 August 1995 and stated in particular that he suffered from post-viral fatigue syndrome and clinical depression. On 16 October 1995 the claimant was examined by an Examining Medical Practitioner who found, inter alia, that the main condition causing disability was chronic fatigue syndrome. On 20 October 1995 an Adjudication Officer disallowed the claim from and including 17 August 1995. After a request for review was received on 17 January 1996, the claimant's General Practitioner completed a report on 8 February 1996 and stated that the claimant suffered from myalgic encephalomyelitis (post-viral fatigue syndrome). On 14 March 1996 a different Adjudication Officer reviewed the decision of 20 October 1995 but did not revise it. On 18 June 1996 the claimant appealed to a Disability Appeal Tribunal, and although the appeal was received outside the 3 month time limit, the Chairman decided to admit the appeal.
3. On 19 February 1997 a Tribunal heard the appeal in relation to both the mobility component and the care component of Disability Living Allowance.
4. In relation to the mobility component the Tribunal found the following facts material to its decision:-

"1. Mr N... has a psychiatric condition that is giving him

physical symptoms of lack of energy, muscular aches and pains,

joint pain, headaches, lack of concentration, and as confused

mental state and dizziness.

2. Nevertheless Mr N... can walk 200 yards from the bus stop

to the clinic. He may not do this often but we find that he

can do it. He can walk shorter distances more frequently -

the Examining Medical Practitioner estimated 50-100 yards

in 2-3 minutes with normal gait and satisfactory balance.

In his self-assessment form Mr N... stated 200 metres

in 5 minutes.

3. Mr N... can get to the clinic on his own. It is a long

route and we find that he does not require someone with him

for guidance or supervision when walking out of doors along

unfamiliar routes most of the time.

4. We find that Mr N... may be reassured by the presence of

another person when out walking but we do not find that he

requires someone with him. Nor do we find that the person

accompanying him would provide more than mere reassurance."

5. The Tribunal gave the following reasons for its decision in relation to the mobility component:-

"Mr N... in his self-assessment form stated he could walk 200

metres in 5 minutes. The Examining Medical Practitioner considered

he could walk 50-100 yards and that he had full function of all

limbs. Mr N... told the Tribunal today he could walk from the

bus stop to the clinic - a distance of some 200 yards. We accept

his speed may be slower than normal but we consider Mr N... is

not virtually unable to walk. We looked at Mr N... 's assertion

that he needed someone with him when walking out of doors most of

the time. Whilst we accept that the trip to the clinic is not an

unfamiliar route we consider that it is a long and complicated

journey and Mr N... 's ability to do this journey unaccompanied

(even though it is familiar) indicates an ability to cope alone

with traffic etc and with any feelings of panic he may have.

Accordingly, we do not find that he requires guidance or

supervision when walking out of doors most of the time. We

accept that accompaniment may reassure Mr N... . We do not

accept that he requires it. This view is supported by the

Examining Medical Practitioner report. The Examining Medical

Practitioner considered that no physical support or guidance

or supervision was needed."

6. The claimant appealed to a Commissioner, with leave of the Chairman of the Tribunal. I directed an oral hearing at which the claimant was represented by Mr Les Allamby of the Law Centre (NI), and the Adjudication Officer was represented by Mr Gary Shaw.
7. Mr Allamby submitted that the Tribunal erred in law by misinterpreting the law and making inadequate findings of fact in relation to the mobility component. He specifically submitted that he was taking no objection to the Tribunal's decision in relation to the care component.
8. The Tribunal had written evidence before it from Lord A… MRCPsych, Consultant Psychotherapist, to the effect that the claimant's physical symptoms were a result of psychological difficulties. He diagnosed the claimant as suffering from a form of Hysterical Disorder, which should not in any way be understood as any type of malingering.
9. There was a clear conflict between the various medical opinions in relation to the claimant's medical condition, some evidence pointing to a physical disability, other evidence pointing to a psychological problem, with a considerable overlap between the physical and the psychological.
10. Mr Allamby submitted that the Tribunal had made three errors in law, in considering whether the claimant was entitled to the mobility component (either at the higher or lower rate) of Disability Living Allowance. His submissions can be summarised as follows:-

(1) The Tribunal found specifically that there was no physical disability but, then continued to assess whether or not the claimant was able to walk or was virtually unable to do so. However, the provisions of section 73(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 make it clear that if a claimant is not suffering from physical disablement the inability to walk is not relevant. Such findings have no relevance in deciding whether a claimant is entitled to the higher rate of mobility component. The Tribunal accordingly arrived at its decision that the conditions in section 73(1)(a) were not satisfied because of the ability of the claimant to walk. However, the Tribunal had the responsibility of deciding which portions of the medical evidence satisfied it and, in particular, whether the claimant's condition was a "physical disablement" or not. This it did not do.

(2) The Tribunal incorrectly assessed the claimant's ability to walk as it had failed to take into account the fact that the claimant had made the point, in his self-assessment form and to the Examining Medical Practitioner and to the Tribunal, that the claimant suffers greatly both during and after he walks. The Tribunal did not deal adequately with this issue. Accordingly, if it was appropriate for the Tribunal to consider whether the disablement resulted in the claimant either being unable to walk or being virtually unable to do so, the Tribunal should have considered the impact on the claimant of his walking and not just the ability to do so.

(3) Under section 73(1)(d) the claimant would be entitled to the lower rate of the mobility component if he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use familiar routes he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time. The Tribunal in this case specifically did not disregard the ability he may have had to use familiar routes. It is clear from the Tribunal's reasons for its decision that the wrong test was being applied.

11. Mr Shaw agreed that the Tribunal, in light of its finding that the claimant's physical symptoms derived from a psychiatric condition, should not have made findings in relation to the distance and manner of the claimant's walking ability when assessing whether or not the claimant was entitled to the higher rate of the mobility component. Accordingly the Tribunal did not apply the correct test for the higher rate of the mobility component set out in section 73(1)(a). However, he did point out that if the Tribunal's decision that the claimant's symptoms derived from non-physical origins is correct, the claimant is not entitled to the higher rate of mobility component in any event.
12. In relation to Mr Allamby's second point, Mr Shaw conceded that it might be relevant but also brought my attention to the decision of Mr Commissioner Rice in CM/158/1994 where he stated the following:-

"A sense of proportion has to be adopted in cases of this sort.

Walking a short distance, eg 100 yards is not a very onerous

undertaking, and the fact that a person suffering from ME is

resting to recovery from his previous exertions does not imply

that he is unable to walk or virtually unable to walk during such

a period of rest."

13. Mr Shaw did not take issue with Mr Allamby's third point.
14. There are a number of ways to qualify for the higher rate of the mobility component of disability living allowance. In this case the relevant way is where a claimant is either unable to walk or virtually unable to do so. The basic statutory test is set out in section 73(1)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, which states:-

"Subject to the provisions of this Act, a person shall be entitled

to the mobility component of a disability living allowance for any

period in which he is over the age of 5 and throughout which -

(a) he is suffering from physical disablement such that he is

either unable to walk or virtually unable to do so; ...."

Accordingly the test of entitlement is that the claimant is "suffering from physical disablement such that he is either unable to walk or virtually unable to do so." The matter is complicated by the Regulations which prescribe more specifically two ways in which this requirement can be satisfied. Regulation 12(1) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 states:-

"12-(1) A person is to be taken to satisfy the conditions mentioned

in section 73(1)(a)(unable or virtually unable to walk) only in the

following circumstances -

(a) his physical condition as a whole is such that, without

having regard to circumstances peculiar to that person as

to place of residence or as to place of, or nature of,

employment -

(i) he is unable to walk,

(ii) his ability to walk out of doors is so limited, as

regards the distance over which or the speed at which

or the length of time for which or the manner in which

he can make progress on foot without severe

discomfort, that he is virtually unable to walk, or

(iii) the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious

deterioration in his health; or

(b) he has had both legs amputated at levels which are either through or above the ankle, or he has one leg so amputated

and is without the other leg, or is without both legs, to the

same extent as if it, or they, had been so amputated."

The condition (b) is not relevant in this case.

15. It is clear that, in the present case, the award of the higher rate of the mobility component is restricted to physical disablement (although claimants with a mental disability may satisfy the single test for the lower rate of the mobility component (see below)). There is no doubt that it is difficult in many cases to differentiate between physical and mental disability, and this present case is no exception, but some guidance can be obtained from the authorities.
16. Mr Commissioner Monroe in R(M) 1/88 stated that:-

"It may be that in the last analysis all mental disablement can

be ascribed to physical causes. But, if so, it is obvious that

the Act [referring to the Social Security Act 1975 and in

particular Section 37A(1), the predecessor in Great Britain to

Section 73(1)(a) of the 1992 Northern Ireland Act] on drawing

the distinction between physical and mental disablement did not

mean this last analysis to be resorted to."

This quotation was specifically approved on appeal by the English Court of Appeal in Hanna -v- Secretary of State for Social Services, O'Connor LJ, reported in the Appendix to R(M)1/88.

17. However, the Tribunal is obliged in cases such as the present case to grasp the nettle and decide whether or not the condition suffered by the claimant is a physical one or not, (see the decision of Mr Commissioner May QC in CSDLA/176/94 at paragraph 7), as the medical evidence before it threw that question wide open.
18. The Tribunal in this sort of case is obliged to decide the legal question whether a particular disability is physical or not in light of the medical evidence. In this present case there is conflicting medical evidence. Accordingly it is necessary for a Tribunal to take into account and assess any available medical evidence, and applying the burden of proof (proof on the balance of probabilities) to decide whether this particular claimant has proved his case that the disablement is physical. If not so proved, the Tribunal cannot in this case award the higher component.
19. In light of the specific wording of regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 the adjudicating authorities must ignore where the claimant lives (and also the place and nature of any employment - not relevant in this case). The extent of the claimant's mobility is to be determined by a mechanical test, not by reference to the purpose of the locomotion - see the decision of Mr Commissioner Watson in R(M)3/78 at paragraphs 9 to 12.
20. If a Tribunal or adjudicating authority is satisfied that the disablement is physical, the claimant must go on to satisfy one of the following conditions before a claim can be successful: either -

(1) he must be totally unable to walk (see regulation

12(1)(a)(i));

or

(2) he must be virtually unable to walk (see regulation

12(1)(a)(ii));

or

(3) the exertion required to walk would constitute a risk to

his life or health (see regulation 12(1)(a)(iii)).

21. In this case there is an issue whether the claimant is virtually unable to walk or not. In my view the statutory extension from a total inability to walk to a virtual inability to walk means that a claimant can only be successful if he can only walk to an insignificant extent - see the decision of Mr Commissioner Rice in R(M) 1/91 at paragraph 6.
22. At this stage it is useful to quote from Ogus, Barendt and Wikeley's The Law of Social Security, 4th Edition 1995, (which I have found especially helpful in deciding the relevant legal issues in this case), which sets out at page 192 the proper approach in assessing whether a person is virtually unable to walk as follows:-

"It requires both a qualitative and a quantative assessment

(my emphasis) of the limit of the claimant's ability to

walk out doors without severe discomfort, having regard to

distance, speed, length of time or manner."

It is also necessary for a Tribunal or adjudicating authority to ignore "any extended outdoor walking accomplishment which the claimant could or might attain only with severe discomfort" - see the decision of Mr Commissioner Edwards-Jones in R(M) 1/81. In the present case the Tribunal has not dealt with the effect or impact of the alleged extreme discomfort suffered by the claimant during and after he walks.

23. In this type of case a Tribunal must also consider the effect of exertion as a potential risk to life or health as it must apply the provisions of Article 12(1)(a)(iii). A Tribunal or adjudicating authority must, of course, establish a connection or relationship between the exertion required to walk and the danger to life or risk to health. In the present case there was at least some evidence that would suggest that there might be a connection between the exertion required to walk, for example, to the clinic, and his subsequent stays in bed for periods of about 2 days. This issue was not dealt with appropriately, or at all, by the Tribunal.
24. While qualification for the higher rate of the mobility component of disability living allowance requires physical disability, this restriction does not apply to the lower rate. The way, and the only way, to qualify for the lower rate is to satisfy the adjudicating authorities that 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."

(see Section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992).

25. In the present case, if the Tribunal concluded on proper grounds that the claimant was not physically disabled, it is still relevant to consider mental disability in light of the wording of the sub-section. Psychological problems are mental problems which can cause mental disability. It seems that the Tribunal in the present case did consider section 73(1)(d) as it specifically refers to many of the factors set out in (1)(d). However, in spite of the words of the section - "disregarding any ability he may have to use routes which are familiar to him on his own" - the Tribunal, in its decision making process, clearly did not disregard the fact that the route taken by the claimant to the clinic was familiar.
26. While the Tribunal may have had good reason to conclude that the claimant did not come within the terms of section 73(1)(d) it is clear from its reasoning process that it was not applying the correct test set out in paragraph (d), which potentially assists claimants who can walk and yet need assistance from someone else to enable them so to do.
27. I therefore conclude that the decision of the Tribunal in relation to the mobility component of disability living allowance was erroneous in point of law, as the Tribunal did not deal properly with the issues arising out of the application of section 73(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and regulation 12 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992.
28. The Tribunal should have decided initially whether the claimant was entitled to the higher rate of the mobility component of disability living allowance. Therefore, the Tribunal was required to decide the question, admittedly a difficult one, whether the claimant suffers from a physical disablement or not. If it so decides it has to consider specifically the question whether the claimant is either virtually unable to walk (regulation 12(1)(a)(ii)) or whether the exertion in walking constitutes a risk to his life or health (regulation 12(1)(a)(iii)). If the Tribunal decides these questions in the claimant's favour, an award of the higher rate of the mobility component should be awarded. If not, the Tribunal must then consider whether the claimant is entitled to the lower rate in light of the provisions of section 73(1)(d) which is not governed only by physical disability.
29. Accordingly I allow the appeal and set aside the decision of the Tribunal on the mobility component of disability living allowance as it is erroneous in point of law. I remit the case for rehearing and re-determination, in accordance with the directions in this decision, to an entirely differently constituted Disability Appeal Tribunal. I would anticipate that such a Tribunal would wish to hear additional medical evidence on whether the claimant suffers from a physical disability or not, but that is entirely a matter for the Appeal Tribunal rehearing the case.
30. The words of Mr Commissioner May QC in CSDLA/176/94, a decision concerning Myalgic Encephalomyelitis, are especially relevant to this case so I quote from paragraph 13, as his words therein, and in fact the whole decision, will give considerable guidance and assistance to the freshly constituted Tribunal:-

"13. Having set the decision aside the case must now go before

a fresh tribunal. They will have to consider the claim from the

date of the claim down to the date of the hearing. It will be

open to the claimant to lead such evidence, including fresh

evidence as he sees fit and to make such further submissions in

relation to his case as he sees appropriate. It is as I have

indicated important that the tribunal make a finding not only in

relation to disablement but whether it is of a physical nature

or not. I do not wish to pre-empt the submissions that are made

in the appeal as both the adjudication officer and the claimant

have in the appeal to me referred to a number of authorities

which it has not been necessary for me standing the wholly

inadequate nature of the tribunal's decision for me to consider.

However in relation to whether or not the claimant satisfies

the definition set out in regulation 12(1)(a)(ii) of the 1991

Regulations if the tribunal pose the question asked by Lord

Justice Glidewell in Cassinelli and supply the answers, in the

event that they have made findings that the claimant does suffer

from physical disablement, they ought to be able to provide

themselves with the factual foundation to enable them to

determine that aspect of the appeal. In relation to whether or

not the claimant satisfies the condition set out in section

73(1)(d) the tribunal will no doubt be assisted by what was

said by the Commissioner in CDLA/042/94, which was referred

to by the adjudication officer in his submission to the

Commissioner in this case."

(Signed): J A H Martin

CHIEF COMMISSIONER

20 February 1998