Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC C60/98(DLA) (29 March 1999)

 


Decision No: C60/98(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT (NORTHERN IRELAND) 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) ACT (NORTHERN IRELAND) 1992 DISABILITY LIVING ALLOWANCE
Appeal to the Social Security Commissioner on a question of law from the decision of Londonderry Disability Appeal Tribunal dated 25 November 1997
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant against the decision of a Tribunal to the effect that she was entitled to the middle rate of care component of Disability Living Allowance and she was not entitled to either rate of mobility component of Disability Living Allowance from and including 5 March 1997.
2. On 10 August 1998 a Commissioner accepted the late application for leave to appeal for special reasons. Leave to appeal was granted by a Commissioner on 1 December 1998.
3. On 5 March 1997 the claimant made a claim for Disability Living Allowance stating that she suffered from epilepsy. On 28 April 1997 an Adjudication Officer disallowed the claim from and including 5 March 1997. However on review on 17 July 1997 a different Adjudication Officer reviewed the decision of 28 April 1997 and revised it and awarded the claimant the middle rate care component from 5 March 1997 until 4 March 1999. The claimant then appealed to a Disability Appeal Tribunal.
4. The Tribunal found the following findings of fact material to its decision in relation to both components:-

"1. Appellant suffers from epilepsy. Lives with partner and

children.

2. Takes a fit about 1/2 x fortnight. Sometimes gets warning.

General Practitioner refers to couple partial seizures.

3. Admits no other health problems.

4. Has concerns for children if alone with them when she takes

a fit.

5. Last night-time 'fit' was 3 months ago.

6. Is receiving middle rate care component (supervision day).

Not in issue.

7. Medication just changed to Epilin - 2/3 daily. Tegretal

(previous medication) had side effects when dose increased.

8. No history of status epilepticus.

9. 'Seizure' last up to 5 minutes and rests for ½ hour after.

10. Admits can walk but states she needs someone with her outdoors

for safety. Can walk a reasonable distance in reasonable time,

speed and manner without severe discomfort.

11. Can take advantage of walking faculty on familiar/unfamiliar

routes without guidance/supervision when outdoors most of the

time.

12. The exertion of walking could not cause danger to life or

serious deterioration to health."

The Tribunal gave the following reasons for its decision in relation to the care component:-

"Given the evidence and per our findings and taking frequency and

duration of 'fits' into account the Disability Appeal Tribunal is

satisfied that the appellant does not require prolonged or repeated

attention by night with bodily functions. We are also satisfied on

the evidence that it is not necessary for someone to be awake to

watch over appellant for prolonged periods/frequent intervals to

avoid risk of substantial danger. General Practitioner also confirms

'fits' 1/2 every 2/3 weeks.

We note period of award of middle rate care component and we also

consider this appropriate. With the new medication the condition

may become better controlled. It may also have been the pregnancy

which triggered the condition."

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

"The appellant expressed no difference with physically walking and

in the evidence we are satisfied that she cannot be considered

virtually unable to walk.

Concerns for the safety of the children was expressed if appellant

out alone with them. However, the Disability appeal Tribunal is

satisfied that this type of concern is not covered by the high/low

rate mobility component. We are satisfied that the appellant is not

so severely disabled, physically/mentally that she cannot take

advantage of her walking faculty, without guidance/supervision,

when outdoors most of the time."

The unanimous decision of the Tribunal in relation to the care component was as follows:-

"The appellant is not entitled to high rate care component from and

including 5 March 1997. The middle rate is already in payment and

is not in issue."

The unanimous decision of the Tribunal in relation to the mobility component was as follows:-

"The appellant is not entitled to high/low rate mobility component

from and including 5 March 1997."

5. It is not clear what the claimant's grounds of appeal are, except that she has made the point that on the day of the Tribunal hearing she was nervous and did not explain the full effects of her seizures. However, Mrs Gunning, the Adjudication Officer now involved in this case, has made a helpful submission by letter dated 28 September 1998 which has greatly assisted me in coming to a conclusion in this case.
6. In relation to the point raised by the claimant I conclude that the Tribunal cannot be said to have erred if the claimant did not present her case in such a way as to ensure that the Tribunal fully understood the full effects of her seizures. As Mrs Gunning has submitted, the onus is on the claimant to ensure that she has made the Tribunal fully aware of her condition. In certain circumstances a Tribunal may be required to investigate matters that have been raised in the evidence but, in my view, in the present case the Tribunal cannot be said to have erred in not taking into account details of the claimant's condition which were never put before the Tribunal.
7. In relation to the care component, the Tribunal agreed with the Adjudication Officer that the claimant was entitled to the middle rate on the basis that she required continual supervision throughout the day to avoid substantial danger to herself or others. To obtain the highest rate the claimant had to establish that at night she either needs (i) prolonged or repeated attention in connection with her bodily functions, or (ii) in order to avoid substantial danger to herself or others she requires another person to be awake for a prolonged period at frequent intervals for the purpose of watching over her (Section 72(1)(b) and (c) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992). In light of the evidence available the Tribunal was entitled to come to the conclusion that the claimant had not established either of these requirements and, accordingly, there is no error in my view in the Tribunal's decision in this respect.
8. In relation to the higher rate of the mobility component the claimant does not contend that she is unable or virtually unable to walk. Accordingly the Tribunal in coming to the decision that she was not entitled to the higher rate cannot be said to have been in error.
9. In relation to the lower rate of the mobility component Mrs Gunning made relevant submissions in her letter of 28 September 1998 which, in my view, are worth setting out in full. She stated as follows:-

"Lower Rate The entitlement conditions for receipt of the lower

rate are set out in section 73(1)(d) of the Social Security

Contributions and Benefits (Northern Ireland) Act 1992 [the

Contributions and Benefits Act] 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) ........

(b) ........

(c) ........

(d) he 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.

The meaning of the above section was recently considered by the

Northern Ireland Commissioner on C34/98(DLA). It was held that

to satisfy the conditions of the subsection a claimant must show

that they are either unable or it would be completely unreasonable

to expect them to take advantage of the faculty of walking out of

doors on unfamiliar routes without guidance or supervision from

another person most of the time. The Commissioner set out three

questions which adjudicating authorities should ask themselves

when dealing with entitlement of the lower rate mobility

component. Although that decision was not available at the time

of the tribunal's decision in this case it does not introduce a

new interpretation of section 73(1)(d). It merely sets out the

approach the tribunal should have taken.

While the tribunal found as a fact that Mrs C... could take

advantage of the faculty of walking outdoors on unfamiliar routes

without guidance or supervision most of the time it does not

appear to have considered whether it would be completely

unreasonable for her to do so. I submit that by not addressing

the question the tribunal erred."

10. Mrs Commissioner Brown in C34/98(DLA) stated at paragraph 19 as follows:-

"It therefore seems to me that a claimant, to satisfy the

conditions of section 73(1)(d) of the Act has to show that

by reason of physical or mental disablement, he is either

actually unable or it would be completely unreasonable to

expect him to take advantage of his faculty of walking out

of doors on unfamiliar routes (and routes are not the same

as areas) without guidance or supervision from another person

most of the time while walking. It would not be sufficient to

qualify for it merely because it is reasonable for a person to

be supervised. For something to not be allowable (whether by

the claimant or another) it must be completely unreasonable.

The test of whether or not it is so unreasonable should be an

objective standard ie what a reasonable person would consider

impermissible. Tribunals and other adjudicating authorities,

when dealing with entitlement to the low rate of the mobility

component, should ask themselves the following questions -

(1) Can the claimant walk?

(2) Is the claimant so severely disabled physically or

mentally that, disregarding his ability to use familiar

routes on his own, he is actually unable to walk out of

doors without guidance or supervision most of the time?

(3) Is the claimant so severely disabled physically or mentally

that, disregarding his ability to use familiar routes on

his own, it would be completely unreasonable to expect him

to walk out of doors without guidance or supervision most

of the time?

If the answer to question 1 and either question 2 or question 3

is yes, provided other conditions are satisfied the claimant will

be entitled to lower rate mobility component. If the answer to

question 1 is 'no' there will be no such entitlement and if the

answer to questions 2 and 3 is 'no' there will be no such

entitlement."

11. In my view Mrs Gunning is correct in submitting that the Tribunal has not considered whether it would be completely unreasonable for the claimant to take advantage of the faculty of walking outdoors on unfamiliar routes without guidance or supervision most of the time. I therefore conclude that the Tribunal has erred in point of law by not so doing.
12. However, this conclusion must be viewed in light of the further remarks of Mrs Commissioner Brown in C34/98(DLA) at paragraph 21 where the Commissioner made the following comments which are also relevant to this case:-

"This is not to say that everyone suffering from epilepsy is

entitled to this component. Each case must be decided

individually and obviously the history of previous unsupervised

walking, the existence of warnings and the time expired since the

last attack, indicating the degree of control, are amongst the

factors which may be relevant though this list is not prescriptive

or exhaustive."

13. Mrs Gunning also drew my attention to a further matter which has potential relevance to the decision making process in the present case. She has noted that the claimant expressed concern for the safety of her children if she was to suffer a seizure when she was out alone with them. However, as Mrs Gunning has made clear in her letter dated 28 September 1998, the relevant test is whether the claimant can take advantage of the faculty of walking on her own without the added responsibility of having her children with her. Therefore, in my view, the Tribunal was correct to decide that this type of concern was not covered by the mobility component legislation.
14. In the circumstances I am satisfied that the Tribunal's decision is erroneous in law for the reasons set out at paragraph 11. Accordingly I allow the appeal, set aside the decision of the Tribunal and refer the matter back to a differently constituted Tribunal for a rehearing. This new Tribunal should have regard to what I have said in the course of this decision.

(Signed): J A H Martin

CHIEF COMMISSIONER

29 March 1999