Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2005] NISSCSC C4_05_06(DLA) (25 October 2005)

Decision No: C4/05-06(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABILITY LIVING ALLOWANCE
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 12 March 2004
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by me, by the claimant (who is represented by his mother), against a decision dated 12 March 2004 of an appeal tribunal sitting at Belfast. The tribunal disallowed the claimant's appeal against a departmental decision dated 24 November1998.
2. The history of the case was that the claimant whose date of birth is 30 March 1987 was born with part of his right arm missing and has mechanical back problems and asthma. On 19 January 1998 he was awarded disability living allowance (DLA) middle rate care component (day needs) and was refused the mobility component of that allowance. By lodgement of a DLA claim form dated 29 September 1998 (received in the Department on 2 October 1998) the claimant sought a review of that award. The form had to be treated as a review application as there was a current DLA award. On a clarification document dated 15 October 1998 the mother confirmed that she wished the Department to look again at the mobility component because there had been a change of circumstances in that the claimant had to get around a lot more, including using public transport and being in public places and that he was now on an extra drug for his asthma. The Department by a decision dated 24 November 1998 (the decision under appeal to the tribunal) refused to review the decision dated 19 January 1998.
3. The mother appealed and there were two tribunal decisions which were each overturned by Commissioners and remitted to differently constituted tribunals. The decision under appeal to me (12 March 2004) is therefore the third tribunal decision on that appeal.
4. The tribunal upheld the Department's decision of 24 November 1998 which refused to review the Department's decision of 19 January 1998. The claimant's grounds for appeal to me were essentially based on contentions that the tribunal had erred in law by:

1. not dealing with the evidence of worsening of back pain and asthma which produced greater mobility needs;

2. not dealing with the contention that the claimant needed guidance or supervision when walking out of doors most of the time. This was stated to be in the form of psychological difficulties in being out of doors due to increased self-consciousness about his missing forearm. This was stated to necessitate encouragement while out of doors and, when combined with the need for supervision to avoid falls and deal with their consequences, to necessitate supervision most of the time when walking out of doors.

5. I held a hearing of the appeal. The claimant did not attend. His mother attended to represent him and Mr Kirk attended to represent the Department. At hearing the mother stated that the claimant was not unable or virtually unable to walk and that she was not seeking the higher rate of the mobility component. This seems to me a proper course of action in light of the evidence about the claimant's walking ability and I therefore say no more about the higher rate of that component. The care component has not formed any part of the appeal to me but, as DLA is one benefit comprising mobility and care components, I have had to deal with it, albeit in a limited manner, as will be shown below.
6. At hearing Mr Kirk conceded that the tribunal had erred in that it had not dealt with the contention that the claimant had developed psychological problems which necessitated encouragement in walking out of doors.
7. I am in agreement with Mr Kirk that the tribunal erred in not dealing with this matter. I have some sympathy with the tribunal in that this was not an issue mentioned in the original grounds for review and it was merely alluded to at the hearing. However, it had also been mentioned several times in the evidence before the tribunal and should have been explored. I set the decision aside for that reason.
8. That makes it unnecessary in this case that I deal with the other basis of appeal. I therefore allude to same only obliquely.
9. The parties were agreed that if I set the tribunal's decision aside they wished me to give the decision which the tribunal should have given. I consider it expedient that I do so, the mother having indicated that she had no additional evidence to furnish. I have been informed by Mr Kirk that the award of middle rate care component has continued and that the next operative departmental decision was on 29 July 2004 which operated from March 2004 and continued the award of middle rate care only. My jurisdiction cannot extend beyond the effective date of that decision ie March 2004.

The disability condition for entitlement to the lower rate of the mobility component is contained in section 72(1)(d) of the Social Security Contributions and Benefits Act (Northern Ireland) 1992 which provides for entitlement to the lower rate where a person can 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 word "cannot" denotes inability not unwillingness, however, strong. It is also possible for a person to have difficulty doing something but still be able to do it.

10. I state at the outset that it appears to me that the claimant has, throughout the period before me, had the actual capacity to walk out of doors on his own without guidance or supervision whether on familiar or unfamiliar routes. He undoubtedly had the physical ability to do so and the mental ability to do so.
11. He may have been reluctant to do so and have had some difficulty doing so but I do not accept that he was actually unable to do so. Unwillingness and refusal is not the same as inability. I am not prepared to conclude that had it been necessary for example, though not solely, in an emergency situation the claimant would always have been able to take advantage of his faculty of walking on familiar or unfamiliar routes without guidance or supervision.
12. However, in accordance with decisions R2/99(DLA), C41/98(DLA) and C38/99(DLA) I must also consider whether it would have been impermissible or unreasonable to expect the claimant to walk out of doors without guidance or supervision most of the time (ignoring his ability to walk alone on familiar routes). It is not enough that it be reasonable to accompany or to supervise him. It must be unreasonable or impermissible for him to walk without guidance or supervision, most of the time. The word in the statute is "cannot". The condition is not satisfied merely because supervision is reasonable. It requires that it be unreasonable to expect or permit the relevant walking without the relevant supervision most of the time and that this be as a result of disablement.
13. The claimant's mother has given evidence, and I accept, that the claimant had from on or around the time when he started secondary school due to increasing self-consciousness because of his missing forearm, a need for encouragement to go out. That I accept. However it is not equivalent to a need for supervision when out walking which is required to satisfy the statutory condition. However, I also accept that he needed encouragement while he was out to encourage him to stay out because at times he became upset and wished to go home when he felt people were looking at him due to his arm. I accept also that he had an increased propensity to fall and difficulty coping with falls which necessitated some additional supervision when out walking. I estimate this date to be around 24 August 1998. Taking those facts into account and given the claimant's young age I accept that from 24 August 1998 it was necessary for him to be accompanied and for someone to keep an eye on him and encourage him most of the time when walking out of doors. I also accept that as at 24 November 1998 that situation was likely to persist for a further six months so that the six months prospective condition was satisfied at that date. I consider that the supervision required was substantially in excess of that required by children of his age who had no disability. Bearing this in mind I award the lower rate of the mobility component from 24 November 1998.
14. I consider, however, that the award should only be for a fixed term. As the claimant became more mature his ability to avoid situations where falls were likely would grow and this was to be expected at 24 November 1998. Additionally and crucially while he might still be at some extra risk from falling, have some difficulty coping with falls, still feel somewhat self-conscious and still have back pain and asthma, the need for him to live as independently as possible and to function independently socially became more pressing. Being able to walk out of doors unsupervised is part of this. That was also foreseeable as at 24 November 1998. That being so I consider that as and from 1 April 2001 it would not have been unreasonable to permit the claimant to take advantage of his faculty of walking out of doors without guidance or supervision most of the time (ignoring any ability to use familiar routes on his own). Indeed it could be said that it would be strongly desirable and reasonable that he do so. Being at some risk and having some difficulties does not necessarily mean that it is unreasonable to permit a person to go out unsupervised. A variety of factors (including the desirability of encouraging independence and social development) can be relevant in forming a judgement in that respect.
15. I therefore award the middle rate of the care component and the lower rate of the mobility component from 24 November 1998 to 31 March 2001 (both dates inclusive). I am aware that the tribunal's award of the middle rate of the care component extended till 30 March 2003 and I do not dispute that the claimant satisfied the conditions for that component till then. However I am prevented by section 71(3) of the Social Security Contributions and Benefits Act (Northern Ireland) 1992 from making fixed term awards of the two components of DLA for different periods. As I do not consider the conditions for the lower rate of the mobility component to be satisfied on and after 1 April 2001 I must terminate my award of the care component at 31 March 2001. This does not mean that the claimant or his mother have to repay benefit paid in respect of the care component for the period after that date and prior to the effective date of the next operative decision ( ie the date in March 2004 when the decision of 29 July 2004 became effective). It does not appear that any repayment of the care component would be appropriate merely because I have terminated the award of the care component due to the strictures of section 71(3).
16. In reaching my determination I have excluded circumstances not obtaining at 24 November 1998, the date of decision under appeal.
17. The claimant wins his appeal.

(signed): M F Brown

Commissioner

25 October 2005