Northern Ireland - Social Security and Child Support Commissioners' Decisions

CW-v-Department for Social Development (DLA) [2011] NICom 193

Decision No:  C48/09-10(DLA)(T)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABILITY LIVING ALLOWANCE

 

 

Appeal to a Tribunal of Commissioners

on a question of law from a Tribunal's decision

dated 2 July 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    The decision of the appeal tribunal dated 2 July 2009 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on us by Article 15(8) of the Social Security (Northern Ireland) Order 1998, we set aside the decision appealed against.

 

2.    For further reasons set out below, we are unable to exercise the power conferred on us by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there is detailed evidence relevant to the issues arising in the appeal, including medical evidence, to which we have not had access.  An appeal tribunal which has a medically qualified panel member is best placed to assess medical evidence and address medical issues arising in an appeal.  Further, there may be further findings of fact which require to be made and we do not consider it expedient to make such findings at this stage of the proceedings.  Accordingly, we refer the case to a differently constituted appeal tribunal for re-determination.

 

3.    In referring the case to a differently constituted appeal tribunal for re-determination, we direct that the appeal tribunal takes into account the guidance set out below.

 

4.    It is imperative that the appellant notes that while the decision of the appeal tribunal has been set aside, the issue of his entitlement to disability living allowance (DLA) remains to be determined by another appeal tribunal.  In accordance with the guidance set out below, the newly constituted appeal tribunal will be undertaking its own determination of the legal and factual issues which arise in the appeal.

 

       Background

 

5.    On 10 November 2008 a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 22 February 2009, on a renewal claim.  There had been a previous fixed period award of the lower rate of the mobility component and the middle rate of the care component of DLA from 22 February 2001 to 21 February 2009.  On 17 February 2009 the decision dated 10 November 2008 was looked at again but was not changed.  An appeal against the decision dated 10 February 2008 was received in the Department on 26 February 2009.

 

6.    The appeal tribunal hearing took place on 2 July 2009.  The appellant was present and was represented by Mr John Curran of the Citizens Advice Bureau.  He was also accompanied by two other members of his family. The Department was not represented.  The appeal tribunal allowed the appeal in part making an award of entitlement to the lowest rate of the care component of DLA from 22 February 2009 to 21 February 2011.  The appeal tribunal disallowed entitlement to the mobility component of DLA.  Its reasoning is set out below but, in summary, it considered that the appellant’s reluctance to leave his home, because of a phobia about dogs, was such that he would not be able to benefit from enhanced facilities for locomotion which an award would otherwise provide.

 

7.    On 5 October 2009 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 13 October 2009, the application for leave to appeal was granted by the legally qualified panel member (LQPM).  In granting leave to appeal, the point of law identified by the LQPM was:

 

‘… Tribunal would appreciate Commissioner’s guidance as to whether it has correctly applied s.73(8).’

 

8.    The reference to ‘s.73(8)’ is to section 73(8) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  Section 73(8) provides that:

 

‘A person shall not be entitled to the mobility component for a period unless during most of that period his condition will be such as permits him from time to time to benefit from enhanced facilities for locomotion.’

 

9.    The significance of that section will be explored in more detail below.  For completeness, and because we wish to refer to certain decisions given by Commissioners in Great Britain, we add that this wording is identical to the wording of section 73(8) of the Social Security Contributions and Benefits Act 1992.

 

       Proceedings before the Social Security Commissioner

 

10.   On 13 November 2009 the appeal was received in the Office of the Social Security and Child Support Commissioners (OSSC).  On 25 January 2010 observations on the appeal were sought from Decision Making Services (DMS).  On 25 February 2010 the observations from DMS were received.  Observations were shared with the appellant and his representative on 11 March 2010.  On 10 May 2010, the Chief Commissioner directed that the appeal should be dealt with by a Tribunal of Commissioners.  On 1 December 2010 a Social Security Commissioner directed an oral hearing of the appeal.

 

11.   The oral hearing of the appeal took place on 18 January 2011.  At the oral hearing, the appellant was represented by Mr John Curran from the Citizens Advice Bureau, and the Department was represented by Mr Jim Hinton of the DMS section.  Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

 

       The submissions of the parties

 

12.   In the original application for leave to appeal to the LQPM, Mr Curran submitted that the decision of the appeal tribunal was in error of law on the basis that the appeal tribunal:

 

‘… erred in law by misapplying section 73(8) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  The Tribunal failed to have regard to the relevant case law in particular R(M) 3/83 a leading decision on the application of this provision.’

 

13.   The reference to ‘R(M) 3/83’ should in fact be to ‘R(M) 2/83’, a decision of a Social Security Commissioner in Great Britain, but this error was rectified by Mr Curran by the time the appeal was sent to OSSC.  With the appeal, the appellant re-submitted that the appeal tribunal had failed to have regard to the guidance at paragraphs 11 to 13 of R(M) 2/83, and added that:

 

‘While it is accepted that (the claimant) requires substantial prompting and encouragement to cope out of doors we feel our client would indeed benefit from enhanced facilities for locomotion in particular to attend therapy sessions which are essential to his recovery.’

 

14.   In written observations on the appeal, Mr Hinton began by making reference to the decision of Commissioner Morcom in R(M) 2/83 and the comments of Commissioner Angus in Great Britain in CDLA/2364/95.  Applying those decisions to the instant case, Mr Hinton submitted that:

 

‘As was held by Commissioner Morcom it is a question of fact and degree for a tribunal to consider whether in any particular case a person cannot benefit from time to time (of the facilities of enhanced locomotion).  Where in such a case the tribunal has set out it findings on the evidence giving its reasons it would not be possible to upset such a tribunal’s findings of fact unless no reasonable body acting judicially and properly instructed on the law could have reached the conclusion.

 

In this case the tribunal accepted that (the claimant) is driven to medical appointments and these appointments are occasional.  Occasional by definition means from time to time.  In light of the liberal meaning that Commissioner Morcom suggests should be put [sic] the term ‘benefit from time to time’ it is difficult to envisage that (the claimant) would not benefit from the enhanced facilities of locomotion.  It is therefore my submission that the tribunal has erred in its application of section 73(8) of the 1992 Act.’

 

15.   Mr Hinton went on to submit, however, that had the appeal tribunal correctly found that the appellant could benefit from enhanced facilities for locomotion, it would have been obliged to consider section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.

 

16.   Mr Hinton submitted that:

 

‘(The claimant) has stated that he cannot go out of doors because he has a phobia of dogs and whilst there is other evidence that would cast a doubt on this the tribunal has accepted “on balance” that he only goes out to fulfil medical appointments and on these occasions he is driven to the door.

 

There is a divergence of views of Commissioners in relation to cases where a person cannot take advantage of the faculty of walking even with the help of guidance or supervision.’

 

17.   Mr Hinton then undertook an analysis of the decision of Commissioner Brown in C67/98, and of the decisions of the Social Security Commissioners in CDLA/2364/1995, CDLA/042/1994, and CSDLA/12/2003.

 

18.   Mr Hinton concluded that:

 

‘In considering the above case law it is the Department’s view that the decisions of Commissioners Brown and Mesher should be followed on the basis of Commissioner Mesher’s reasoning in paragraph 15 of CDLA 042/94 which has been subsequently endorsed by Commissioner Brown in C67/98(DLA).’

 

19.   In the case summary prepared for the oral hearing of the appeal, Mr Curran referred to the written observations made by Mr Hinton and agreed that the relevant decisions of Commissioner Mesher in CDLA/042/1994 and Commissioner Brown in C67/(DLA) should be followed.  In the Department’s case summary Mr Hinton resiled, in two respects, from the position set out in the original written observations on the appeal.  Firstly, he was of the view that the views of the Court of Appeal in Mongan v Department for Social Development ([2005] NICA 16, reported as R3/05(DLA)) should be preferred to those of Commissioner Mesher in CDLA/042/1994 and Commissioner Brown in C67/98.  Secondly, Mr Hinton submitted that he would now accept that the appeal tribunal did not err in how it analysed section 73(8) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.

 

       What did the appeal tribunal decide in respect of the mobility component of DLA?

 

20.   After reviewing the background to the appeal, and the evidence which was before it, the appeal tribunal concluded that:

 

‘The higher rate mobility component was not in issue.  Having carefully considered all of the evidence, Tribunal accepted, on balance, that the evidence indicated considerable problems going out of doors (although the Psychiatrist in his report had expressed the view that no help was needed) and it appeared that the only times he would go out were to fulfill medical appointments where he was taken to the door.  Tribunal considered Section 73(8) of the Social Security Contributions and Benefits (NI) Act 1992 which provides:

 

A person shall not be entitled to the mobility component for a period unless during most of that period his condition will be such as permits him from time to time to benefit from enhanced facilities for locomotion.

 

and took the view, on the evidence, that Claimant’s condition was such that he was not able to take advantage of ‘enhanced facilities for locomotion’ as envisaged by the legislation and was therefore not entitled to the mobility component at either rate.  It felt the evidence that he would only go out occasionally to the Surgery and was driven to the door was not sufficient to constitute taking benefit of such facilities during most of the period.’

 

       Why was the decision of the appeal tribunal in error of law?

 

21.   In a written submission which was before the appeal tribunal, Mr Curran submitted that entitlement to the higher rate of the mobility component was not at issue in the appeal but submitted that the appellant should have an entitlement to the lower rate of the mobility component.

 

22.   The conditions of entitlement to the lower rate of the mobility component of DLA are to be found in section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  Section 73(1)(d) provides that:

 

‘73(1) 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 relevant age and throughout which—

 

…

 

(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.’

 

23.   In deciding whether there is an entitlement to the mobility component of DLA, consideration also has to be given to section 73(8) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.  We say entitlement to the mobility component, as section 73(8) has the potential to apply to both the lower and the higher rates of the mobility component.  We have already set out the wording of section 73(8).

 

24.   In the instant case, the issues arising concern the context of both section 73(1)(d) and section 73(8) and the relationship between them.

 

25.   The first duty of the appeal tribunal was to consider whether the appellant satisfied the conditions of entitlement to the lower rate of the mobility component of DLA as set out in section 73(1)(d).  That necessitated the assessment of the evidence relevant to the issue of entitlement, the making of relevant findings in fact, and the provision of reasons that would adequately explain the appeal tribunal’s conclusions with respect to entitlement.  Looking at the statement of reasons for the appeal tribunal’s decision, it is not clear that the appeal tribunal has fulfilled that duty.  As was noted above, the appeal tribunal has stated that:

 

‘… Having carefully considered all of the evidence, Tribunal accepted, on balance, that the evidence indicated considerable problems going out of doors (although the Psychiatrist in his report had expressed the view that no help was needed) and it appeared that the only times he would go out were to fulfill medical appointments where he was taken to the door.’

 

26.   It is not clear whether this is a conclusion that the conditions of entitlement set out in section 73(1)(d) are or are not met.  One possible conclusion is that that appeal tribunal has determined that the conditions in section 73(1)(d) are met but that the entitlement to the mobility component gained by the satisfaction of those conditions is negated by the exclusion provided for in section 73(8).  It seems to us, however, that the appeal tribunal has concentrated its efforts on deciding whether the exclusion provided for in section 73(8) was applicable without, firstly, considering whether the basic conditions of entitlement to the mobility component were met.

 

27.   We have come to the view that the appeal tribunal’s application of section 73(8) was problematic, for the following reasons.

 

28.   In R(M) 2/83, in a case in Great Britain, Commissioner Morcom considered a similar worded provision in relation to mobility allowance.  Section 22 of the Social Security Pensions Act 1975 interpolated section 37A into the Social Security Act 1975. Section 37A(2)(b) provided that:

 

(2) … a person qualifies for the allowance only if –

 

…

 

(b) during most of the period his condition will be such as permits him from time to time to benefit from enhanced facilities for locomotion.’

 

29.   In paragraph 11, Commissioner Morcom referred to the following extract from the Law of Social Security, Ogus and Barendt (2^nd edition, 1982), at page 184:

 

‘The allowance is not available to all severely disabled persons.  Legislation provides that it is payable only where the invalid’s condition is ‘such as permits him from time to time to benefit from enhanced facilities for locomotion’.  This obviously excludes human vegetables and those whom it is unsafe to move but it is arguable that of the remainder there will be few who will not receive some benefit from the occasional sortie, and it is not easy to draw a line between the deserving and the undeserving except on some arbitrary basis.’

 

30.   Commissioner Morcom goes on to state:

 

“…I think that the above extract from the current Edition of Ogus and Barendt sets the test out correctly.  The word “benefit” is a wide one and in addition the statutory provisions contain the words “from time to time”.  A person would come within the statutory provisions although he was not capable of benefiting at all times but merely of benefiting “from time to time”.  ….It is of course a question of fact and degree for the MAT to consider whether in any particular case a person cannot benefit from time to time.  Where in such a case the tribunal has set out its findings on the evidence giving its reasons it would not be possible to upset such a tribunal’s findings of fact unless no reasonable body acting judicially and properly instructed on the law could have reached the conclusion of which it arrived.

 

However as indicated above I think that the word “benefit” particularly in the context of “from time to time” merits a liberal interpretation involving mental stimulation from being able to get out and about without the claimant necessarily appreciating himself that he does derive mental benefit.  Locomotion is of course not limited to walking.’

 

31.   In CDLA/2142/2005, in another case in Great Britain, Commissioner Turnbull stated, at paragraphs 8 to 11:

 

‘8.       In my view the Tribunal was right to regard the law as having been correctly set out in CSDLA/12/03, and in particular in para. 31 of that decision: “the statutory wording does not encompass the relatively rare claimant who, while he or she could benefit from other forms of transport, through disablement will not walk out of doors even with guidance or supervision.”

 

9.       Pursuant to my direction in this appeal the Claimant’s representative has given further details as to what walking the Claimant could be persuaded to do at the date of the Secretary of State’s decision, and as to the distances and time involved.  According to those details (pages 131 to 133), it was limited to going to the front garden gate (a distance of 12-15 feet) with refuse twice a week and into the rear garden (approximately 50 feet long) two or three times a week “for a longer period – the claimant would be encouraged to stay out for as long as possible”.  The Claimant would venture out only if she was accompanied by a family member and if no-one else was in the vicinity.

 

10.     Section 73(8) requires that a claimant’s condition be such as permits him to “benefit from” enhanced facilities for locomotion.  The words “benefit from” are in my judgment important in this context.  It seems to me that s.73(1)(d) and s.73(8) should be construed against the background that someone such as the Claimant is likely to derive benefit, both mentally and physically, from walking outside to any extent.  If guidance or supervision enables an agoraphobic claimant to do any walking out of doors which she would not otherwise be able to do, that should in my judgment be held to satisfy s.73(8), unless the amount of walking is so minimal, either in distance, time or frequency, that it should be disregarded because it cannot realistically be of any appreciable benefit to the claimant.

 

11.     In my judgment it cannot be said, in the context of s.73(1)(d), that the activities described in para. 9 above necessarily involved insufficient walking, or were of insufficient benefit to the Claimant, to constitute benefiting from enhanced facilities for locomotion within the meaning of s.73(8).  I would say the same even if the only walking had been (as the Tribunal found) to the front garden gate.’

 

32.   In another Great Britain case, CDLA/1639/2006, Commissioner Jacobs considered the Great Britain equivalent to section 73(8), in the context of the facts arising in that case.  In paragraphs 22 and 23, he stated:

 

‘The tribunal also went wrong in law by failing to consider section 73(8).  It found that the claimant was affected by his migraines for 80 hours a week.  Assume for the moment that he was virtually unable to walk.  The tribunal awarded a disability living allowance for three years.  Would the claimant be able for most of that time to benefit from enhanced facilities for locomotion?  He would be able to walk when he was not affected by his migraines.  But that is not enough to satisfy section 73(8).  When he was not affected, he would not need enhanced facilities for locomotion.  In the case of conditions that are only intermittently disabling, the focus for section 73(8) is on the time when the claimant is experiencing the disablement.  It is only during those periods that there would be any need for enhanced facilities for locomotion.  In this case, the claimant was disabled by his migraines.  At those times, by his own evidence, he was severely incapacitated and sometimes confined to bed.  On this evidence, he would not benefit from enhanced facilities for locomotion, because he could not go anywhere.’

 

33.   In CDLA/544/2009, in Great Britain, Judge Wikeley reviewed many of the authorities on Section 73(8).  He stated, at paragraphs 23 to 37:

 

‘Did the tribunal apply section 73(8) of the 1992 Act correctly?

 

23.     The tribunal agreed with the initial decision maker that the claimant was not entitled to the mobility component because his condition was not such as to permit him “from time to time to benefit from enhanced facilities for locomotion” (although this requirement now appears in section 73(8) of the 1992 Act, it previously appeared in section 37A(2)(b) of the Social Security Act l975). In particular, the tribunal’s Statement of Reasons asserts that: “the appellant could not reasonably be persuaded to go out of doors by anybody including his wife”.

 

24.     This last phrase is undoubtedly a finding of fact.  It also implies that there was some mental health factor that prevented the claimant from going outside.  However, as Mrs Dean rightly submits, there was actually no evidence before the tribunal to justify this finding of fact, which amounts to an error of law in itself (see R(A) 1/72, paragraph 4).

 

25.     The tribunal also relied on the two Social Security Commissioners’ decisions in CDLA/2142/2005 and CSDLA/12/2003.  However, it is important to note that these decisions were both concerned with entitlement to the lower rate mobility component under section 73(1)(d) of the 1992 Act (e.g. because of agoraphobia).  The same is true of the more recent decision in CDLA/496/2008. The Commissioners’ observations in those decisions on the scope of section 73(8) need to be understood in that context.  In the present case it does not seem to have been suggested that the claimant’s condition is other than physical in nature.

 

26.     As Mrs Dean submits, the tribunal seemed to believe that the claimant’s inability to venture outdoors “was the claimant’s choice and that he was mentally unable to leave his room.  In my submission the only thing that prevented the claimant from leaving his room was his lack of physical strength.  However, they failed to take into account the fact that if the claimant was physically helped down the stairs and into a wheelchair then this would overcome section 73(8).”

 

27.     The same point is effectively put, albeit rather more graphically, by the claimant’s wife in her submission: “And yes if he had a man that could physically carry him down the stairs, and into a wheelchair, then yes I would be able to take him out in the car as there is nothing mentally stopping him from going outside or into a car”.  She also points out that her husband does not fall within the various categories mentioned in paragraph 61414 of Chapter 61 of Volume 10 of the Decision Makers Guide.  That official guidance cites reported decision R(M) 2/83 in this context.

 

28.     However, in reaching its own decision, the tribunal in this case failed to have regard to that leading case on the application of section 73(8).  R(M) 2/83 concerned a young girl with epilepsy, poor eyesight and severe learning difficulties.  The medical appeal tribunal concluded that she was not entitled to the former mobility allowance as her condition was such that she would not be able to benefit from enhanced facilities (for locomotion).

 

29.     Allowing the appeal, Mr Commissioner Morcom held that there was no evidence before the medical appeal tribunal that the girl would be unable to benefit from enhanced facilities for locomotion, and the tribunal had failed to give its reasons for reaching that conclusion.  In doing so, the learned Commissioner approved the following passage from the second edition of The Law of Social Security by A. Ogus and E. Barendt (1982) at page 184:

 

“The allowance is not available to all severely disabled persons.  Legislation provides that it is payable only where the invalid’s condition is ‘such as permits him from time to time to benefit from enhanced facilities for locomotion’.  This obviously excludes human vegetables and those whom it is unsafe to move, but it is arguable that of the remainder there will be few who will not receive some benefit from the occasional sortie, and it is not easy to draw a line between the deserving and the undeserving except on some arbitrary basis.”

 

30.     In R(M) 1/83 Mr Commissioner Morcom concluded that this extract “sets the test out correctly”, although adding that he “would add a further category of excluded persons, that is persons so severely mentally deranged that a high degree of supervision and restraint would be required to prevent them either injuring themselves or others” (at paragraph 11).  The learned Commissioner concluded:

 

          “…the word ‘benefit’ particularly in the context of ‘from time to time’ merits a liberal interpretation involving mental stimulation from being able to get out and about without the claimant necessarily appreciating himself that he does derive mental benefit.  Locomotion is of course not confined to walking.”

 

31.     The passage cited from the second edition of The Law of Social Security now appears in a rather shorter treatment of the relevant statutory provision in the current fifth edition of that text at page 693 (with the substitution of “patients in a persistent vegetative state” for the now dated term used in the second edition).  However, it is arguable that Mr Commissioner Morcom’s further example relating to the category of “severely mentally deranged” persons itself needs to be reconsidered. 

 

32.     It is not just that the language used would now be considered inappropriate.  It is that when the former mobility allowance was transformed into the higher rate of the mobility component of disability living allowance in 1991, Parliament took the opportunity to extend entitlement to those persons who are “severely mentally impaired”, display “severe behavioural problems”, and qualify for the highest rate of the care component (see section 73(1)(c) and (3) of the 1992 Act and regulation 12(5) and (6) of the 1991 Regulations).  That legislative extension of entitlement casts some considerable doubt on the exclusion of that extra category of individuals identified by Mr Commissioner Morcom.

 

33.     Be that as it may, the general approach set out in The Law of Social Security and approved in R(M) 2/83 happens to be consistent with assurances given by ministers to Parliament when the precursor of section 78(3) was debated.  At the time the minister, Mr Alf Morris MP, stated (Hansard, House of Commons Debates, Vol. 893 col. 468, 11 June 1975):

 

          "The purpose of the clause is to provide for the payment of a mobility allowance … to severely disabled people who are unable to walk, or are virtually unable to do so, and who are likely to remain so severely handicapped for at least a year. It will be available to disabled people over the age of five but under pension age. An award will not depend - as the present vehicle service depends - upon ability to drive a car. The person receiving the benefit will be able to use it in any way he chooses as being the most suitable to help with his mobility problems.

 

By definition of its title, the mobility allowance will not be payable to someone who is totally incapable of mobility. Here we have in mind, for example, someone who for medical reasons should not be moved or who is in a coma and has no appreciation of his surroundings. We all know that severe head injuries caused by a road accident may mean, in rare and tragic cases, that someone spends the rest of his life, such as it is, in a coma and dies without recovering consciousness. It would clearly be inappropriate to pay such a person a mobility allowance. Equally, it is not the intention that a severely disabled person who can appreciate a change of surroundings but for whom outings are infrequent - and expensive - should be disqualified. We fully accept also that quite severely mentally handicapped people can in their own way enjoy mobility which has been previously denied to them by their additional loco-motor disabilities."

 

34.     The liberal construction of the notion of being able “to benefit from enhanced facilities for locomotion” has also been confirmed by subsequent case law.  In Clarke v South Yorkshire Transport Ltd [1998] EWCA Civ 503, a decision of the Court of Appeal concerning the assessment of personal injuries damages, one of the issues was the extent to which the plaintiff’s receipt of mobility allowance should be taken into account. Mantell LJ rejected a narrow reading of what was then section 37A(2)(b), and is now section 73(8), noting that “The facilities may take a variety of forms and would certainly include whatever outings are provided for her for those who care for her.”

 

35.     The tribunal’s failure to adopt the construction of section 73(8) identified in R(M) 2/83 and its reliance instead on, and misapplication of, the two unreported decisions involving the interaction of section 73(8) with the lower rate mobility component represents a further error of law.  As Mr Commissioner (now Judge) Rowland explained in R(DLA) 6/03, “Only if the claimant cannot benefit from any enhanced facilities for locomotion does section 73(8) come into play” (at paragraph 4).

 

36.     There is one further matter to note in relation to section 73(8).  The claimant’s case is that he is not excluded by section 73(8) of the 1992 Act because his wife routinely uses the car to collect prescriptions and on occasion emergency medical supplies for him.  Mrs Dean, for the Secretary of State, argues that this is to stretch the boundary of the statutory wording impermissibly and is not within the intention of the legislature.

 

37.     I agree with Mrs Dean’s submission on this point. The reference to “benefit” in section 73(8) of the 1992 Act must involve some direct benefit, however broadly construed, to the claimant’s physical or mental health by the very act of the claimant himself or herself being assisted in venturing outside. As Mr Commissioner Morcom explained, the word benefit “merits a liberal interpretation involving mental stimulation from [the claimant] being able to get out and about…  Locomotion is of course not confined to walking.”’

 

34.   What emerges from that analysis is the requirement for careful assessment of the evidence in connection with a claimant’s ability to benefit from enhanced facilities for locomotion, the making of clear findings in fact in connection with that issue and the provision of reasons which are adequate to explain the appeal tribunal’s conclusions. More significantly, the appellate authorities favour a liberal interpretation of the relevant provision, such broad-mindedness meeting the legislative policy intention.

 

35.   We would add to the analysis of section 73(8) (and its parallel and equivalently-worded provision in Great Britain), that the phrases, ‘… for a period …’ and ‘… during most of that period …’ should be interpreted according to the following principles.

 

36.   Section 73(1) provides that a person shall be entitled to the mobility component of DLA for any period during which the other conditions in section 73(1) are satisfied. Section 73(8) provides that a person shall not be entitled to the mobility component for a period unless during that period the condition in section 73(8) is not satisfied. The meaning of the phrase ‘… any period ..’ in the parallel section 73(1) of the Social Security Contributions and Benefits Act 1992 in Great Britain, was considered by Commissioner Rowland in CDLA/496/2008. At paragraph 11 of his decision he stated:

 

‘…But section 73(1) allows an award to be made at the higher rate only if the claimant is unable to walk or virtually unable to do so “throughout” the period of the award.  It is common for conditions to fluctuate and, in Secretary of State for Work and Pensions v. Moyna [2003] UKHL 44; [2003] 1 WLR 1929 (also reported as R(DLA) 7/03), the House of Lords considered the meaning of the word “throughout” in the similar context of section 72, relating to the care component to which a person may be entitled if, among other grounds, he is incapable of preparing a cooked main meal for himself.  Lord Hoffman said –

 

“What does this mean?  One possible construction is that if there was a single occasion during the period when a remission in his disability would have allowed him to cook a meal, it cannot be said that throughout the period he was unable to do so.  But the Secretary of State does not contend for this construction and I do not think that it would be right.  That is not because one occasion is de minimis but because the test does not in my opinion function at that day to day level.  It involves looking at the whole period and saying whether, in a more general sense, the person can fairly be described as a person who is unable to cook a meal.  It is an exercise in judgment rather than an arithmetical calculation of frequency.”’

 

37.   We accept and adopt the reasoning of Commissioner Rowland, and agree that his approach extends to the interpretation of the expressions “for a period” and “during most of that period” in section 73(8) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.

 

38.   Returning to the instant case, it seems to us that the appeal tribunal has erred in not recognising and adopting the liberal approach to the interpretation of section 73(8), favoured by the appellate authorities. Further, and more significantly, the appeal tribunal has appeared to confuse the requirement to consider both ‘most of the period’ and ‘from time to time’ in applying section 73(8). As was noted above, the appeal tribunal concluded that it: 

 

‘… felt the evidence that he would only go out occasionally to the Surgery and was driven to the door was not sufficient to constitute taking benefit of such facilities during most of the period.’  

 

39.   There is no clear determination of what period the appeal tribunal had in mind. In general terms it means the period of the award. As a minimum, and for the purposes of section 73(9)(b) that has to be a period of six months. In the instant case, and given the appeal tribunal’s conclusions with respect to the care component of DLA, the period which it had in mind was a two year period from 22 February 2009 – the date of the renewal claim - to 21 February 2011. As Commissioner Rowland put it in paragraph 13 of CDLA/496/2008:

 

‘… It is plain that section 73(8) is concerned with the whole period of the award and that during most of that time the claimant must be capable of benefiting from time to time from enhanced facilities for locomotion.’  

 

40.   In the instant case, it is not clear whether the appeal tribunal’s findings with respect to the occasional trip to the general practitioner’s surgery was made in the context of a ‘from time to time’ capability to benefit from enhanced facilities for locomotion or in the context of ‘most of the period’.

 

41.   Accordingly, we have concluded that the appeal tribunal has erred in both its failure to make adequate findings and provide adequate reasons in respect of the applicability of section 73(1)(d) and in its application of section 73(8) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.

 

One other matter arising

 

42.   A final issue which arose in the appeal was the potential applicability of regulations 12(7) and (8) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, as amended. Regulation 12(7) and (8) supplement section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as follows:

 

‘(7) For the purposes of section 73(1)(d) a person who is able to walk is to be taken not to satisfy the condition of being so severely disabled physically or mentally that he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time if he does not take advantage of the faculty in such circumstances because of fear or anxiety.

 

(8) Paragraph (7) shall not apply where the fear or anxiety is—

(a) a symptom of a mental disability; and

(b) so severe as to prevent the person from taking advantage of the faculty in such circumstances.’

 

43.   It is clear that this is a case where regulations 12(7) and (8) has the potential to apply and consideration ought to have been given by the appeal tribunal to that potential applicability.

 

Disposal

 

44.   The decision of the appeal tribunal dated 2 July 2009 is in error of law. Pursuant to the powers conferred on us by Article 15(8) of the Social Security (Northern Ireland) Order 1998, we set aside the decision appealed against.

 

45.   We direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

 

(i)         the decision under appeal is a decision of the Department, dated 10 November 2008 in which a decision-maker of the Department decided that the appellant was not entitled to DLA from and including 22 February 2009;

 

(ii)       the Department is directed to provide details of any subsequent claims to DLA and the outcome of any such claims to the appeal tribunal to which the appeal is being referred. The appeal tribunal is directed to take any evidence of subsequent claims to DLA into account in line with the principles set out in C20/04-05(DLA);

 

(iii)      the appeal tribunal, in considering entitlement to the mobility component of DLA and, in particular, section 73(1)(d) and section 73(8) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, is directed to take account of the principles which have been set out above;

 

(iv)      the appeal tribunal is directed to consider whether regulations 12(7) and (8) of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, as amended, apply to the circumstances arising in the case, to the extent that this issue remains relevant in the appeal, and in light of the evidence which is submitted

 

 

(signed):  J A H Martin QC

 

Chief Commissioner

 

 

K Mullan

 

Commissioner

 

 

J P Powell

 

Deputy Commissioner

 

 

 

27 July 2011