UK Social Security and Child Support Commissioners' Decisions

 


[1994] UKSSCSC CDLA_42_1994 (14 November 1994)

Commissioner's file: CDLA/042/94

SOCIAL SECURITY ACTS 1975 TO 1990

SOCIAL SECURITY ADMINISTRATION ACT 1992

CLAIM FOR DISABILITY LIVING ALLOWANCE

DECISION OF THE SOCIAL SECURITY COMMISSIONER

[ORAL HEARING]

1. The claimant's appeal is allowed. The decision of the Birkenhead disability appeal tribunal dated 12 August 1993 is erroneous in point of law, for the reasons given below, and I set it aside. The appeal is referred to a differently constituted disability appeal tribunal for determination in accordance with the directions given in paragraph 25 below (Social Security Administration Act 1992, sections 23(7)(b) and 34(4)).

The background

2. The claimant made a claim for disability living allowance (DLA) on 4 November 1992. The adjudication officer's decision was that she did not qualify for either the care component or the mobility component. She applied for a review, which did not alter the decision. She then appealed to the. disability appeal tribunal, in relation to the mobility component. The letter of appeal, written by her husband said that the claimant suffered from chronic depression and anxiety coupled with agoraphobia and that she could not go out on her own. She could not take advantage of the faculty of walking out of doors without guidance or supervision most of the time.
3. The claimant did not attend the hearing before the appeal tribunal. Her husband, who is her appointee for the purposes of the claim, did attend, and she was represented by a Mr Collins of the Wirral Welfare Benefits Advice Unit. The case made for the claimant was that she could not go out alone. She could only go out with supervision from another person. Even when accompanied she could not go far. She had panic attacks which caused her to wish to go home. The adjudication officer's representative drew particular attention to the advice dated 30 March 1993 given by a Benefits Agency Medical Service medical officer on the claimant's case (now at page T51 of the case-papers) apparently at the request of the adjudication officer. That was as follows:

"Her mental function is largely normal in respect of awareness of danger and intellectual capability. She is generally anxious and will not like being left alone and may panic. This in itself is not dangerous. I would not associate her condition as described with a significant suicide risk.

She could be left alone for many hours, indoors or out."

The appeal tribunal's decision

4. The appeal tribunal decided that the claimant was not entitled to the mobility component of DLA at either rate. Its findings of fact were as follows:

"1. Summary of facts at paragraph 4 form DLA D/L4 accepted.

2. [The claimant's] agoraphobia makes it impossible for her to go out alone. If she goes out with someone she can only go a short distance before she panics and has to go home.

3. These panic attacks cause her to want to go home and are not dangerous."

The statement of facts found by the adjudication officer on form DLA D/L4 was as follows:

"4.1 [The claimant] suffers from agoraphobia.

4.2 [The claimant] does not like to be left alone as she becomes anxious and panics.

4.3 [The claimant] is mentally alert so these attacks in themselves are not dangerous. Therefore the adjudication officer does not consider guidance or supervision is necessary. "

The appeal tribunal's reasons for decision were as follows:

"[The claimant] does not satisfy the conditions set out for the award of the care [probably a slip for mobility] component of Disability Living Allowance. [The claimant] cannot go out by herself and when accompanied she is still unable to take advantage of the presence of another person and because of her panic attacks she has to return home within a very short time.

The Tribunal accepted the evidence of the MO dated 30/3/93 at page 49."

Subsequent proceedings

5. An application for leave to appeal to the Commissioner was made on behalf of the claimant, which was granted by the appeal tribunal chairman. The grounds put forward by Mr Atkinson of the Wirral Welfare Benefits Advice Unit in the application were: that the appeal tribunal may in its reasons for decision have been referring to the requirement in section 73(8) of the Social Security Contributions and Benefits Act 1992 ("the 1992 Act") that a claimant's condition is such as to permit her from time to time to benefit from enhanced facilities from locomotion, yet the fact that the claimant sometimes cannot walk outside even when accompanied did not mean that she could not benefit from such enhanced facilities; that the fact that the claimant's panic attacks were not dangerous did not mean that guidance or supervision was not reasonably required; and that the appeal tribunal did not explain why, if the claimant could not walk out of doors alone, she did not satisfy the conditions for the lower rate mobility component. In the submission on the appeal Mr Atkinson added to the first ground the point that if the appeal tribunal was referring to the wording of section 73(1)(d) of the 1992 Act the fact that a claimant could not venture out far even when accompanied did not mean that she did not satisfy the conditions of that provision. He also added that if the appeal tribunal had meant that the support, encouragement and reassurance required by the claimant when walking out of doors did not amount to "guidance or supervision" then that was an error of law in the interpretation of the statutory words.
6. The submission dated 9 April 1994 of the adjudication officer then concerned with the appeal agreed that the appeal tribunal had erred in law in misinterpreting section 73(8) of the 1992 Act and in failing to explain why it considered that the claimant did not require guidance or supervision. That submission also included the following paragraph:

"6. It is my submission that the law for the lower rate of the mobility component was intended to benefit the blind or mentally impaired (or in certain circumstances the deaf). The blind would require guidance out of doors as they would be unable because of their disability to reach their destination on an unfamiliar route. The mentally impaired would fall basically into two categories, those whose behaviour out of doors was either reckless or anti-social and those [whose] mental capacity would preclude them from being able to reach their destination on an unfamiliar route. Both these groups would require either guidance or supervision out of doors. The law however was not intended to encompass those who for their own benefit would prefer a third party to be present to provide reassurance. The word reassurance indicates a passive assistance desired by the claimant themselves, whereas guidance and supervision indicates a more forceful intervention necessitated by the claimant's disability."

7. In his observations in reply Mr Atkinson took issue with the approach put forward in that paragraph and requested that there should be an oral hearing of the appeal. I granted that request.

The submissions at the oral hearing

8. The oral hearing took place on 25 October 1994, together with the hearings on two other appeals, CDLA/37/1994 and CDLA/47/1994. The claimant was represented by Mr Atkinson. The adjudication officer was represented by Mr A Prosser of counsel. I am grateful to both representatives for their most helpful submissions.
9. Mr Prosser adopted the adjudication officer's submission dated 9 April 1994 on the errors of law made by the appeal tribunal of 12 August 1993 and that the proper course was for the appeal to be remitted to a new appeal tribunal, which should make the necessary findings of fact to apply the proper test. I therefore need say no more about that. The main discussion was about the directions which I should give on remitting the appeal.

10. On that matter there was also a large measure of agreement. The starting point is the terms of section 73(1) of the 1992 Act, which provides:

"(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 age of five and throughout which –

(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so; or

(b) he falls within subsection (2) below; or

(c) he falls within subsection (3) below; or

(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."

Mr Atkinson submitted that the proper approach to paragraph (d) was that first the claimant must be suffering from some identifiable physical or mental condition which amounts to a disablement. Then the question of the severity of the disablement is tested by reference to the effect on the claimant's ability to take advantage of the faculty of walking in the terms of the rest of paragraph (d). There is not a separate condition that the disablement must be found to be severe before one can go on to consider the effect on the claimant's ability to take advantage of the faculty of walking. He said that since paragraph (d) contains the qualification for the lower rate of mobility component, it would be perverse in the light of section 73(1) as a whole to import a separate test of the severity of disablement into paragraph (d), when there is no such test in paragraph (a), which contains a qualification for the higher rate of the mobility component. The next stage is, disregarding any ability to use familiar routes, to ask whether the claimant cannot take advantage of the faculty of walking out of doors without guidance or supervision most of the time. Mr Atkinson accepted that the word "cannot" connoted an objective test, but submitted that it was for appeal tribunals (embodying the reasonable man) to determine what amounts to taking advantage of the faculty. A claimant is not excluded by the ability to make any kind of progress out of doors without guidance or supervision and it is a question of fact when the degree of progress which can be made means that the claimant can take advantage of the faculty. That left the central question of the meaning of "guidance or supervision".

10. I need to record Mr Atkinson's submissions on that question in some detail. He first stressed that the need for either guidance or supervision would do. He accepted that in considering cases involving anxieties or phobias there would be a continuum of needs from mild to severe and that in some cases no more than reassurance or the mere presence of another person would be needed to enable the person to walk on unfamiliar routes. In that case, he said, paragraph (d) would not be satisfied. But it is necessary to look in detail at what help is required on unfamiliar routes. The type of help that might be described as reassurance could also involve the supervision of the person's mental state, for instance if the person was subject to panic attacks in which they might freeze or run off in a random direction. The fact that the presence of a companion gives the person reassurance does not mean that the companion cannot also be carrying out the functions of supervision or guidance. There might be the need for constant monitoring of the person's mental state. Mr Atkinson referred to the description of the concept of supervision approved of by the Court of Appeal in Moran v Secretary of state for Social Services, appendix to R(A) 1/88, in the context of the legislation on attendance allowance. Supervision was there said to connote a more passive concept than that of attention, such as being in the same room as a disabled person so as to be prepared to intervene if necessary, but not actually intervening save in an emergency. There might be a need for encouragement, cajoling and demonstration which could in some circumstances amount to guidance. Guidance could be purely oral. However, Mr Atkinson submitted that phobics are more likely to need supervision, such as the continual monitoring of the person and the route coupled with readiness to intervene when necessary, rather than guidance.
11. Mr Prosser did not adopt the views expressed in paragraph 6 of the adjudication officer's submission dated 9 April 1994. He also submitted that this was not an appropriate case for consultation of Hansard under the conditions of Pepper v Hart [1993] AC 593. Mr Atkinson agreed with that. Especially since the extracts which had been produced in response to an earlier direction of mine seemed entirely unhelpful, I am content to accept that submission. Mr Prosser submitted that under the ordinary rules of statutory construction the words used in section 73(1)(d) should be given their ordinary and natural meaning. He considered that the provision should be looked at as a whole, so that there might be dangers in taking individual words and phrases out of their context. Nevertheless, he effectively agreed with the approach of Mr Atkinson to the issues which are mentioned in paragraph 10 above. And he agreed that the central issue was the meaning of the words "guidance or supervision".
12. Mr Prosser referred first, in the identification of the ordinary meaning of the words, to the definitions in the Oxford English Dictionary. The first definition of "guidance" is "the action of guiding; directing agency; leadership, direction" and the first definition of "guide" is "one who leads or shows the way". Thus, he said, if a person needed to be directed or led on unfamiliar routes most of the time, she would qualify. It was a question of fact and degree whether that was so. There might be people suffering from agoraphobia who could not get anywhere without guidance. Some people might require guidance after suffering a panic attack, but then the frequency and severity of the attacks would be relevant to the question of whether the guidance was needed most of the time. The definition of "supervision" in the Dictionary is "the action or function of supervising; oversight, superintendence". Although supervision must mean something different from guidance, Mr Prosser submitted that in anxiety cases the effect was very similar. He submitted that the legislative context was to be distinguished from that considered in the Moran case. When considering section 73(1)(d) of the 1992 it was supervision directed to enabling the disabled person to take advantage of the faculty of walking which had to be considered and that implied some degree of assistance rather than a purely passive state. There was a distinction between mere reassurance or presence and guidance or supervision, although the latter might involve elements of reassurance. The legislature could have used different words, for instance making the test whether a person could take advantage of the faculty of walking without being accompanied, but had not done so. In the present case, Mr Prosser suggested that the claimant only needed supervision when she actually had a panic attack and in the aftermath of an attack.

Conclusions on guidance or supervision

13. It is convenient to state here my conclusions on the questions of law which were in dispute between Mr Atkinson and Mr Prosser. I give more general directions related to the present case in paragraph 25 below. I broadly prefer Mr Atkinson's submissions on the meaning of guidance or supervision to those of Mr Prosser. I bear in mind that the words "guidance" and "supervision" are ordinary English words which Parliament has chosen not to define. Therefore, I do not attempt to give any kind of exhaustive definition of those words. However, there are questions of law as to their effect in the statutory context of section 73(1)(d) of the 1992 Act and as to the kind of evidence which is relevant.
14. The overall structure of the test in section 73(1)(d) is not entirely free from difficulty. A claimant will fall squarely within it when she is unable most of the time to take advantage of the faculty of walking on unfamiliar routes out of doors without guidance or supervision from another person and is able to take advantage of that faculty with guidance or supervision. However, I accept Mr Atkinson's submission that it would be absurd if a claimant whose disablement was so severe that she was not able to take advantage of the faculty of walking on unfamiliar routes out of doors even with guidance or supervision was excluded from section 73(1)(d). Because of the negative formulation of the provision, a claimant does not necessarily have to show an ability to take advantage of that faculty with guidance or supervision. But section 73(1)(d) is manifestly not intended to assist a physically disabled claimant who is able to walk and is able to walk a sufficient distance at a sufficient speed in a sufficient manner not to be virtually unable to walk on the test provided by regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 where the limits on the claimant's walking ability do not stem from an absence of guidance or supervision. Such a claimant, whose walking ability might be limited by increasing pain or fatigue, cannot say "The amount of walking I can do is not of any practical use to me in the real world; although I can walk I cannot take advantage of the faculty of walking and guidance or supervision would not help me; therefore I qualify for the lower rate mobility component of DLA". Section 73(1)(d) can only apply when the nature of the limit on the claimant's walking ability imposed by her physical or mental disablement is such as could, in its general nature, be extended when guidance or supervision from another person is available. With that qualification, a claimant falls within section 73(1)(d) when unable to take advantage of the faculty of walking even with guidance or supervision.
15. The context for consideration of the meaning of guidance or supervision is thus the provision of something which may enable the claimant to take advantage of the faculty of walking. That might be thought to be self-evident, but the approach of the adjudication officer in the submission to the appeal tribunal in the present case shows that it is necessary to emphasise the difference from the context of the use of the word "supervision" in the conditions of entitlement to the care component of DLA and attendance allowance. There, by virtue of the express words of the legislation, the concern is with continual supervision to avoid substantial danger to the claimant or others. There is no such limitation in the mobility component context.
16. The meaning of "guidance" in section 73(1)(d) of the 1992 Act is likely to give rise to little difficulty. The ordinary dictionary meaning cited by Mr Prosser points one towards the action of directing or leading. It may include guiding the claimant to a destination desired by the claimant (for instance avoiding obstacles or places which would upset the claimant) or setting a destination and guiding the claimant to it (for instance leading or persuading a claimant who had become disorientated or who had suffered a panic attack back home). It may be constituted by physically leading or directing a claimant or by oral suggestion or persuasion. Those points amount to no more than the spelling out of the ordinary meaning of the word.
17. The meaning of "supervision" is more problematic. Although I have drawn attention above to the need to keep the different contexts clearly in mind, many cases on attendance allowance contain helpful discussions of the meaning of the word. The submissions made to me referred to the approval by the Court of appeal in the Moran case of the concept of a passive standing by coupled with a readiness to intervene. That approval has itself been approved by the House of Lords in Mallinson v Secretary of State for Social Security [1994] 1 WLR 630, [1994] 2 All ER 295, both by Lord Woolf in the majority and by Lord Lloyd giving the minority opinion. I find the most helpful formulation that of the then Chief Commissioner in paragraph 9 of R(A) 2/75, one of the decisions relied on Moran and Mallinson. He said:

"In my opinion the characteristic nature of 'continual supervision' is overseeing or watching over considered with reference to its frequency or regularity of recurrence (see Decision C.A. 5/72 (not reported) paragraph 8). The object of supervision is to avoid substantial danger which may or may not arise; so supervision may be precautionary and anticipatory, yet never result in intervention, or it may be ancillary to and part of active assistance given on specific occasions to the claimant."

In other cases (Moran and R(A) 1/73) it was held that a presence (even asleep) ready to give assistance when the need arose, but the notion of being ready to give assistance implies a degree of monitoring or watching over or listening out such that the person supervising is able to detect signs of need. Supervision may be passive by nature, but it is not constituted by mere presence. In the context of the care component of DLA and of attendance allowance it implies sufficient monitoring to be able to detect signs of a need for assistance.

18. Translating that approach, disregarding for the moment the "continual" element, to the context of section 73(1)(d) produces the result that there is supervision of a claimant's walking when another person is accompanying the claimant and is watching over her, in the sense of monitoring her physical or mental or emotional state for signs of something that might require some more positive action by the person to enable or encourage the claimant to continue walking or monitoring the route ahead for obstacles, dangers or places or situations which might upset or disquiet the claimant or otherwise affect her adversely. Such monitoring is supervision even though it never results in the need for more positive action. Such action, which might still be essentially precautionary, can also come within the meaning of supervision. The sorts of things I have in mind here are encouraging, persuading or cajoling the claimant, or providing distraction from possibly alarming situations by conversation. I stress again that these are merely examples of what in my view comes within the ordinary meaning of "supervision" and I am not purporting to give a definition to be applied mechanically to all cases. In different circumstances other kinds of action may be supervision.
19. If a person is providing guidance or supervision, within the ordinary meanings of those words, it does not take the situation outside section 73(1)(d) if the claimant gains reassurance from the presence of the person. Nor, in my view, does it matter that the mechanism by which the supervision allows the claimant to take advantage of the faculty of walking might be described in a general sense as reassurance. Although Mr Atkinson accepted that "mere reassurance" would fall outside section 73(1)(d), do not find the distinction between mere reassurance and guidance or supervision helpful and I do not think that it is a proper approach to seek to draw a line between those notions. What is required is that the need for guidance or supervision must be linked to the limits on the claimant's ability to take advantage of the faculty of walking imposed, wholly or in combination with other causes, by her physical or mental disablement. That requirement stems from the express words of section 73(1)(d), by which the inability to take advantage of the faculty of walking must result from the claimant's disablement and it must be found that the claimant cannot take advantage of the faculty without guidance or supervision. It is not necessary that the disablement should be the sole cause of the limits. And the claimant's disablement includes not only what might be called the underlying condition, but also other conditions caused by the underlying condition (such as a hysterical condition caused by the pain of a spinal condition, mentioned as an example by the Court of Appeal in Harrison v Secretary of State for Social Services, appendix to R(M) 1/88). The line is between limits which are imposed on the claimant as part of the often complex and tangled web of disablement and its physical and mental effects and limits imposed by the claimant as a matter of purely voluntary choice. If the guidance or supervision is directed to assisting the claimant to overcome limits of the first kind it comes within section 73(1)(d). If the guidance or supervision is directed to assisting the claimant to overcome limits of the second kind it does not.
20. I recognise that in some circumstances, especially in cases within the category of mental disablement, that line may be very difficult to draw. The essential basis for applying the proper test is a full investigation and recording of the underlying facts. It is not sufficient to rely on vague notions like reassurance or on general statements by the claimant or others, which may fail to mention vital matters. The adjudicating authority (the adjudication officer or an appeal tribunal) must consider in detail exactly what it is that the person accompanying the claimant on unfamiliar routes does (or would do) and ask whether that comes within the meaning of guidance or supervision as explained above. Where the disabled person has problems stemming from her disablement in walking on unfamiliar routes, requiring some active intervention of the person accompanying her, there is not likely to be much difficulty in applying the proper test if those circumstances are satisfactorily proved. Difficulties may arise, for example, where the evidence shows that when the disabled person is accompanied on unfamiliar routes the supervision has not needed to go beyond the purely monitoring stage. In such circumstances, the questions of whether the limits on the disabled person's ability to take advantage of the faculty of walking are imposed to any extent by her disablement and whether she "cannot" take advantage of the faculty on unfamiliar routes may become more central. If there is evidence of what happens when the disabled person does attempt unfamiliar routes without supervision, that may help resolve the matter, as may medical evidence directed specifically to those questions. If the evidence is that the disabled person does not attempt unfamiliar routes at all unless supervision from another person is available, then the adjudicating authority must make a judgment on the evidence available whether the claimant has proved on the balance of probabilities that as a result of her physical or mental disablement she is not able to take advantage of the faculty of walking without supervision. It may be necessary to distinguish such an inability from matters of purely voluntary choice or the over-protectiveness of carers. I stress that the examples used above are intended only to illustrate some of the difficulties which might be faced by adjudicating authorities and are not intended to cover all the possible varieties of different circumstances which might arise.
21. I have set out my reasoning on the points in contention in some detail, in deference to the submissions made to me and because I was referred to no previous decision in which the meaning of the words "guidance or supervision" in section 73(1)(d) has been analysed. It may help readers if I summarise my conclusions on those points and on the other conditions for entitlement set out in section 73(1)(d). All the points of the summary must be read together. No one point should be isolated from its context.

(a) Section 73(1)(d) of the 1992 Act is open to claimants who are able to walk, but who are affected by a medically recognised physical or mental condition which amounts to a disablement and which limits their ability to take advantage of the faculty of walking.

(b) There is no independent condition that the claimant be severely disabled. Severity is tested by whether the claimant meets the other conditions of the provision.

(c) Any ability of the claimant to use familiar routes on her own is to be disregarded. The subsequent points refer to walking out of doors on unfamiliar routes.

(d) The claimant meets the conditions of section 73(1)(d) if she is unable to take advantage of the faculty of walking even with guidance or supervision from another person, if the limits imposed on her ability by her physical or mental disablement are such as in their nature could be alleviated by guidance or supervision from another person.

(e) The claimant meets the conditions of section 73(1)(d) if she is only able to take advantage of the faculty of walking with guidance or supervision from another person.

(f) The claimant meets the conditions of section 73(1)(d) although she does not fall within point (d) or (e) all of the time, providing that she falls within one or other of those points most of the time.

(g) The question of what amounts to taking advantage of the faculty of walking is a question of fact for the adjudication officer or the disability appeal tribunal.

(h) Only limits on the ability to take advantage of the faculty which result to some extent from the claimant's physical or mental disablement may be taken into account"

(i) The meaning of guidance or supervision must be considered within the context of action which is aimed at enabling the claimant to take advantage of the faculty of walking despite the limits imposed by her physical or mental condition. It is not a condition that guidance or supervision should be necessary to avoid a risk of danger to the claimant or others.

(j) Guidance means the action of directing or leading. It may, for example, be constituted by physically directing or leading the claimant or by oral direction, persuasion or suggestion.

(k) Supervision, in the context of section 73(1)(d), means accompanying the claimant and at the least monitoring the claimant or the circumstances for signs of a need to intervene so as to prevent the claimant's ability to take advantage of the faculty of walking being compromised. Other, more active, measures may also amount to supervision. The monitoring does not cease to fall within the meaning of supervision by reason only that intervention by the person accompanying the claimant has not in the past actually been necessary.

(l) The fact that the claimant derives reassurance from the presence of the other person does not prevent action which would otherwise fall within point (j) or (k) from being guidance or supervision.

Was the appeal tribunal's decision erroneous in point of law?

22. I agree that the appeal tribunal did err in law. I do not think that it intended to refer to section 73(8) of the 1992 Act in its reasons for decision, but on any basis it failed to explain why on its findings of fact it concluded that the claimant had failed to show, in relation to any part of the period from 4 August 1992 (three months before the date of claim) onwards, that she was unable to take advantage of the faculty of walking out of doors on unfamiliar routes without guidance or supervision most of the time. I also consider that the appeal tribunal was wrong to describe the report from the medical officer dated 30 March 1993 as evidence. That report was no more than an opinion based on a reading of the case-papers. It was not based on any direct examination or observation of the claimant. There is no objection to an appeal tribunal adopting such a statement of opinion as representing its own view, but that view must be based on evidence independent of that expression of opinion. In the present case, the medical officer's report contained at least one assertion which is not supported by any evidence in the papers before me (that the claimant could be left alone for many hours out of doors) and opinions on matters which may have been relevant to the conditions for the care component of DLA, but were not relevant to the conditions for the lower rate mobility component (for instance, that panicking on being left alone was not in itself dangerous and that there was no significant suicide risk). Since the appeal tribunal specifically found that the claimant's panic attacks while walking were not dangerous, it may have been misled into applying the wrong test by the medical officer's report and the written submission from the adjudication officer. As will emerge from the directions given to the new appeal tribunal, the appeal tribunal also failed to make the necessary findings of fact.
23. For those reasons, the appeal tribunal's decision dated 12 August 1993 must be set aside as erroneous in point of law. I have also concluded that the appeal must be referred to a differently constituted disability appeal tribunal for determination. The appeal tribunal's finding that it was impossible for the claimant to go out alone is too general for me to give a decision based on it.

Directions to the new appeal tribunal

24. There must be a complete rehearing before the new appeal tribunal. Section 73(9) of the 1992 Act provides, in the case of an initial claim, that a person is not to be entitled to the mobility component of DLA unless she has satisfied one of the conditions in subsection (1) for a period of three months before the date immediately preceding the date on which the award of that component would begin and is likely to continue to satisfy one or other of those conditions for the period of six months beginning with that date. Therefore, the new appeal tribunal must consider whether from the date three months before the date of claim onwards, down to the date of its decision, the claimant has satisfied a condition in subsection (1) for a continuous period of three months and is likely to continue to satisfy a condition for at least six months. In the present case, the only condition which appears likely to need consideration, unless there is significantly different evidence, is that contained in section 73(1)(d) of the 1992 Act. The new appeal tribunal must apply the approach to that provision summarised in paragraph 22 above, in the light of the further explanation in paragraphs 14 to 21. In particular, the new appeal tribunal must make detailed findings of fact on the matters mentioned in paragraph 21 above, including exactly what it is that any person who accompanies or accompanied the claimant on unfamiliar routes does or did. The appeal tribunal may also need to consider whether the claimant is able to use unfamiliar routes at all. The claimant and her representative may wish to consider what evidence to present to the new appeal tribunal in the light the legal approach which I have directed the new appeal tribunal to adopt.

Conclusion

25. The claimant's appeal is allowed.

(Signed) J Mesher

Commissioner

Date: 14 November 1994