UK Social Security and Child Support Commissioners' Decisions

[1996] UKSSCSC CDLA_2364_1995 (01 January 1996)


 


RJCA/LB/1

Commissioner's File: CDLA/2364/1995

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF DISABILITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The decision of the Disability Appeal Tribunal dated 28 March 1994 is not erroneous in law.
2. The claimant appeals out of time, with the leave of a Social Security Commissioner and the support of the adjudication officer now concerned, against the tribunal's decision that she has not qualified at any time since 8 February 1992 for either the higher or lower rate of mobility component of disability living allowance and that she has no care requirements.

3.(1) The claimant suffers from claustrophobia and agoraphobia. She applied for disability living allowance on 8 February 1992. On the application form she stated "no care needs" and the only information about her mobility requirements which she provided was that she is unable to leave home except in her car (driven by herself), cannot use public transport and has to rely on others for her shopping. Her application was refused by adjudication officers at both the first and second tier stages of adjudication. She appealed. A tribunal dismissed her appeal on 25 May 1993 but that tribunal's decision was set aside and the case was reheard by a second tribunal on 28 March 1994.

(2) The claimant did not attend the tribunal hearing on 28 March 1994 but she was represented by the Citizens Advice Bureau and her mother attended. According to the chairman's note of evidence the claimant's representative produced a letter from the claimant's general practitioner (which I cannot find in the papers) and submitted that the claimant needed supervision and would not go out on her own. The claimant's mother is recorded as having said that the claimant went out in her car to her mother's house, just at night, that her shopping is done by her mother and that she never walks beyond the garden gate.

4. The record of the tribunal's decision includes the following findings in fact:-

"The appellant is physically able to walk. She suffers from agoraphobia and claustrophobia. She will never walk further than the garden gate of her house, or within the curtilage of her mother's house. She drives a car, but will only drive to or from her mother's house, and at night.

Her mother can not persuade her to walk out of doors, under any circumstances.".

The tribunal's reasons for its decision are recorded as being:-

"The appellant is physically able to walk and does not therefore qualify for the higher rate Mobility Component since she is not virtually unable to walk. The appellant is not disorientated, but refuses to walk out of doors because of her problems caused by agoraphobia. Even with supervision she cannot take advantage of her ability to walk out of doors (beyond the curtilage of her own or her mother's house). Further than this she will only venture to her mother's house in her car.".

3. The claimant has based her claim solely on her mobility needs. The conditions for entitlement to disability living allowance are enacted in section 72(1) and 73(1) of the Social Security Contributions and Benefits Act 1992. There is no suggestion in any of the documentary evidence before me or in any of the oral evidence recorded by the tribunal chairman that the claimant is either totally unable or virtually unable to walk by reason of physical disablement, is without any part of either lower limb, blind, deaf, severely mentally impaired with accompanying behavioural problems or satisfies the conditions for entitlement to any rate of the care component of the allowance. The provision of the 1992 Act in issue in this appeal is, therefore, section 73(1)(d) which states the condition for entitlement to the lower rate of mobility component, payable by virtue of sub-section (11)(b), thus:-

"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.".

Subsection (8) of section 73, which I mention later in this decision, is in the following terms:-

"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.".

4. The claimant's grounds of appeal to me are that the tribunal, in disallowing the appeal because the claimant cannot take advantage of the faculty of walking out of doors even with supervision, has failed to follow the guidance given in Commissioner's decision CDLA/042/94. Two passages from that decision are quoted, viz:-

" ... 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." which is part of paragraph 15 of the decision.

and

"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." which is paragraph 22(d) of the decision.

7(1). The adjudication officer refers me to several passages from CDLA/042/94 which he regards as supporting the claimant's appeal. Those are the passages in paragraph 6 above and paragraphs 17 to 20 of CDLA/042/94. Paragraphs 17 to 20 deal with the meaning of "guidance" and "supervision" as used in section 73(1)(d). In those paragraphs the Commissioner expressed the view that "guidance" could involve physically leading or directing a claimant or oral suggestion or persuasion. "Supervision" he regards as including encouraging, persuading or cajoling the claimant, providing distraction from possible alarming situations or the mere provision of reassurance by the presence of the helper.

(2) The adjudication officer draws attention also to CDLA/757/94 in which another Commissioner, notwithstanding the negative formulation of the provision, took the view that section 73(1)(d) proceeds on the basis that guidance or supervision will remedy the claimant's inability to make use of his faculty of walking. The adjudication officer refers also to CSDLA/65/94 in which the Commissioner considered that "encouraging, persuading or cajoling the claimant" could be activities included in guiding or supervising within the meaning of section 73(1)(d) but could not by themselves in the ordinary meaning of words constitute guidance and supervision. In addition, the adjudication officer refers to CSDLA/192/94 in which the Commissioner stated that the tribunal to which he was remitting the claimant's case for rehearing should, in the circumstances of the case, be able to decide on the applicability of section 73(1)(d) on the basis of the "straight-forward ordinary" meaning of "guidance" and "supervision" rather than by reference to the detailed consideration of the meaning of those words to be found in CDLA/042/94.

5. In response to the adjudication officer's submission to me, the claimant's representative has observed that although the Commissioner who decided CDLA/757/94 thought that the guidance or supervision had to overcome the claimant's inability to exercise his faculty of walking, he also said, in paragraph 11 of his decision, that agoraphobia is capable of being remedied by supervision, viz:-

"In other words, the guidance or supervision will remedy his incapacity. And so it may be in cases where, for example, the claimant will not go out of doors because he suffers from agoraphobia or where, on going out of doors, he subsequently suffers from panic attacks. In the former instance, by encouraging and cajoling him, the "supervisor" may well be able to induce him to walk out of doors.".

That, it is argued for the claimant, is consistent with the CDLA/042/94 view that the claimant comes within the scope of sub paragraph (d) if the limits imposed on her ability by her physical or mental disablement are such that in their general nature they could be alleviated by guidance or supervision from another person and agoraphobia, which is what afflicts the claimant, can in its general nature be alleviated by supervision.

6. An additional submission by the adjudication officer refers me to CSDLA/041/95 and in particular to the following passage from paragraph 6 of that decision:-

"However, so far as the question of the claimant's possible entitlement for the lower rate of the mobility component of the allowance may arise before the new tribunal, I should state that I am not in complete agreement with the observations of the Commissioner in decision CDLA/042/94, quoted by the adjudication officer in paragraphs 22 and 23 of his submission, with reference to what may amount to "guidance" or "supervision" for the purposes of section 73(1)(d) of the Social Security Contributions and Benefits Act 1992. I prefer simply to direct the new tribunal to approach those questions, should they arise, on a consideration of whether the evidence in this case shows that the claimant has been so severely disabled physically or mentally that she cannot take advantage of the faculty of walking without "guidance or supervision from another person most of the time within the ordinary meaning of the words "guidance" and "supervision".".

7. The adjudication officer submits that agoraphobia in its general nature requires that the sufferer is given a degree of "encouraging, persuading or cajoling" to enable him to walk outdoors. Those, in the light of CDLA/042/94, can constitute "guidance" or "supervision" within the meaning of Section 73(1)(d) although CDLA/192/94 and CDLA/65/94 put a narrower interpretation on those words. It is by reason of CDLA/042/94 that the adjudication officer supports the claimant's appeal. He asks that I remit the case to a differently constituted tribunal for rehearing with directions as to whether the claimant has to show, at some point, an ability to take advantage of the faculty of walking on unfamiliar routes out of doors with guidance or supervision and as to how wide a view can be given to "guidance or supervision". In my view, for the reasons which I give below, on the facts found by the tribunal, which are not disputed, the claimant is not entitled to disability living allowance and the tribunal's decision is one which it was entitled to make. I do not, therefore, remit the case for rehearing.

11.(1) The object of the disability living allowance scheme is to provide disabled claimants with money which can be applied towards the expense of coping with the effects of their disablement. In the case of the mobility component the benefit is paid at two rates. The higher rate goes to claimants who satisfy the conditions for entitlement specified in paragraph (a) to (c) of subsection (1) of section 73 of the 1992 Act as read with regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991. Those are people who are unable or virtually unable to walk out of doors by reason of physical disablement, those who by reason of the combined effects of blindness and deafness cannot reach any intended or required destination out of doors without the assistance of another person and those who by reason of defective development of the brain are, inter alia, so disruptive that they require constant watching over when awake and the frequent intervention of another person to prevent physical injury to themselves or others. Clearly the beneficiaries envisaged are those with a high degree of disablement and dependence on others for any degree of mobility out of doors and whose needs will in many cases include, or be most conveniently met by, either private transport or frequent use of public transport. In all cases the underlying cause of the restriction on mobility out of doors is physical. The higher rate, is paid to those people by virtue of sub-section (11)(a) of section 73.

(2) On the other hand paragraph (d) of sub-section (1) as read with sub-section 11(6), provides for a lower rate for those who can walk but by reason of physical or mental disablement cannot make use out of doors of their ability to do so without guidance or supervision from another person. This differs from the higher rate provision in several ways. The reference to guidance or supervision in sub-paragraph (d) is a reference to measures which can be expected to overcome or ameliorate the specified effects of the disablement whereas, except in the case of regulation 12(3), the higher rate scheme makes no such reference: but the reference which is made in regulation 12(3) - assistance to walk to any intended or required destination out of doors - indicates a much greater restriction on outdoor mobility than that envisaged by section 73(d) which need be no more than an inability to use unfamiliar routes. The lower rate provision is for payment of benefit to those whose disablement is purely mental in origin as well as to those whose disablement is physical in origin whereas the higher rate provision is limited to those whose disablement has a physical origin.

(3) Therefore paragraph (a) to (c) on the one hand and paragraph (d) on the other provide for two distinct groups of people identified by both the cause of their disablement and the severity of its effect on their mobility. The higher rate of benefit, is for those suffering from severe disablement of a physical origin with a high degree of dependence for out of doors mobility on other people, on mechanical equipment or on both. The lower rate is, for those who are either mentally or physically disabled but are restricted in their mobility only to the extent that although they can walk they cannot walk out of doors without guidance or supervision from another person.

12.(1) That being my understanding of the purpose and structure of the mobility component scheme, I disagree with what is said in paragraph 15 and 22(d) of CDLA/042/94, quoted in paragraph 6 above. Despite the negative formulation of sub-paragraph (d) of section 23(1) I think that a claimant, to succeed in a claim under that provision, must establish that guidance or supervision from another person would overcome his inability to make use, out of doors, of the faculty of walking. If, as CDLA/042/94 states, all that need be established is that the general nature of the limitations on the claimants ability is such that they could be alleviated by guidance or supervision, a claimant could be entitled to payment of benefit under section 73(1)(d) even although payment would never result in her being able to make use out of doors of her faculty of walking. Moreover, in this claimant's case and in similar cases sub-section (8) of section 73 would not preclude entitlement because any claimant who cannot go out of doors on foot but can travel by car can be said to be able to benefit from enhanced facilities for locomotion. Therefore a claimant who did not qualify under section 73(1)(a) to (c) because the disablement was purely mental in origin or, although physical, was not of the qualifying degree of severity or of a qualifying category, could through sub-paragraph (d) obtain financial help towards the cost of a facility which under the section 73 scheme is appropriate only to those who come within the scope of sub-paragraphs (a) to (c).

(2) In this matter I follow the Commissioner who decided CDLA/757/1994. Contrary to the argument for the claimant, I do not think that what is said in paragraph 11 of that decision supports the claimant's case or is in agreement with paragraphs 15 and 22(d) of CDLA/042/94. I think that the Commissioner in CDLA/757/94 takes the view, as do I, that whether or not a person who avers a need for guidance or supervision when walking out of doors comes within the scope of section 73(1)(d) has to be decided by reference to the effect on the particular claimant of supervision or guidance and not by reference to the effect that supervision or guidance could be expected to have on any person who experiences limitations of the nature of those experienced by the claimant.

8. Further, to my mind "supervision" within the meaning of section 73(1)(d) is supervision of somebody who is out of doors and who either is or has been walking as a result of that supervision in the course of that particular outing or in the course of past outings. That supervision does not include unsuccessful attempts to persuade somebody who has not done so since the onset of disablement to walk out of doors. None of the efforts of a claimant's helpers amounts to supervision for the purposes of sub-paragraph (d) until those efforts overcome with reasonable frequency the claimant's inability to make use out of doors of the faculty of walking. Until that point is reached the lack of somebody to supervise her would have no bearing on the claimant's failure to walk out of doors. I think that even if that were not the import of the language of section 73(1)(d) it is the construction that would have to be put on that provision to comply with the purpose of the legislation. Any less strict a construction would result in payments to claimants who would not benefit from the assistance which the scheme is intended to finance or to claimants for whose benefit the scheme is not intended. This claim fails because the claimant has not established that there is any amount of supervision from another person which can overcome her inability to make use out of doors of her faculty of walking.
9. The adjudication officer has drawn attention to the divergence of opinion among Commissioners as to whether "supervision" in the context of section 73(1)(d) can embrace "encouraging, persuading or cajoling" the claimant as accepted by the Commissioner in CDLA/042/96 and asked for a direction as to the interpretation of "guidance or supervision "as used in that sub-section. Unless my decision is successfully challenged there will be no fresh tribunal to apply any such direction but I shall deal with the point since I have been asked to do so.
10. In CDLA/042/96 the Commissioner declined to distinguish between "reassurance" and "supervision". He cited as authority for his view the House of Lords approval of the concept of supervision by way of "passive standing by with readiness to intervene" in Mallinson v. Secretary of State for Social Security [1994] 2A11 ER 295. That case concerned the meaning of "supervision" in a provision which is now enacted in sections 64(2)(b) and 72(1)(b)(ii) of the 1992 Act. Those enactments refer to "supervision in order to avoid substantial danger". Those Commissioners who decided CDLA/192/94 and CDLA/65/94 seem to consider that "supervision" in the context of section 73(1)(d) does not extend to anything as non-interventional as "encouragement" etc.

16(1) It seems to me that what can be taken from the Mallinson decision is that "supervision" in the context of section 64(2)(b) and 72(1)(b)(ii) includes any conduct on the part of a person other than the claimant which avoids substantial danger to the claimant or others and so achieves the purpose for which benefit is paid under those two provisions. Accordingly I can accept that "supervision" in the context of section 73(1)(d) includes any conduct on the part of another person which enables a claimant who could not otherwise do so to exercise out of doors his faculty of walking. Therefore "supervision" can include something as non interventional as the reassurance which in some cases a claimant derives from the company of another person when he is out of doors.

(2) However, such a wide interpretation does not open the door to claims from whomsoever simply feels more comfortable when walking out of doors if accompanied by another person. I agree with CDLA/042/94 that a purely voluntary choice to have company when walking will not bring a claimant into section 73(1)(d). He will have to prove on the balance of probabilities that he suffers from mental or physical disablement and prove also that when there is provided supervision, of whatever degree of intervention he claims to require, he can exercise out of doors his faculty of walking to an extent to which he can not exercise it without that supervision. The degree of subjectivity in cases in which mere reassurance or encouragement is the only claimed need is such that adjudication authorities will look very carefully at the evidence in order to satisfy themselves as to the existence of disablement, the need for supervision, and the effectiveness of that supervision when it is actually provided.

11. As regards "guidance" I think that there can be little doubt as to what that word means in the context of section 73(1)(d). I think that it is enough to say that guidance is the act of leading or directing the claimant to his destination, or along particular parts of the route to his destination, by the use of physical contact or signs or the spoken word.
12. For the foregoing reasons the claimant's appeal fails and my decision is in paragraph 1 above.

(Signed) R J C Angus

Commissioner

(Date)