UK Social Security and Child Support Commissioners' Decisions

[1996] UKSSCSC CDLA_419_1994 (20 March 1996)


 


CDLA/419/1994


Social Security and Child Support Commissioners

SOCIAL SECURITY ACTS 1975 TO 1990

SOCIAL SECURITY ADMINISTRATION ACT 1992

CLAIM FOR DISABILITY LIVING ALLOWANCE

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MR COMMISSIONER D G RICE

Tribunal :
Tribunal Case No :

1. For the reasons set out below, the decision of the disability appeal tribunal ("DAT") given on 27 May 1994 is not erroneous in point of law, and accordingly this appeal fails.

2. This is an appeal by the claimant, brought with the leave of a Commissioner, against the DAT of 27 May 1994.

3. The question for determination by the tribunal was whether the claimant was entitled to the mobility component of disability living allowance. She had been awarded the care component at the lowest rate, and seemingly entitlement to a higher rate was not in issue. In the event, the tribunal, upholding the decision of the adjudication officer, decided that the claimant was not entitled to the mobility component.

4. The claimant complains that she should have been awarded a mobility component at the lower rate. She contends that she fell within section 73(1)(d) of the Social Security Contributions and Benefits Act 1992. Her argument is that she could not go out of doors unaccompanied without risk to herself from falls. There is nothing in this point for the reasons set out in my decision CDLA/757/1994, a copy of which is for convenience attached hereto.

5. Although it was not the subject of appeal to me by the claimant, the adjudication officer now concerned has of her own volition considered whether the tribunal erred in point of law in failing to award the mobility component at the higher rate pursuant to section 73(1)(a) and regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991. She says as follows:-

"7. The tribunal found as fact that the claimant could walk 100 yards in around 7 minutes after which time she is prevented from walking further by severe pain in her left knee. They concluded that she was not virtually unable to walk.

8. I submit that the tribunal erred in law in that they failed to have full regard to the test in regulation 12(1)(a)(ii), namely, the manner of walking and the severe discomfort question. I submit that, given the evidence of the claimant's blackouts the tribunal were obliged to consider these in conjunction with the virtually unable to walk question, and decide whether the frequency of her blackouts were such that they rendered her virtually unable to walk.

9. I further submit that the tribunal failed to give proper consideration to the severe discomfort test ...."

I reject those submissions.

6. As regards the claimant's blackouts, such experiences would normally have absolutely no effect on a claimant's walking ability. Their relevance is normally only to the claimant's need for attention and supervision within section 72. In the present case, even on the basis of the claimant's own evidence that she suffers from blackouts, several times a day at worst and once every few weeks at best, this does not mean that she was prevented from walking. Moreover, in the present instance, the tribunal did not even believe the claimant's own evidence. Having heard and seen her, they concluded as follows:-

"The tribunal were not satisfied that they had been given a reliable account of the claimant's blackouts and panic attacks. She said that she had last fallen in August but had the previous weekend had, she said, 2 attacks during at least one of which she said she had collapsed. She spoke of being able to travel by public transport from her home in Eccles to her daughter's home in Worsley - all of which the tribunal felt was not consistent with unpredictable panic attacks and blackouts. The claimant's representative stated that the anxiety attacks were brought on by being alone but the claimant said she had not been out alone since December 1993".

The tribunal were entitled to reject the claimant's evidence, as she was, in their view, unconvincing. But in any event, except in the most extreme cases of blackouts occurring whenever a claimant walks, and then when he or she recovers occurring more or less immediately thereafter, could it be said that this condition prevented the claimant from walking?

7. As regards the question of severe discomfort, the tribunal were satisfied on the evidence that the claimant could walk 100 yards before the onset of any pain, and there was no suggestion that the claimants manner of walking was in any way abnormal.

8. In short, I see no respect in which it could be said that the tribunal erred in point of law, and accordingly I have no hesitation in dismissing this appeal.

D.G. Rice
Commissioner

20 March 1996