Hewitt v. Chief Adjudication Officer  UKSSCSC CDLA_15997_1996 (29 June 1998)
CA (Simon Brown,Ward and Schiemann LJJ) CDLA/15997/1996
Mobility component - persons suffering from porphyria causing skin to blister when exposed to daylight - whether virtually unable to walk
Both claimants suffered from porphyria which is a complaint which causes the skin to blister when exposed to daylight. In both cases tribunals found that, whilst the claimants could physically walk, their condition meant that their "ability to walk out of doors [was] so limited as regards the distance over which or the speed at which or the length of time for which or the manner in which [they] could make progress on foot without severe discomfort that [they were] virtually unable to walk" within the meaning of regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991. The Commissioner allowed the adjudication officers' appeals and held that the claimants were not entitled to the mobility component of disability living allowance because, for regulation 12(1)(a)(ii) to apply, "severe discomfort" limiting the ability to walk must be brought on by the actual physical act of walking. The claimants appealed to the Court of Appeal.
Held, dismissing the appeals, that:
- the central focus of the regulation was the ability to move on foot: Lees v. Secretary of State for Social Services  1 AC 930;
- (per Simon Brown LJ) the reference to the "ability to walk out of doors" was contained in the regulation because the physical problems of walking out of doors were generally greater than those indoors;
- the regulation was not directed to the fact of being out of doors but to the physical act of walking;
- the "severe discomfort" to which regulation 12(1)(a)(ii) referred must therefore arise from the physical act of walking itself.
Mr. R. Drabble QC (instructed by Richard Poynter, London N8) appeared on behalf of the Appellant.
Mr. J. R. McManus (instructed by the Solicitor to the Departments of Social Security and Health) appeared on behalf of the Respondent.
LORD JUSTICE SIMON BROWN:
Both appellants suffer from porphyria, a condition which effectively precludes their exposure to daylight. The question raised by these appeals is whether, on that account, their "ability to walk out of doors is so limited, as regards the distance over which... or the length of time for which . . . [they] can make progress on foot without severe discomfort, that [they are] virtually unable to walk", within the meaning of regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991, as amended ("the Regulations"). If it is, their appeals succeed and they qualify for the higher rate of the mobility component of disability living allowance.
Their appeals are brought against decisions of a Social Security Commissioner, Mr. Goodman, dated 19 December 1996, in each case allowing the adjudication officer's appeals against decisions of the respective Disability Appeal Tribunals. Mr. Hewitt had succeeded before the Manchester Tribunal on 17 April 1996; Mr. Diment before the Sutton Tribunal on 10 November 1995. In Mr. Hewitt's case the tribunal's findings of fact were these:
"The moment the appellant steps into the daylight his skin breaks out into itching blobs which turn into blisters giving second degree burns equivalent. We find that this immediately causes severe discomfort. The appellant can physically walk. He suffers from the rare disease of erythropolectic protoporphyria and no precautions can prevent his skin blistering when exposed to daylight."
The reasons for this decision were these:
"The appellant can physically walk. His physical condition as a whole is such that his ability to walk out of doors as regards the distance over which or the speed at which or the length of time or the manner for which he can make progress on foot is nil, without severe discomfort and thus he is virtually unable to walk."
In Mr. Diment's case, the Tribunal's central findings of fact were these:
"As a result of the claimant's condition he is unable to go out into the daylight unless he has total protection. The effect of daylight is to cause a blistering to the claimant's skin which leaves permanent scarring. The blistering and irritation to the claimant's skin can start within 5 minutes of him leaving his own home causing him considerable discomfort and making him run for cover from daylight.
The claimant has to have blood transfusions every month and his eyes have also been affected by the sunlight causing them to be ulcerated.
The Tribunal are satisfied that because of the claimant's condition he is virtually unable to walk because of the severe discomfort he suffers in the act of walking when exposed to daylight.
The Tribunal find that it is not reasonable that his mobility should be restricted to night time hours but the walking test must be applied in normal circumstances namely in the day time."
The Social Security Commissioner allowed the adjudication officer's appeals on the basis that, to qualify under this regulation, the "severe discomfort" to which it refers must be brought on by the actual physical act of walking, not, as here, merely by the fact of being out of doors. Is that the correct interpretation of regulation 12(1)(a)(ii)? That is the issue before us.
With that brief introduction, let me at once set out the relevant statutory provisions. First, the material parts of section 73 of the Social Security Contributions and Benefits Act 1992 which governs entitlement to the mobility component of disability living allowance. Section 73(1):
"... 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 5 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...
(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."
Paragraph (d) was introduced into the legislation specifically to reverse the effect of the House of Lords' decision in Lees v. Secretary of State for Social Services  1 AC 930, a case to which I shall shortly come.
"... circumstances may be prescribed in which a person is to be taken to satisfy or not to satisfy a condition mentioned in subsection (1)(a)... above."
"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."
Next, regulation 12(1)(a) of the regulations, which, pursuant to section 73(5), prescribe the test of inability to walk or virtual inability to walk found in section 73(1)(a). Regulation 12(1):
"A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) of the Act (unable or virtually unable to walk) only in the following circumstances -
(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to place of, or nature of, employment -
(i) he is unable to walk; or
(ii) his ability to walk out of doors is so limited, as regard the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk; or
(iii) the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health."
Before turning to the rival arguments on the appeal, it is convenient next to consider the decision in Lees on materially identical regulations, the decision now in effect reversed by section 73(1)(d) (albeit those who qualify on this ground receive only a lower rate of benefit). Miss Lees was blind and suffered from impairment both in her ability to orientate herself and in her balance. The effect of this was that, although she was capable of the physical act of walking both indoors and outdoors, she could not get from point A to point B outdoors without an intelligent adult pilot to guide her. Rejecting her claim that she was "virtually unable to walk" within the meaning of what is now regulation 12(1)(a)(ii), Lord Scarman, giving the single reasoned speech in their Lordships' House, said at pages 935E-936:
"... the section [now section 73 of the 1992 Act] read as a whole does appear to emphasise physical difficulty in the act of walking. However, I accept that the crux of the matter is to be found not in the section but in the interpretation to be put upon regulation 3(1)(b) and (c) [now regulation 12(1)(a)(ii) and (iii)].
The first point to notice in this paragraph of the regulation is one upon which Mr. Drabble understandably lays great stress. It directs attention to the applicant's 'physical condition as a whole'. The determinative words, however, are in sub-paragraphs (b) and (c). They relate to physical limitations. Sub-paragraph (b) refers to a limit upon ability to 'make progress on foot', while sub-paragraph (c) refers to the exertion of walking and its likely effect on health. Mr. Drabble would have us construe the ability 'to make progress on foot' as an ability to advance from point A to a desired destination B. The context does not admit of such a meaning. The words clearly refer to the physical ability to move on foot, not to the direction of that movement.
Mr. Drabble seeks to counter this view of the meaning of the regulation by a submission which at first sight I found very persuasive. He bases it on the (accurate) observation that sub-paragraph (b) accepts that the allowance is payable where there is an ability to walk but the ability to do so out of doors is so limited that the claimant is virtually unable to walk. The allowance is, he submits, available for those who cannot walk out of doors unaided. A person who lacks the ability to direct his walking is, therefore, eligible: He can walk only with the aid of a guide. I reject the submission for two reasons. First, the language of the sub-paragraph, as I have already explained, indicates, to my mind very clearly, that the disability which has to be shown to exist is in the physical movement on foot. Secondly, the submission goes too far. It is not suggested that blindness itself without further disability constitutes inability to walk. Yet blind people cannot walk out of doors unaided."
Mr. McManus, for the respondent, contends that that decision strongly supports the Commissioner's decisions in the present cases. If "the disability which has to be shown to exist is in the physical movement on foot", he submits, these appellants can no more demonstrate that than could Miss Lees. Their difficulty, submits Mr. McManus, is not in walking as such; rather it is in being out of doors in daylight.
Mr. Drabble QC for the appellants, however, argues that Lees was not concerned with the issue arising here, the issue as to whether the severe discomfort which a person suffers from whilst walking out of doors has to be brought on by the act of walking itself. Lees decided only that, if a claimant can make progress on foot outdoors, it matters not whether the movement can be purposefully directed. He submits that the fact that these appellants cannot do anything out of doors because of their condition does not lessen the fact that they cannot walk out of doors.
I should observe at this point that there is no question of these applicants not being able to benefit from "enhanced facilities for locomotion" under section 73(8). As was agreed before the Commissioner, they would be able to use the benefit to pay for transport with specially adapted solar screen windows.
Mr. Drabble relies upon the literal wording of the regulation. The prescribed test of virtual inability to walk is, he submits, quite plain. It is whether the claimant's physical condition as a whole is such that he can make progress on foot out of doors without severe discomfort. It is not concerned with ability to walk simpliciter. A claimant qualifies for this benefit unless he is able to walk out of doors without severe discomfort. That is something these appellants cannot do, at any rate by day.
The purpose of the benefit, he submits, is to provide financial assistance to those who, unable to make the desired journeys outside themselves, need and can make use of alternative means of transportation (or, in the case of those like Miss Lees, need, in the language of section 73(1)(d), "guidance or supervision from another person"). These appellants need and can make use of alternative means of transport. They, too, should accordingly qualify.
Sympathetic though one is towards these appellants, and skilfully though Mr. Drabble has argued their case, I find myself unpersuaded by it. I recognise that Lees did not directly address or decide the present issue. Plainly, Miss Lees was able to move around out of doors. The question there was whether that particular movement constituted a sufficient ability to walk within the meaning of the regulation. Here, the question is whether an inability to do anything out of doors, at any rate by day without very extensive protective wear, constitutes a virtual inability to walk. But I do not accept Mr. Drabble's submission that Lees provides no assistance whatever upon the present appeals. The whole emphasis of Lord Scarman's judgment was upon the concept of "the physical ability to move on foot". That, he observed more than once, was the central focus of the regulation. True it is that in Lees that focus was contrasted to "the direction of that movement". But here I would suggest that the analogous contrast is with the time and place of the physical movement, whether indoors or outdoors, by night or by day. I recognise, of course, that sub-paragraph (ii) of regulation 12(1)(a) directs attention to "the ability to walk out of doors". But this, I have no doubt, is because the physical problems of walking out of doors are generally greater than those indoors. Outside one encounters kerbs, gradients, surface unevenness, not to mention greater distances. It is clearly fairer to judge walking ability by reference to these sterner tests. But it does not follow that an inability to do anything out of doors, even to be out of doors, of itself brings one within the regulation. In my judgment, the language of regulation 12(1)(a), taken as a whole, points strongly to the physical difficulty having to be in the act of walking outside, and not merely in being outside. Consider within sub-paragraph (ii) the combination of the phrases "ability to walk out of doors", "make progress on foot" and "virtually unable to walk", all apparently directed to the claimant's locomotive powers. Consider, too, the other limbs of regulation 12(1)(a): sub-paragraph (i) requires a total inability to walk, whether indoors or outdoors, by day or by night; sub-paragraph (iii) clearly links the effect upon health directly to the act of walking.
If Mr. Drabble's arguments were sound, one would arrive at the surprising result that Mr. Hewitt, whose ability to make progress on foot out of doors is "nil", is not thereby "unable to walk" but rather "virtually unable to walk", even though he can walk perfectly well indoors. As for Mr. Diment, he would be "virtually unable to walk", even though the discomfort he suffers out of doors is such as to "make him run for cover from daylight".
I conclude that the "severe discomfort" to which the regulation refers must indeed arise, as the Commissioner held, from the physical act of walking itself. Only thus can it sensibly and properly be said, in the concluding words of sub-paragraph (ii) itself, that the claimant is "virtually unable to walk". I would accordingly dismiss these appeals.
LORD JUSTICE WARD:
Whether or not the appellants are entitled to the higher rate of mobility allowance depends upon whether their unfortunate condition is such as to prevent their being out of doors, thus not having the opportunity to walk out of doors, or whether it must prevent their physical ability out of doors to put one foot in front of the other. If the appellant is virtually unable to be out of doors, whether stationary or mobile, for more than a minimal period of time without suffering severe discomfort, it must also mean that, once he is out of doors, he is unable to make progress on foot without suffering the same discomfort and, accordingly, his ability to walk outside is so limited in time that he must be classified as virtually unable to walk. That is the logic of Mr. Drabble QC's submission, a logic which, on one view, seems faultless. It does, however, drive one to the conclusion that the man who is able, indeed compelled, to run from his front door to his solar protected motor car, is at the same time virtually unable to walk. It seems then that the logic of the counter argument is equally compelling.
It seems to me that logic is not the tool required to construe these or, from my limited knowledge of them, any social security regulation. One must instead look at the ordinary meaning of the words and the legislative purpose. Here, regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991 is a deeming provision which determines whether a person is to be taken to satisfy the conditions mentioned in section 73(1)(a) of the Social Security Contributions and Benefits Act 1992, which gives an entitlement to the mobility component of a disability living allowance to a person who "is suffering from physical disablement such that he is either unable to walk or virtually unable to do so". That condition is satisfied, according to regulation 12, in two sets of circumstances. The second is where he has suffered amputation, a condition obviously affecting the ability to move on foot. The other and first condition is prescribed in the regulation as "his physical condition as a whole". That is wide enough to cover and include the horrid diseases from which the appellants sadly suffer.
The condition must, however, affect him in one of three ways. Dealing with the first and the third of the prescribed ways, his physical condition as a whole must be such that: "(i) he is unable to walk . . . (iii) the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health." These two conditions are quite clearly confined to the physical act in the necessary movement of the feet which constitute walking. The third is prescribed in the regulation as follows: "(ii) his ability to walk out of doors is so limited, as regard the distance over which or the speed at which or length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk."
I find the following points significant. Firstly, and not necessarily in order of importance, in section 73(8) of the Act, it is prescribed 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." The use of those concluding words involve, it seems to me, the use of locomotive powers, involves the sense of movement which is implicit in the act of walking.
Secondly, regulation 12 is drawing the distinction between, in sub-paragraph (i), being unable to walk, and in sub-paragraph (ii) being virtually unable to walk. Thirdly, therefore, on the ordinary meaning of the word "walk", that means moving on foot. It should carry the same meaning wherever it is used. Fourthly and specifically with regard to this particular case, what has to be shown is that the appellant's ability to walk out of doors is so limited as regards the length of time for which he can make progress on foot, without suffering severe discomfort. If the intention was to confer the benefit on one who suffers from being outside, the regulation could easily have said so. Instead, it uses the phrases "his ability to walk out of doors" and to "making progress on foot". (my underlining)
I am therefore constrained to conclude that, sympathetic though I am to the appellants' plight, the regulations must be aimed at, to borrow phrases from the speech of Lord Scarman in Lees v Secretary of State for Social Services  AC 930, "physical difficulty in the act of walking", "the physical ability to move on foot", and "a limitation upon his physical capacity to move himself on foot".
In my judgment, the answer to the question I posed at the beginning of the judgment is that the regulations have to be construed to being directed at and confined to the act of walking, not the fact of being out of doors. I would therefore also dismiss the appeal.
LORD JUSTICE SCHIEMANN:
I agree with the result proposed by my Lords, though I do so with some reluctance. The result of the judgment in this appeal is that those suffering from the type of condition from which the appellants suffer will not qualify for help. Mr. McManus, who appeared for the Secretary of State, has not been able to suggest any policy reason why they should be discriminated against in this way. It is clear that, if an applicant suffers from a physical condition which makes it all but impossible for him to move his legs, for instance as a result of breathlessness, he will be able to receive the relevant part of the allowance. This is so even though there is nothing wrong with his legs as such. The end result of the disability is that he cannot go out shopping etc and lead a normal life.
Parliament clearly wished to make life easier for such people. This was presumably because it wished to compensate them for not being able to receive the benefits which can accrue if one is able to move one's legs.
In the present case, the disability does not inhibit the movement of the legs but does have the effect of preventing the appellants from receiving the same benefits. However, Parliament might have authorised the giving of financial help to anyone who, for whatever reason, was inhibited from shopping, etcetera. Parliament did not do so. It limited the help to those who were inhibited by reason of their physical condition as a whole. So much is common ground. The question before us is whether there is in the regulation a further limitation to those whose ability to move their legs is inhibited by reason of their physical condition. Construing the regulation naturally, I agree with what my Lords have said, that they do have that effect. In those circumstances, I also agree that these appeals must be dismissed.
Order: Appeal dismissed; order nisi against legal aid fund with nil contribution; legal aid taxation; application for leave to appeal to House of Lords refused. (Order not part of the judgment of the court.)