The Social Security and Child Support Commissioners
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"The appellant is aged 33. She is profoundly deaf and has been so from birth. Her native language is not English but rather British Sign Language. She has virtually no speech. She cannot lip read. She is able to communicate effectively by sign language but has a very limited understanding of written English. For example she does not read newspapers or magazines at all. Only with some considerable difficulty can she follow subtitles in TV programmes. The appellant thus has considerable communication difficulties."
Although the Tribunal have made findings in respect of the claimant's literacy it has at no time been suggested in the case that the claimant suffers from any mental disablement and that was reiterated before me by Mr Oliver.
"4. The appellant reasonable requires assistance with communication in dealings both in speech and writing with official bodies. She also requires some degree of assistance with communication with regard to all bills and other paper work. Likewise in regard to understanding news. To some extent she requires assistance with shopping. She is able to go on public transport for example buses on her own. She requires assistance in all dealings with the schools and social activities connected with these.
5. The appellant also has eczema but this does not result during the currency of the present claim in any significant care needs. She also has some degree of pain and tiredness in her legs, the diagnosis of arthritis suggested by the appellant herself has no medical confirmation. It has not been substantiated by x-rays nor is it spoken by her GP in any report."
"So far as care is concerned, applying the Halliday case referred to above, we take the view that the appellant reasonably requires attention in connection with the bodily function of communication. We consider that she requires such attention in order to live a reasonably normal life, including social activities. We have listed what we consider to be the principal activities of normal life in the appellant's case where communication is needed in our findings of fact above. We consider that averaging matters out over say a week, these needs amount only to attention in connection with the bodily function of communication for a significant portion of the day. In our view, they are not sufficiently frequent to qualify the appellant for an award of the middle rate of the care component. We do not consider that they amount to frequent attention throughout the day. Thus the lowest rate of the care component is the appropriate one for the appellant's situation and we make an award of that component."
"If the tribunal were of the opinion that the claimant's needs were variable (and it does indeed appear that this was the case), then the frequency of pattern of the needs should have been established. I submit that the conditions for DLA do not need to be satisfied on every day for there to be an award and averaging the picture over a period of a week would give an artificial view of the situation."
"The appellant can go on public transport on her own. She can also read street signs to some extent although she would have difficulty in asking directions. She would however be able to write down simple requests and show them to people if required as she does this in regard to shopping or clothes if she has no interpreter present."
"So far as the mobility component is concerned we have carefully considered the possibility of an award of the lower rate. Given that the appellant can to some extent recognise street names and can write instructions or directions down, also that she can use public transport unaccompanied, we take the view that the appellant's communication difficulties are not sufficiently serious for us to hold that she reasonably requires guidance or supervision even when using unfamiliar routes. For the sake of completeness although the appellant's representative did not raise the point, we also take the view that the somewhat increased risk of road accident to a deaf pedestrian would not in out view be sufficient either to qualify the appellant for an award of the lower rate of mobility component."
18 The written grounds of appeal put the claimant's assertion as to why the Tribunal erred in law as follows:
"As to the mobility component, I am at a loss given the Tribunal's acknowledge [sic] at my difficulty with reading street signs or obtaining help from others and my increased risk of road accidents to understand how the tribunal came to the view that I am not entitled to the lowest rate mobility component."
"In that decision (at paragraph 11) the Commissioner accepted a submission on behalf of the adjudication officer "that an inability to ask for directions does not, by itself, demonstrate a need for supervision". That may well be so but of course sub-paragraph (d) of section 73(1) refers to "guidance". I would have thought that that particularly applied to the need to ask for directions. Mrs Payne on behalf of the claimant pointed out that, because of the indistinct speech of the claimant a stranger being asked for directions would not understand and might even think that the claimant was inebriated."
"I submit that supervision in terms of the mobility component cannot [sic] determined with reference to the likelihood of danger occurring through the claimant being unable to hear traffic. Supervision given under such circumstances is to be considered under the hearing of the care component. I further submit that the help with communication when out walking is not help to take advantage of the faculty of walking (CDLA/11491/95). I further submit that an inability to ask for directions does not demonstrate a need for supervision when out of doors (CDLA/240/94). The reasoning of the tribunal would therefore appear to be in error of law but this is at no cost to the claimant. In respect of the mobility component, in order to qualify, the claimant must prove on the balance of probabilities that supervision is a pre-requisite for her exercising the power of walking (CDLA/2364/95). I submit that it must be apparent from the evidence that the claimant's ability to take advantage of the faculty of walking is extended where guidance or supervision is provided. In the case of the deaf person, there is nothing to suggest that guidance or supervision is a pre-requisite for her taking advantage of the faculty of walking. The claimant can do this perfectly well. The person standing by to assist with communication is not exercising guidance or supervision to enable the claimant to extend her ability to take advantage of the faculty of walking."
D. J. May QC
10 September 1998