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[1999] UKSSCSC CDLA_2643_1998 (04 March 1999)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CDLA/2643/98

SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL FROM THE DISABILITY APPEAL TRIBUNAL UPON A QUESTION OF LAW

DEPUTY COMMISSIONER: J N WRIGHT QC

DECISION OF SOCIAL SECURITY COMMISSIONER

My decision is to allow this appeal and to substitute for the decision of the tribunal a decision that the claimant is entitled to an award of the mobility component of Disability Living Allowance at the lower rate in respect of the period from 11 October 1996 until 10 October 1998.

The claimant suffered from a number of conditions, including a condition involving fits or seizures akin to (but not diagnosed as) epilepsy. She had previously received the care and mobility components of Disability Living Allowance, but her application for renewal was refused, in all respects, by the adjudication officer, a decision confirmed on review by another adjudication officer. Her appeal to the tribunal, which was held on 2 December 1997, was upheld to the extent of awarding her the care component at the middle rate on the basis of day-time supervision. The tribunal refused her appeal in relation to the mobility component, both as to the higher and the lower rates. She appeals with leave of the tribunal chairman against that decision in so far as it relates to the lower rate mobility component. The adjudication officer opposes that appeal, but there is no appeal in relation to the award of middle rate care component.

The day-time 'supervision' test for the care component - Section 72(1)(b)(ii) of the Social Security Contributions and Benefits Act 1992 is:-

"[She] is so severely disabled physically or mentally that, by day, [she] requires from another person ................continual supervision throughout the day in order to avoid substantial danger to [herself] or others."

The test for the lower rate mobility component - section 73(1)(d) - is:-

"[She] is able to walk but is so severely disabled physically or mentally that, disregarding any ability [she] may have to use routes which are familiar to [her] on [her] own, [she] cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time."

In its statement of material facts and reasons for its decision, the tribunal narrated that the claimant ordinarily suffered from five or six fits each day and needed reassurance and looking after when she had a fit. I need not rehearse their assessment of her physical walking ability, leading them to reject the claim for higher rate mobility component, or their assessment of night-time supervision requirements, which led them to reject that part of the claim also. The tribunal dealt with the lower rate of mobility component as follows:-

"It was argued for the appellant that she needed supervision when walking because of her propensity to having fits. In the opinion of the tribunal the appellant's ability to walk was not affected by the fits; her requirement, in this regard, was for somebody to be present to help cope with a fit if it occurred. As such this was a matter which fell to be considered within the ambit of the care criteria. Accordingly, the tribunal did not consider that an award of the mobility component at the lower rate was appropriate."

They dealt with the middle rate care component as follows:-

"On the other hand, the tribunal was satisfied that in her normal daily life about the house, and when getting about outside the house, the appellant was at such frequent risk of fits or seizures with their attendant risk of falling, or other accident, that she met the "day-time criteria" in that she did require continual supervision during the day to avoid substantial danger. The tribunal had particularly in mind the risk to the appellant if she was walking about outside her home, and in the vicinity of traffic; if she was trying to do cooking; if she was using other machinery; or if she was going up and down stairs. It was accordingly appropriate to award the middle rate of the care component from the relevant date which was 11 October 1996."

The tribunal went on to explain that they were only making the award for a period of two years, because the claimant's condition might change.

In their grounds of appeal, the claimant's representatives submit that the tribunal's view that the requirement for somebody to be present while walking fell only to be considered within the ambit of the care component was erroneous in law. They also argued that the tribunal's reasons were inadequate, because the claimant was unable to discern why her accepted need for supervision failed to satisfy the requirement for the lower rate mobility component. The adjudication officer points to some of the material relied on by the claimant before the tribunal and submits that her position was clear that she needed someone with her when out of doors to assist in the event of a fit. This was to ensure that she was kept safe in the event of a fit and to assist in the aftermath of a fit. The need for assistance was to reduce the risk of danger which could arise in the event of a fit. The supervision referred to in section 73(1)(d) and 72(1)(b)(ii), the tests for lower rate mobility component and middle rate care component, were for different purposes and assistance required by the claimant when out of doors was only relevant under the heading of the care component. There was accordingly no error of law. Although one of the claimant's other conditions was anxiety, it had not been suggested that this affected the position regarding the claimant walking outdoors.

These submissions reflect a divergence of view amongst Commissioners about the relationship between the "supervision" requirement for the middle rate care component and that for the lower rate mobility component where the difficulty arises out of occasional episodes of one kind or another. The claimant can carry out some activity, but is at risk because of the possibility of some episode caused by some physical or mental disability. The grounds of appeal rely on CDLA/52/94, in which the Commissioner stated:-

"It is likely that a claimant who, due to epilepsy, satisfies the condition of 72(1)(b)(ii) and is entitled to the care component of disability living allowance on the ground that he or she "requires from another person.....continual supervision throughout the day in order to avoid substantial danger to himself or others" will also satisfy the condition of section 73(1)(d)."

The adjudication officer, as well as properly pointing to that case, refers to opposing views in CDLA/757/94 and CSDLA/591/97. In CDLA/757/94, the Commissioner rejected the contention that should a claimant refuse to walk out of doors for fear of falling unless there was someone at hand to supervise him, he could rely on section 73(1)(d). In that situation:-

"What prevented him from walking out of doors was the fear that there would be no-one to supervise him in the sense of look after him, if and when he fell. Once given that supervision, he could walk out of doors. But, in my judgment, supervision of this kind is too remote. In the situation postulated, the claimant could go out of doors without the need for supervision, but merely preferred not to......section 73(1)(d) is not concerned with supervision to avoid danger to the claimant; that type of supervision is provided under section 72(1)(d)(ii)."

In CSDLA/591/97 the Commissioner said:-

"The claimant's ability to take advantage of the faculty of walking ceased when he had a migraine attack. A presence to render aid in my view is not the type of supervision which is being referred to. Supervision in the sense of aid when an attack occurs is too remote....there is a clear distinction between supervision in the context of the care component and supervision in the context of the mobility component as the supervision is designed for different purposes."

In C34/98(DLA), a Northern Ireland Commissioner agreed with the view in CDLA/52/94 and said (at paragraph 18):-

"While the purpose of the relevant supervision is to enable the claimant to take advantage of his faculty of walking rather than the avoidance of dangers, supervision to avoid danger may be one of the factors enabling a claimant to take advantage of the faculty of walking."

In my opinion, the way in which the unchallenged decision in relation to the middle rate care component is expressed in this case necessarily involves a need for supervision which qualifies under section 73(1)(d), despite what the tribunal said in the passage specifically addressing that test.

I entirely agree that each of these two provisions has to be applied separately according to its own terms, and a finding of qualification under section 72(1)(b)(ii) related to danger will not ipso facto result in section 73(1)(d) being satisfied. I agree that the provisions refer to supervision for distinctly different purposes. I cannot, however, agree that they are mutually exclusive, and I see no reason why supervision relating to danger might not also qualify as supervision to enable a person to take advantage of physical ability to walk out of doors, provided that the various requirements in section 73(1)(d) are satisfied. In my view (and I think I am differing here from the Commissioner in CSDLA/591/97 and perhaps also the Commissioner in CDLA/42/94), the supervision envisaged in section 73(1)(d) need not have anything to do with extending the claimant's physical walking ability. It assumes he has that ability and it deals with the situation where because of some physical or mental disability, for one reason or another he cannot take advantage of his physical walking ability without assistance. One thing which might prevent him from taking such advantage might be danger when walking alone.

Three parts of the test which appear to me particularly relevant to this kind of case, and to place limits on the application of the provision, are: "cannot"; "supervision" and "most of the time". Use of "cannot" in the test rules out a mere preference to have a companion when walking outdoors ("I would prefer to have someone with me"): the claimant must be found able to say - "I cannot walk outdoors without someone with me". Further, the need is for "supervision", which involves more than mere accompaniment - something in the nature of over-seeing. So "I need someone to accompany me" is not sufficient: it has to be something like "I cannot walk outdoors without someone to keep an eye on me". Then there is the further requirement of "most of the time". So it needs to be, "I cannot walk outdoors without someone to keep an eye on me most of the time".

Applying these limitations, I do therefore agree with the view in CDLA/757/94 and CSDLA/591/97 that if all that is required is assistance upon the actual occurrence of some episode, as opposed to supervision at least most of the time while walking outdoors, the test is not satisfied. As has been explored in other decisions regarding supervision, in many cases, including many cases involving occasional fits, supervision before the episode, as opposed to during and in the aftermath of it, will be of no effect and the test will not be satisfied. Further, the risk may well not be sufficiently serious to bring the case up to the test of necessity.

In the present case, it has to be said that there are passages in the tribunal's reasons which do tend to suggest that the assistance is given when the fit occurs, as opposed to ongoing supervision or "keeping an eye on" the claimant. However, in my view the basis of the decision on the care component involves acceptance of something different. In that connection the tribunal had to decide whether there was a requirement for continual supervision throughout the day in order to avoid substantial danger. In deciding that there was such a requirement, the tribunal particularly referred to the situation when the claimant was walking outdoors. They say that she was at such frequent risk of fits or seizures, with their attendant risk of falling or other accident, that she required such continual supervision. Their references to four situations, including the situation of the claimant walking outdoors, persuade me that what they have accepted in each of these situations was not just attendance when an episode occurs but the need to keep an eye on the claimant while she was in one of these situations. Therefore she required supervision while walking outdoors and could not take advantage of her physical walking ability outdoors without supervision from another person most of the time.

As I have indicated, there is some inconsistency on the matter in the tribunal's reasons but it seems to me in this particular case that if the decision, and therefore the basis for the decision, in relation to the care component is not challenged and stands, the finding there in relation to supervision while walking outdoors must prevail because it involves a finding in fact which must satisfy the test in section 73(1)(d). I should stress therefore that while I have had to consider and express some views on the divergent approaches to this issue, this decision depends strongly on the particular circumstances of this case. Many situations involving occasional episodes will not satisfy the test.

I should mention that I do not think any question of "guidance" arises in this case. I also do not consider that the disregard of the situation while using familiar routes has any particular relevance in this case: the tribunal's finding seems to refer to any walking situation out of doors, familiar or otherwise.

It has been suggested in some of the cases that to award the mobility component in respect of a need for supervision which was also relevant in awarding the care component means awarding benefit twice for the same thing. With respect to that view, it appears to me that Parliament has provided for not just the requirement of care resulting from disability, but also one particular aspect, mobility (or lack of it), and there is no reason why the two should not overlap.

For these reasons, I uphold this appeal. Although I have been advised that the claimant made a renewal claim and has been awarded the middle rate care component from October 1998 until December 2000, I do not consider that I can make a decision which covers a larger period than the period fixed by the original tribunal.

(signed)

J N WRIGHT QC

Deputy Commissioner

Date: 4 March 1999