UK Social Security and Child Support Commissioners' Decisions

 


THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case no: CDLA 3607 2001

SOCIAL SECURITY ACTS 1992 - 1998

APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner David Williams

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal.
2. The claimant is appealing, with my permission, against the decision of the Nottingham appeal tribunal on 4 April 2001. The tribunal's decision was that the appellant is not entitled to either component of disability living allowance from and including 22. 6. 2000.
3. For the reasons given below, that decision is erroneous in law. I set it aside. I refer the case to a freshly constituted tribunal to determine the appeal in accordance with this decision (Social Security Act 1998, section 14 (8) and (9)).
4. I granted permission to appeal specifically to consider the issue about the attention needs said to arise from the appellant's illiteracy. I indicated in the grant of permission that I found none of the other grounds of appeal, in particular those relating to the mobility component, persuasive. The solicitors for the appellant sought to dissuade me from that view, but I do not need to deal with it further as I am allowing the appeal in any event.
5. The appeal concerns the refusal of a new claim for disability living allowance. The claim form set out a number of care and mobility limitations and reasons for them. One reason was dyslexia. But that was not the real problem. The examining medical practitioner report confirmed that the appellant is totally unable to read or write. This was also confirmed by a letter from a medical practitioner put to the tribunal. This commented:

"On appearance he gives the impression he may have mastered the basic skills of reading and spelling, however at the time of testing he was found to be illiterate. He was unable to read or spell a single word...Since then his illiteracy and comprehension have not changed."

The evidence of illiteracy was added to other evidence to support a claim for the lower rate of the mobility component (because there was other evidence that he could not or would not ask a stranger for help), and for the appellant's care needs.

6. In its statement the tribunal comments (paragraph 12) "[The appellant's] illiteracy is not a ground on which to justify an award of disability living allowance." The appellant's representative argued that the tribunal had not addressed the right question. The tribunal should have taken this into account as part of its assessment of the attention needs of the appellant. The same point could be made about the assessment of the lower rate of the mobility component, but the tribunal dealt with that in another way. It concluded that the appellant was not unable to ask strangers for help, so the illiteracy point did not arise with reference to mobility needs.

The effects of illiteracy

7. The main ground of appeal to the Commissioner was that the appellant had communication needs and the tribunal had not dealt with them properly. It must be the case that a totally illiterate person - one who cannot read or write a single word - has communication needs that an ordinary person does not have. That is obvious in a context such as this, namely seeking to claim disability living allowance using the correct claim forms in the correct way. But there are two further questions that must be answered before these communication needs are relevant to disability living allowance:

(a) are the communication needs part of the attention and supervision needs of the individual for personal care (or mobility); and

(b) are those needs linked to a severe mental or physical disablement?

Put another way, are the results of the illiteracy linked to a relevant cause of that illiteracy? I asked the parties for submissions on these points.

8. For the appellant, it is stated in reply to the first question that the appellant 's illiteracy is caused by a learning disability on which the tribunal had made no findings, and that the other question had not been addressed. The submission for the Secretary of State is:

"... the tribunal erred in law for their apparent failure to make findings as to whether the claimant's illiteracy amounted to either a physical or mental disability or whether it was simply a product of poor education ... In terms of needs arising from illiteracy the claimant has stated that he must have help with the completion of forms and with having his correspondence read to him ... In the case of a deaf person [whose first language is British Sign Language] help is generally needed with interpreting written English into Sign Language. In this scenario the Commissioner has accepted that it does not follow that assistance with the interpretation of the written word amount to attention in connection with the bodily function of hearing. The Commissioner goes on to say in CSDLA 867 1997:

" ... the interpretation by the claimant of what is written on the page is related to the cognitive function being able to interpret writing rather than the bodily function of hearing".

In my submission the same principal (sic) applies to the claimant who is unable to read or write through illiteracy."

9. I do not fully accept the submission from the secretary of state's representative. It confuses illiteracy with the causes of illiteracy. But I agree that the tribunal has erred in failing to deal fully with the issues arising from the total illiteracy of the appellant. They were expressly put in issue in the appeal. It would appear that the appellant, who is 52, has spent all his life in Britain, within a society with a universal compulsory education system to which he should have been subject for at least nine or ten years. There are undoubtedly people with limited abilities to read and write because of a failure of that system. But those who are totally illiterate (rather than those with very limited literacy skills) solely because of a failure of that system are exceptional. More often there is some other cause, perhaps a physical or mental disablement or impairment of the individual. The tribunal should have considered this and not confined itself to dismissing illiteracy as not of itself a disability. It is not a physical or mental disablement of itself; any more than the inability to swim or sing are disablements. It is an absence of personal skills. The absence of that skill may be evidence of disablement. The tribunal did not decide this. I must allow the appeal for that reason.

Direction to the new tribunal

10. The new tribunal must first decide if the appellant has any relevant disablements. If it finds disablement, the tribunal should then consider whether there are any needs of a kind relevant to disability living allowance linked to that disablement. The test for the link in section 72 of the Social Security Contributions and Benefits Act 1992 is: " he is so … disabled … that". The test in section 73 is that "he is suffering from physical disablement such that…". Until disablement is identified, this question cannot be fully answered, as it depends on that link. In considering this, the tribunal may be assisted by the views of the Commissioner in CSA 721 2000, in which the Commissioner considered that there could be relevant care needs where a person who was pre-lingually deaf had, as a direct result of that deafness, an inability to comprehend or write text with meaning. An analogy can also be drawn to the limitations on someone who is totally blind. The care needs of a blind person have been discussed at length, not least in the House of Lords in Mallinson v Secretary of State [1994] 1 WLR 630 (though in that case the main need was for guidance, which is not relevant here).
11. The tribunal rehearing this appeal is directed to consider whether, on the facts of this case, there are needs within the terms of the statutory tests for the care or mobility components linked to a relevant physical or mental disablement. Only if there is such disablement, there are such needs and they are linked can an award of allowance be made. As the appeal has to be reheard the appellant and representatives will be able to reargue the other points they have made on this appeal.
12. The tribunal and those who advise the appellant might also consider the context of this appeal. Considerable public resources are devoted to dealing with adult illiteracy. Perhaps the real answer to the appellant's problems, if they are specifically skills problems and not a result of disablement, may lie in the use of those resources. They are available separately from any question of entitlement to a social security benefit.

David Williams

Commissioner

5 March 2002

[Signed on the original on the date shown]