UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CSDLA_946_2001 (18 April 2002)

 


DECISION OF SOCIAL SECURITY COMMISSIONER

Commissioner's Case No: CSDLA/946/01

1. My decision is that the decision of the tribunal given at Glasgow on 19 February 2001 is erroneous upon a point of law. I set it aside. I remit the case to a freshly constituted appeal tribunal for a rehearing.
2. This case came before me for an oral hearing on 16 April 2002. The claimant was represented by Mr Sweeney of Advice Works, Paisley. The Secretary of State was represented by Miss Stirling, Advocate, instructed by Miss Ferrier, Solicitor, of the Solicitor to the Advocate General.
3. The claimant has appealed to the Commissioner against the decision of the tribunal which is recorded at page 94 and which was to the effect that the claimant was to be awarded the lowest rate of the care component from 29 October 1999 to 26 October 2003. The grounds of appeal are set out at pages 97 and 99 and are related to the tribunal's application of s.73(8) of the Social Security (Contributions and Benefits) Act 1992. As can be seen from a submission by the Secretary of State at pages 115-117, the Secretary of State supports the appeal. That support was confirmed at the hearing by Miss Stirling. I am persuaded that the decision of the tribunal errs in law and must be set aside.
4. The tribunal found the following facts related to the claimant's walking capacity.

"On most days she lacked the energy even to get out of bed and spent most of the hours of such days there. Even on those days however she could get out of bed to go to the toilet when that was necessary and carry out all the procedures there without assistance from another person. She had not the energy or concentration on those days to reasonably attend to the preparation of cooking a labour intense traditional meal within the meaning of the Regulations. When she had sufficient energy to go outdoors she could walk at least 50 metres slowly in about a minute with no stops, without the onset of any sensation that could be described as severe discomfort and would not suffer significant consequences such as having to go to bed for long periods, though to walk further on such days might have such consequences."

In giving reasons for their decision, the tribunal said:-

"As far as the mobility component is concerned it seemed to the tribunal looking at the evidence as a whole, including the clinical findings of the EMP and the claimant's own evidence clarified today that she was capable of walking on some days when she had the energy at least 50 yards or metres slowly, without the onset of severe discomfort and without severe consequences ensuring of having to be in bed for several days. It might be the case that had she to walk further, such as the distance opined by the EMP there might be the consequences we have just described. On most days however, the claimant told us that she lacked such energy and was so weak that she had to spend all day in bed. On those days of course the claimant would not be capable of walking even the 50 yards or metres but on the other hand it seemed to us that she would not be capable of taking advantage of enhanced facilities for locomotion and this is an additional condition for the award of the mobility component at either of the rates. Similarly she might lack the concentration to find her way about in unfamiliar surroundings but she could not actually take advantage of enhanced facilities for locomotion. On those days in which she could do, she would be capable in our view on the history of finding her way about reasonably without anyone else to accompany her and give her supervision or guidance within the meaning of the Regulations. On those days when she could take advantage of the enhanced facilities for locomotion we cannot find that she would be virtually unable to walk, or as one Commissioner has put it for all practical purposes unable to walk.

5. Miss Stirling, in her submission to me, submitted that the tribunal erred in law because of a failure on their part to make a specific finding as to whether or not the claimant's condition of chronic fatigue syndrome was a physical or mental disablement. This was crucial, as, in relation to the higher rate of the mobility component, physical disability was an essential prerequisite. Mr Sweeney did not dispute that submission. I accept it.
6. In addition, the basis for the tribunal's decision appears to have been that on days when the claimant was virtually unable to walk, she would not be able to take advantage of enhanced facilities for locomotion. Further, on the days when she was capable of taking advantage of enhanced facilities for locomotion, she was not virtually unable to walk. The tribunal, in these circumstances, appear to have approached their decision by splitting into separate compartments times when the claimant was virtually unable to walk and times when she was not. They then reached a conclusion that she did not satisfy the conditions for entitlement upon for the two separate and distinct reasons set out by them. That approach, in my view, errs in law. The tribunal, if they were satisfied that the claimant suffers from a physical disablement, required in the first place to determine whether the claimant satisfied the conditions for the higher rate of the mobility component. Apparently, as I have indicated, it was their view that there were days when she satisfied the conditions of s.73(1)(a), and other days when she did not not. In these circumstances, when applying s.73(1)(a), they required to consider whether, for the material period, the claimant was throughout virtually unable to walk. The approach required for that purpose is a long-standing one which was set out in R(A)2/74 paragraph 35. It involves taking a broad view of the position over the material period and reaching a conclusion as to whether the conditions are satisfied or not, even when as a matter of fact they are not satisfied on every single day throughout the material period. It is only when that is done that s.73(8) would fall to be applied. This they did not do. If the case had been approached on that basis, s.73(8) would appear to have little application.
7. It was submitted by both parties that, in any event, the circumstances in this case did not reach the extremities for which s.73(8) was held to apply in paragraph 10 of R(M)2/83. For myself, I am not persuaded that the position is as extreme as expressed by the Commissioner in that case, but as, in my view for other reasons, the tribunal erred in their approach, it is not necessary for me to express any concluded view thereon.
8. I should perhaps add that the tribunal made the same error identified in respect of the higher rate of the mobility component in their application of s.73(8) in their treatment of the lower rate of the mobility component.
9. The case goes to a freshly constituted tribunal. That tribunal will require to make a finding as to whether the claimant, in relation to the higher rate of the mobility component, suffers from a physical or mental disablement. Miss Stirling, in her submission to me, referred to two cases – CSDLA/265/97 and CDLA/1020/97, which the fresh tribunal should have regard to. If the tribunal find that the claimant suffers from a physical disablement, they should make a decision as to whether or not she is virtually unable to walk. The broad base for making that decision, if they reach the conclusion that she satisfied the conditions on some days and not on other days, they should apply R(A)2/74. If they reach a conclusion on that basis, it does not seem to me that there is much room for the application of s.73(8). If s.73(8) is not put in issue before them by either of the parties, it would not be necessary for them to deal with it. In relation to the lower rate of the mobility component, if weakness, whether caused by either a physical or mental disablement, in effect restricts the claimant's capacity to take advantage of the faculty of walking out of doors, then it may well be that guidance or supervision would not, in the event, enable her to take advantage of the faculty of walking because she would be prevented from doing so for other reasons. The tribunal should approach the case in that way. Although the tribunal whose decision I have set aside made an award of the lowest rate of the care component, the tribunal will require to apply themselves, as this is a rehearing of the whole case which they are conducting as to what conditions, if any, in respect of the care component, she satisfies. If the tribunal are minded to make an award for a limited period, they should set out the basis upon which that limit is fixed. I have not been able to find, nor have I been directed to anything in the statement of the tribunal whose decision I have set aside, any indications as to why they restricted the award. In these circumstances, that limited award is an error in law on the part of that tribunal and the tribunal who are now to hear the case should avoid such a similar error.
10. The appeal succeeds.

(signed) D J MAY QC

Commissioner

Date: 18 April 2002