UK Social Security and Child Support Commissioners' Decisions

[2004] UKSSCSC CDLA_3781_2003 (06 April 2004)

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner achieves no practical success. The decision of the Fox Court appeal tribunal dated 27 June 2003 is erroneous in point of law, for the reasons given below, and I set it aside. However, it is expedient for me to substitute a decision having made the necessary findings of fact (Social Security Act 1998, section 14(8)(a)(ii)). My decision is that the claimant's appeal against the Secretary of State's decision dated 2 October 2002 is disallowed. The decision of the appeal tribunal of 25 September 2001, under which the claimant was entitled to the lowest rate of the care component of disability allowance for the period from 1 September 2001 to 31 August 2006, but not to any rate of the mobility component, does not fall to the superseded on the ground of a relevant change of circumstances with effect from 5 September 2002.
2. There was an oral hearing of the appeal to the Commissioner on 9 March 2004, which the claimant attended with his representative, Ms Mirca Morera of the New Islington & Hackney Housing Association. The Secretary of State was represented by Mr Jeremy Heath of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to both representatives for their submissions. The claimant gave evidence and answered questions from me and from Mr Heath fully and frankly. I was very impressed by the way in which he gave evidence and have no hesitation in accepting it. However, I regret that my conclusion on the facts goes against him.

The background

3. Prior to September 2002 the claimant was entitled to disability living allowance (DLA) under a decision of an appeal tribunal on 25 September 2001. The appeal tribunal made an award of the lowest rate of the care component for the period from 1 September 2001 to 31 August 2006, but decided that the claimant was not entitled to the mobility component from 1 September 2001. In a letter dated 3 September 2002, and received on 5 September 2002, a welfare rights caseworker from the New Islington & Hackney Housing Association asked for a supersession to add the lower rate of the mobility component. It was said that the claimant needed guidance and supervision outdoors most of the time because as a result of his depression and anxiety he got paranoid thoughts leading to verbal or physical confrontations with strangers. More details were given in a DLA claim pack, which also referred to the effects of tinnitus.
4. On 2 October 2002 the Secretary of State made a decision maintaining the existing award of DLA. That decision was not altered following the receipt of a letter dated 22 November 2002 from the claimant's GP. The letter confirmed that the claimant suffered from anxiety, depression, feelings of paranoia, tinnitus and migraines, although he was not on any specific medication for those problems and continued:

"He claims that when he goes outside he frequently feels anxious and paranoid, that people are talking about him which makes him very angry and causes confrontations with others. He says that he needs someone with him to calm him down and to help avoid potentially violent situations and when he is in this anxious state he becomes confused and forgets where he is going."

The letter also stated that the claimant had suffered with aggressive outbursts and as a result of those confrontations he had sustained head injuries twice since the beginning of the year.

The appeal tribunal's decision

5. The claimant attended the hearing on 27 June 2003 with Ms Morera. The appeal tribunal dismissed the appeal. It accepted that through his conditions the claimant had diminished control of his temper and could take offence when none was intended and lash out, that being in an unfamiliar area could heighten the claimant's sense of insecurity, and that he would benefit from a "minder" to try to stop him getting into fights, of which there was an enhanced risk if the claimant was walking in an unfamiliar area. It also found that he had on occasions walked alone in unfamiliar areas. The statement of reasons contained the following paragraphs (I have corrected some typing errors):

"10. In CDLA/835/1997 the Commissioner held that there should be excluded any supervision required to stop the claimant in that case from `going off and getting into trouble' shoplifting and the like. That part of his judgment was set aside by consent in the Court of Appeal. The setting aside by consent does not carry the same weight of authority as a direct decision ie that supervision to avoid shoplifting or supervision was within section 73(1)(d) Social Security Contributions and Benefits Act 1992.

12. The requirement is however that, leaving aside familiar routes, guidance or supervision must be needed most of the time to exercise the faculty of walking. The Tribunal does not think that is the case with [the claimant]. He can exercise the faculty of walking by himself in an unfamiliar [area] whenever he likes. He does not need guidance or supervision in order to exercise that faculty. It is no doubt helpful if somebody is with him in case he loses his temper but that is not inevitable. The Tribunal is not convinced that it would happen most of the time. The presence of another person would be a helpful safeguard but would not in the Tribunal's opinion constitute guidance or supervision within the meaning of the section."

The appeal to the Commissioner

6. The claimant now appeals against that decision with leave granted by the chairman of the appeal tribunal, who happened also to be the regional chairman. When granting leave he made the following comments:

"While the Commissioner will of course consider the ground of appeal raised (insufficient attention to the effect of tinnitus) the claimant did walk in unfamiliar areas. The primary reason for granting leave is that tribunals would be assisted by further light being thrown on the relationship between a propensity towards anti-social behaviour and the lower rate of the mobility component of disability living allowance."

I am not sure that this decision will throw much further light on that difficult issue in general, rather than deal with the particular circumstances of the present case.

7. The first written submission on behalf of the Secretary of State, dated 10 December 2003, did not support the appeal, but not on very convincing grounds. I directed an oral hearing particularly to discuss the issues raised by the regional chairman and another possible error of law. The Secretary of State then made a further written submission, dated 28 January 2004, accepting that the appeal tribunal in paragraph 12 of its statement of reasons may have applied too narrow an interpretation, but submitting that the Commissioner should substitute a decision on the existing findings of fact that the claimant did not qualify for the lower rate of the mobility component.

Did the appeal tribunal go wrong in law?

8. The answer is yes. I would probably not have reached that answer solely on the ground that the appeal tribunal did not mention the effects of tinnitus in the parts of its statement of reasons which I have summarised. The appeal tribunal had mentioned tinnitus as one of the claimant's disabling conditions and its general conclusions could be said to have taken into account the effects of all those conditions. However, I am satisfied that the appeal tribunal did apply a wrong legal test in paragraph 12 of its statement, as Mr Heath agreed at the oral hearing.
9. In paragraph 11(f) of decision R(DLA) 4/01 the Tribunal of Commissioners said:

"Section 73(1)(d) does not contain the words `cannot exercise the faculty of walking' but uses the words `cannot take advantage of the faculty of walking'. We observed that the Commissioner in CDLA/757/1994 and Mr Forsdick [counsel for the Secretary of State], in the re-formulation which we invited him to make, substituted the words `cannot exercise' for `take advantage of'. We accept Mr Drabble's [counsel for the claimant] submission that these last words are of wider import than `cannot exercise' and carry with them the connotation that the claimant is not able most of the time to walk over unfamiliar routes so as to be able to get to a desired destination whenever he wants to without the prescribed supervision or guidance."

10. In the present case the appeal tribunal twice used the terms of ability to exercise the faculty of walking. The appeal tribunal may have meant by the use of those terms no more than that the claimant could take advantage of the faculty of walking on unfamiliar routes without guidance or supervision, and had in fact done so. However, in my judgment there is doubt raised that the application of the wrong legal test was material to its decision. In addition, the appeal tribunal's final sentence in paragraph 12 left it unclear why it was considered that the presence of another person, if it would lessen the risk of physical harm to the claimant or others, would not constitute guidance or supervision within the meaning of section 73(1)(d) of the Social Security Contributions and Benefits Act 1992. For those reasons the appeal tribunal's decision is to be set aside as erroneous in point of law.
11. On that basis it may not be necessary to consider any further what the chairman of the appeal tribunal called the relationship between a propensity towards anti-social behaviour and the lower rate of the mobility component. The statement of reasons had left it unclear in paragraph 10 what authority was to be given to what the Commissioner had said in CDLA/835/1997. It is convenient, in the light of the submissions I have heard, to set out the position now. It is, I think, plain that, since the Court of Appeal allowed the claimant's appeal against the Commissioner's decision in that case (V v Secretary of State for Social Security, 23 February 2001), there can be no obligation to follow anything said by the Commissioner. The authority of the whole decision has gone even though the Court of Appeal's order referred specifically to setting aside a direction about the type of supervision which could count for the purposes of the lower rate of the mobility component. Then, in its turn, the Court of Appeal's consent order can carry no obligation for its terms to be followed in any other cases. That is in accordance with the principles recognised in R(FC) 1/97 and R(FC) 3/98. It is true that, in V v Secretary of State for Social Security, the Court of Appeal's order stated that the appeal was allowed for the reasons set out in a statement, apparently agreed by the parties, annexed to the order. Thus, some reasons were given, but the absence of argument and the nature of a consent order in itself means that those reasons have no authoritative status at all.
12. The overall result is that the decisions of both the Commissioner and the Court of Appeal are, as it was put by Mr Heath on behalf of the Secretary of State, to be taken out of the equation in terms of authority. The authoritative decision on issues of legal principle, except so far as affected by subsequent legislation, is that of the Tribunal of Commissioners in R(DLA) 4/01. It was held there not merely that the kind of supervision relevant to the care component of DLA could also be relevant to the lower rate of the mobility component, but also that it is not necessary for the effects of a disability giving rise to a need for guidance or supervision to arise specifically from the exercise of the faculty of walking.
13. If the claimant had not had the opportunity to give further evidence before me, I would have referred the case to a new appeal tribunal for rehearing, rather than substitute a decision on the facts found by the appeal tribunal of 27 June 2003. Ms Morera wished me to give a decision. Since I have heard extensive further evidence it is appropriate to take that course after making additional findings of fact.

The Commissioner's decision on the appeal against the decision of 2 October 2002

14. At the oral hearing Mr Heath went through all the elements of qualification for the lower rate of the mobility component, but on the view I take of the facts there is no need to spend much time on most elements. For instance, I am satisfied from the GP's letter of 22 November 2002 that the claimant was at the relevant time suffering from physical and mental disablement in the form of anxiety, depression, feelings of paranoia, tinnitus and migraines. That has not, I think, been challenged by the Secretary of State. If, which I doubt, there is a separate condition that the disablement be severe, that condition is met. I am also satisfied that, in so far as the claimant's case is based on the effect of fear and anxiety on his ability to take advantage of the faculty of walking, that fear and anxiety is a symptom of a mental disability so as to satisfy the condition in regulation 12(8)(a) of the Social Security (Disability Living Allowance) Regulations 1991 (the DLA Regulations) for not applying regulation 12(7). The question of whether the fear and anxiety is so severe as to prevent the claimant from taking advantage of the faculty of walking in such circumstances (regulation 12(8)(b)) seems to me to merge into the overall question of fact whether the effects of the claimant's disablements were such that he could not take advantage of the faculty of walking most of the time without guidance or supervision from another person.
15. Nor do I need to get into any complications about the relationship between anti-social behaviour and the conditions of entitlement to the lower rate of the mobility component. The claimant's case is that as a result of his mental disablement, leaving aside the effects of tinnitus for the moment, he sometimes or often got into physical confrontations with others which had led to injuries to himself and others. That is a very different type of risk from that in issue in CDLA/835/1997, where it was said that the risk was that a teenager would go off shoplifting or get into bad company or be exposed to some moral danger. Here, it seems to me in the light of the principles set out in R(DLA) 4/01 that if the claimant shows that the likelihood of physical injury to himself or others, resulting from his physical and mental disablements, is such that he is prevented most of the time from taking advantage of the faculty of walking, ignoring the ability to walk on familiar routes, without guidance or supervision from another person, then he is entitled to the lower rate of the mobility component. There is nothing in the nature of the supervision which would be involved which in itself would take his circumstances outside such entitlement.
16. The crucial questions are therefore the ones of fact about the effect of the claimant's conditions on him at the relevant time, in the months prior to 2 October 2002, and whether the effect prevented the claimant from walking on unfamiliar routes most of the time. On these issues, I have found the claimant's evidence at the oral hearing, which was carefully related to the relevant period under questions from Mr Heath and from me, most valuable. He was able at the hearing to go into much more detail about his life and activities at that time.
17. However, I should start with what was written on the claim pack signed on 2 September 2002, since that was written at the relevant time. Before the appeal tribunal, Ms Morera had pointed to what was written on pages 47 and 58 and I think that those pages give a good flavour of the way the claimant's problems were seen at the time. On page 47, describing why he needed someone with him when outdoors, was written:

"When I go out I often get feelings of anxiety and paranoia. I feel that people are staring at me or talking about me. This sometimes leads to confrontations with people, some of which have resulted in physical violence. Certain sounds can increase my anxiety and paranoia, for example beeping noises on the train or bus. These sounds often make me feel more aggressive.

Sometimes when I go out I forget where I am going, also when I go out I become anxious about forgetting things that I may need to take with me. This is because I have lots of thoughts going through my head and I lack concentration."

On page 58, describing why he needed someone to keep an eye on him, was written:

"Because of the paranoid thoughts I have, especially when I go outside, I often think people are talking about me or getting at me. For example, if I am walking down the street and someone accidentally bumps into me I think they automatically did it on purpose. This makes me very angry and will often result in me being verbally and physically abusive to people I think are talking about me. I need someone with me to calm me down and to remind me to take my medication."

The history of aggressive outbursts was confirmed in the GP's letter of 22 November 2002. This referred to the claimant having twice sustained head injuries as a result (although I think that one of those incidents may have been the one described by the claimant as having happened on 29 October 2002: see below).

18. What was written in the claim pack used words like "often" and "sometimes". The frequency of actual incidents of abuse or injury might not be crucial if supervision from others had reduced the severity of incidents or the possible occurrence of a serious incident was unpredictable. However, that evidence did at least raise a question whether there were times when the claimant was able to walk on his own on unfamiliar routes. This was explored to some extent by the appeal tribunal, where the claimant gave evidence that he did go out on his own sometimes and also (if I can read the writing in the record of proceedings) that he would avoid being in places if he was in an angry mood and that he would have a one or two hour spell each day of feeling bad.
19. At the oral hearing, the claimant clearly described the pressures that had been building in his life through 2002. He had had a major car accident at the end of 2001, which led to him being charged with a criminal offence and losing his driving licence early in 2002. He was supposed to get his licence back after nine months, but he had many problems dealing with the Driver and Vehicle Licensing Agency and his GP in this process. I accept that the feeling of frustration and not being able to influence the resolution of problems exacerbated the claimant's mental state and led to him being on a shorter fuse. This seems to have culminated in the incident on 29 October 2002, after a decision about his driving licence which had been due to be made on 16 October 2002 did not come through. The claimant had been out to see a friend in the evening and was in Leicester Square on his way to catch a bus home on his own, when he accidentally bumped into a road sweeper. The road sweeper did not accept the claimant's apology. The claimant then found it difficult to walk away from the incident, the road sweeper hit him with his shovel and the claimant threw the road sweeper's broom at him. The claimant was arrested by the police a little later, as the road sweeper had alleged that he had been mugged, but the case was dropped after the claimant had been held overnight. On the claimant's account, this incident was by no means solely his fault or solely the result of mental or physical disablements. Although it occurred after the latest date that I can consider, I can take it as illustrative of the pressures he was under at and before 2 October 2002.
20. However, that incident does also illustrate that the claimant would be out on his own at night, although I do not know whether he would regard Leicester Square as part of a familiar route. The claimant did give evidence to me that, at the relevant time, he would prefer to have someone with him if he had to go somewhere where he did not know people, but did sometimes go to such places on his own. He said that he felt more comfortable if going to some definite destination which he could identify, but if going somewhere new (like a friend's house in a new area), he became easily confused and frustrated and felt a threat to himself. There were times when he wanted to go out, but did not do so because he had no-one to accompany him. Two elements of the claimant's evidence seem to me particularly significant. The first is that from autumn 2002 he started a part-time computer course, I think at a local college, involving three classes a week, mainly in the evenings. Although the routes involved in walking to and from the classes, and socialising afterwards, would no doubt quickly have become familiar, they might not have been to begin with. The second significant element is that near the end of his evidence said that he did not see his problems arising from going out during the day-time, but from being out in the evenings or at night, when people looked at him differently.
21. My conclusion from all the evidence, and particularly the elements picked out above, is that while at the relevant time the claimant was sometimes unable to take advantage of the faculty of walking on unfamiliar routes without guidance or supervision from another person, he has not satisfied me on the balance of probabilities that this was the case most of the time. Although there might have been times during the day when the claimant did not feel able to go out, when he was feeling particularly vulnerable, I conclude that the main problems stemming from the claimant's anxiety, depression and feelings of paranoia, aggravated by his tinnitus, were when he was in unfamiliar areas in the evening or at night. Even then, it seems to me that, in view of the evidence that the claimant did walk on his own in the evening and at night, that for some of that time it was the case that the claimant preferred to have someone with him, not that he could not take advantage of the faculty of walking without someone to supervise him. I think that that would have been the case at times when he was feeling less oppressed by his problems. For that reason, I conclude that the claimant has not shown that he qualified for the lower rate of the care component from 5 September 2002. Although there had been a change of circumstances, the change was not sufficient to justify any alteration in the award which was already in existence, of the lowest rate of the care component alone.
22. In reaching the conclusion above, I have taken account of the claimant's tinnitus as a factor aggravating the effects of the claimant's mental disablements. I should also take account of the problems caused by the tinnitus as an independent factor. The claimant had referred to beeps and high-pitched sounds causing loss of balance, disorientation, panic and loss of traffic sense. Some of these problems were, though, suffered while on public transport rather than when walking. I am not satisfied that the sorts of noises which would affect the claimant's tinnitus would be common enough when walking that they could be found to give rise to a necessity to be supervised or guided most of the time, either on their own or in combination with the effects of the claimant's mental disablements.
23. For those reasons, my decision is that the claimant's appeal against the Secretary of State's decision dated 2 October 2002 is disallowed, as set out in full in paragraph 1 above.

(Signed) J Mesher

Commissioner

Date: 6 April 2004