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[2008] UKSSCSC CDLA_496_2008 (30 June 2008)

CDLA/496/2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I grant the claimant leave to appeal against the decision of the Scarborough appeal tribunal dated 20 November 2007. However, I dismiss her appeal.

REASONS

I held an oral hearing of this case in the combined court centre at Hull. The claimant, who attended the hearing herself, was represented by her partner. The Secretary of State was represented by Mr Huw James, solicitor, as agent for the Solicitor to the Department of Health and the Department for Work and Pensions. Both parties gave their consent to my treating the application as the appeal.

The claimant, who is now aged 51, has suffered from epilepsy for the past twenty-five years or so and she also has panic attacks and seizures that may not be true epileptic seizures but are nonetheless disabling. Not surprisingly, she also suffers from depression, which may contribute to her attacks. She has been in receipt of disability living allowance since 1 July 1994, an earlier claim in November 1993 having apparently been unsuccessful.

The adjudication history is complicated, there having been a considerable number of claims, applications for supersession, applications for revision and appeals. This history is not fully captured in the Department's computer records which record the awards ultimately made in respect of each period but not the decision-making process leading to the awards. Moreover, the sequence of decisions recorded in the statement of reasons for a decision of a tribunal dated 22 November 2001 appears not to be entirely consistent either within itself or with a decision of a Deputy Commissioner (CDLA/3863/2000) dated 18 June 2001.

It appears that the first couple of awards were only of the lower rate of the mobility component but, on 15 March 1999, an adjudication officer confirmed an indefinite award of the lower rate of the mobility component and also awarded the highest rate of the care component from 1 January 1997 to 31 December 2000. A number of applications for supersession then followed and one or more awards of the highest rate of the care component were made to cover the period from 1 January 2001 to 22 May 2003. A tribunal sitting on 3 April 2000 dismissed an appeal by the claimant, who was seeking the higher rate of the mobility component but that decision was set aside by the Deputy Commissioner, in the decision I have already mentioned, who referred the case to another tribunal. That case, and an appeal against a supersession decision made on 5 June 2001, came before a tribunal on 22 November 2001, which appears to have believed that it was concerned with the claimant's entitlement to disability living allowance from 17 December 1999 onwards. Whether or not the tribunal was looking at the correct period does not matter now. The tribunal did not interfere with the awards of the highest rate of the care component but it awarded the higher rate of the mobility component from 1 August 2000 to 22 May 2003 (the commencement date reflecting, I think, the statutory three-month waiting period and an apparent worsening in the claimant's condition that had resulted in a hospital admission in May 2000). However, when the claimant made a renewal claim, the Secretary of State awarded only the lower rate of the mobility component, with the highest rate of the care component, for the period from 23 May 2003 to 22 May 2006. The claimant appealed but her appeal was dismissed by a tribunal on 4 September 2003 and Mr Commissioner Jacobs subsequently refused leave to appeal against the tribunal's decision (CDLA/4410/2003). An application for supersession of that award was rejected by the Secretary of State on 8 July 2004 and, on appeal, by a tribunal on 10 November 2004. On a renewal claim made on 8 December 2005, the Secretary of State made a further award of the lower rate of the mobility component from 23 May 2006 to 22 May 2009. Again a tribunal dismissed an appeal, on 6 July 2006, but I set that decision aside on 29 March 2007 and referred the case to another tribunal (CDLA/3207/2006). The new tribunal sat on 20 November 2007 but again dismissed the claimant's appeal and it is from the decision of that tribunal that the claimant now seeks leave to appeal to a Commissioner.

The upshot of all these claims, applications and appeals is that, although the claimant was awarded the higher rate of the mobility component from 1 August 2000 to 22 May 2003, she has received only the lower rate since then. Unsurprisingly, her principal ground of appeal has therefore been that those tribunals that have considered her case in the last five years have failed to appreciate the seriousness of her condition and the fact that her seizures have been getting worse. However, I do not consider that to be correct reading of the tribunals' decisions. In particular, the findings of the tribunal sitting on 20 November 2007 are set out in paragraph 6 of the statement of reasons for its decision –

"The Appellant's panic attacks can happen anywhere, at any time and for no apparent reason. Frequently these panic attacks will culminate in a seizure. The evidence was that she has on average 5 to 8 such seizures a week. In addition the Appellant has between 4 and 5 sudden day-time seizures per week of which she has no warning at all and which are quite unconnected with her panic attacks. When experiencing a seizure, howsoever caused, the Appellant will collapse to the floor and lose consciousness for between 4 and 6 minutes. When she awakes she needs help and if out of doors she needs to be taken home as she is incapable of walking. She then needs to sleep for some hours to recover, often it takes the rest of the day even if an episode happens in the early afternoon. Sometimes the seizures come in clusters (complex seizures) and as a result she is, after regaining consciousness, incapacitated for about 2 days during which time she simply remains prone in bed mostly sleeping. The Tribunal were told that these complex seizures can occur once or twice a fortnight. She also has night-time fits whilst asleep 2 to 3 times per week and these events, she explained, leave her tired and numb and she finds that the best way to recover is to remain in bed sleeping it off for up to 12 hours. The evidence to the Tribunal by the Appellant and her partner was that after a fit or seizure the appellant will not go out of the house until fully recovered and she is for most of the recovery period unable "to get up out of bed" or in the alternative sensibly remains in bed. This is the situation on average 4 days per week. The pattern of attack varies but the effect does not. The rest of the time the Appellant is fully mobile but for obvious reasons will not venture outdoors without being accompanied. It should not be overlooked that the Appellant has panic attacks which mercifully do not result in a seizure. These events and the risk thereof also affect her confidence in venturing outdoors and a there is no medical evidence that they are of physical origin the situation is catered for under the relevant legislation by the award of the lower rate mobility component."

I did not understand the claimant's partner to object to those findings. The reason the claimant has failed is therefore not that the tribunal misunderstood her circumstances.

The real issue is whether, in the light of the tribunal's findings, the tribunal correctly decided that, as a matter of law, the claimant was not entitled to the higher rate of the mobility component. Clearly, there should, as the claimant's partner argues, be consistency in the rate of the component awarded if the claimant's condition has not improved, but it is possible that the award made from 1 August 2000 to 22 May 2003 was unduly favourable to the claimant rather than that subsequent awards have been unduly unfavourable.

The principal provisions in issue are subsections (1) and (8) of section 73 of the Social Security Contributions and Benefits Act 1992, which, so far as material, provide –

"(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which—

(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so; or

(b) …; or

(c) …; or

(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.

…

(8) A person shall not be entitled to the mobility component for a period unless during most of that period his condition will be such as permits him from time to time to benefit from enhanced facilities for locomotion.

…"

By virtue of subsection (11), a person who falls within the scope of section 73(1)(a) is entitled to the higher rate of the mobility component and a person who falls only within the scope of section 73(1)(d) is entitled only to the lower rate. It is not in dispute that the claimant falls within the scope of section 73(1)(d); the question is whether she also falls within the scope of section 73(1)(a).

The tribunal's reasons for not awarding the higher rate of the mobility component are set out in paragraph 8 of the statement of reasons –

"Dealing with the higher rate of the mobility component – in order to qualify for the higher rate (simply put) a person must be unable to walk or virtually unable to walk out of doors due to a physical condition without severe discomfort or if the exertion required to walk would constitute a danger to life or would be likely to lead to a serious deterioration in health. As to whether a person is virtually unable to walk the test to be applied is whether or not a person's ability to walk out of doors is so limited as regards the distance over which or the speed of which or the length of time for which or the manner in which that person can make progress on foot without severe discomfort is such that that person can properly be said to be virtually unable to walk. In this Appeal the clear evidence is that when not in a fit or seizure and when not suffering resultant post epileptic periods of debility she is fully capable of walking normally. There is no medical evidence to suggest that the Appellant in simply walking would thereby endanger her life or risk a serious deterioration in health. When she is in a seizure or a fit she is not capable of walking and when in her post epileptic periods of debility she begins by not being capable of walking and gradually passes through a stage of being virtually unable to walk before again being fully mobile, but the clear evidence was that during those times leading up to her regaining full mobility she is "incapable of benefiting from enhanced facilities for locomotion" – see section 73(8) of the Social Security Contributions and Benefits Act 1992 – as she will not leave the house or even attempt to leave it and therefore because of the operation of section 73(8) she does not qualify for the higher mobility rate. It would be entirely speculative to attempt a hard and fast finding on how long following each varied event the Appellant was during her period of recovery virtually unable to walk out of doors had she wished to walk out of doors save to say that doing the best it can the Tribunal found that added together such periods would not each week add up to a significant period of time. Indeed it might be said that such an exercise was futile because the clear evidence was that until fully recovered she could not and would not venture out of doors."

The difficulty that there is in applying the law to the facts of this case is that the claimant's inability to walk is not constant. Much of the time there is not a great deal of restriction in her mobility and she certainly cannot be said to be "virtually unable" to walk during those periods. Equally, when she has a seizure and is then recovering she is unable to walk or is virtually unable to do so. But section 73(1) allows an award to be made at the higher rate only if the claimant is unable to walk or virtually unable to do so "throughout" the period of the award. It is common for conditions to fluctuate and, in Secretary of State for Work and Pensions v. Moyna [2003] UKHL 44; [2003] 1 WLR 1929 (also reported as R(DLA) 7/03), the House of Lords considered the meaning of the word "throughout" in the similar context of section 72, relating to the care component to which a person may be entitled if, among other grounds, he is incapable of preparing a cooked main meal for himself. Lord Hoffman said –

"What does this mean? One possible construction is that if there was a single occasion during the period when a remission in his disability would have allowed him to cook a meal, it cannot be said that throughout the period he was unable to do so. But the Secretary of State does not contend for this construction and I do not think that it would be right. That is not because one occasion is de minimis but because the test does not in my opinion function at that day to day level. It involves looking at the whole period and saying whether, in a more general sense, the person can fairly be described as a person who is unable to cook a meal. It is an exercise in judgment rather than an arithmetical calculation of frequency."

How is that judgment to be exercised in a case like the present? The tribunal's emphasis on section 73(8) is probably the consequence of the way I expressed myself in CDLA/3207/2006 when I allowed the claimant's last appeal to a Commissioner. However, the tribunal sitting on 3 August 2000 had expressed itself in much the same way and the learned Deputy Commissioner, in his decision in CDLA/3863/2000, said –

"13. The Tribunal went on to find that while she was incapacitated in that way [after a seizure], her condition was such that she was unable to benefit from enhanced facilities for locomotion so as to satisfy section 73(8) of the Social Security Contributions and Benefits Act 1992. I am unable to understand this. The evidence was that the claimant did go out and had fits when out, when she needed transport to get her home. She plainly benefited from being taken home, and therefore could benefit from enhanced facilities for locomotion. On this account too, the tribunal erred in law."

It was following that decision that the higher rate of the mobility component was awarded to the claimant. The learned Deputy Commissioner was plainly correct in regarding the claimant as not being barred from entitlement to the mobility component by virtue of section 73(8), but I am not sure that that was what the tribunal had been getting at.

It is plain that section 73(8) is concerned with the whole period of the award and that during most of that time the claimant must be capable of benefiting from time to time from enhanced facilities for locomotion. It applies as much to the lower rate of the mobility component as to the higher rate, it being implicit that someone who needs supervision or guidance while walking in unfamiliar areas may benefit either from such help on foot or from being conveyed in a vehicle. Thus, it is arguable that, if most of the time the claimant was recovering from a seizure and if while recovering from a seizure she was not capable of benefiting from enhanced facilities for locomotion, she would not be entitled to the mobility component at all. I need not consider whether that is the correct construction of section 73(8), because the issue does not arise here. Although the tribunal referred to the claimant being unable to walk for four days in a week, that was in the context of it having found that there were four days in a week when she had seizures that affected her for the rest of the day, so it is not the case that the claimant was unable to benefit from enhanced facilities for locomotion on four whole days, and therefore the majority, of the week.

It seems to me that what the tribunals sitting on 3 August 2000 and 20 November 2007 were both trying to make clear is that the question whether a claimant is entitled to the higher rate or the lower rate of the mobility component is to be determined by whether the claimant's need for enhanced facilities for locomotion during the part of the period of the award when he or she is realistically going to make use of such facilities can fairly be described (to use Lord Hoffman's words) as due to the claimant satisfying the conditions for the higher rate rather than only due to the claimant satisfying the conditions for the lower rate. In making that assessment, one cannot bring into the calculation the part of the period of the award when the claimant is not likely to make use of enhanced facilities for locomotion at all, even though the claimant may for practical purposes be unable to walk then. That is, in my judgment, the correct approach, whether or not section 73(8) is directly relevant. It gives effect to the obvious policy intention behind there being two rates at which the component is paid.

On that basis, the tribunal's conclusion in the present case was clearly correct. Until the claimant had a seizure, she satisfied the conditions only of section 73(1)(d) and not the conditions of section 73(1)(a), although there was then a short period, immediately after a seizure if the seizure took place out-of-doors, while she was unable to walk or virtually unable to do so when she could benefit from enhanced facilities for locomotion. There then followed a period of recovery when she remained virtually unable to walk but at the same time was unlikely to make use of enhanced facilities for locomotion before the claimant once again satisfied only the conditions of section 73(1)(d) and the cycle started again. Leaving out of account the period when she was would not use enhanced facilities for locomotion, the overwhelming majority of the time she satisfied only the conditions of section 73(1)(d) and not also the conditions of section 73(1)(a). It might have been different if the claimant almost invariably had a seizure when walking even moderate distances out of doors, but that is not the case here.

Mr James drew my attention to the last sentence of paragraph 6 of the statement of reasons and submitted that it might not accurately reflect the law. However, he also submitted that any such error was immaterial in the light of the tribunal's findings. The sentence is, perhaps, ambiguous but I agree that, even if there is an error of law, it is not material. I therefore need not consider this point any further.

Accordingly, I dismiss this appeal. I hope that the claimant will now understand that she was probably awarded the higher rate by the tribunal sitting on 22 November 2001 in error and that subsequent tribunals have reached a different decision because they have applied the law properly, rather than because they have failed to understand her difficulties. Since the Secretary of State failed to appeal against the decision of 22 November 2001, that decision stands for the period from 1 August 2000 to 22 May 2003, but it does not follow that the claimant is really entitled to the higher rate of the mobility component.

Finally, I wish to express my concern that the Disability and Carers Service seems not to have kept copies of tribunal chairmen's records of proceedings and statements of reasons with the other documents in its records. Two statements of reasons, which were not supplied to the tribunal by Disability and Carers Service, have been supplied to me by the claimant. The Disability and Carers Service must have been sent copies of those documents at the same time as they were sent to the claimant. I appreciate that the failure to keep those documents may be partly because, by the time they were received, the other documents were in remote storage somewhere, but, if such documents are not retained and are not put before tribunals and Commissioners dealing with subsequent appeals, the tribunals or Commissioners may be handicapped, as indeed may decision-makers acting for the Secretary of State. In particular, a record of evidence given to a tribunal and the tribunal's findings on it may be of considerably more use when determining a subsequent claim or application for supersession than old claim forms and medical reports. Indeed, had I had all the documents I have now when I gave my decision last year, I might not have found it necessary to refer the case to another tribunal and might then have dealt with the issue that I have had to consider now in this decision.

(signed on the original) MARK ROWLAND

Commissioner

30 June 2008