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Cite as: [2009] UKUT 94 (AAC)

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MH v Secretary of State for Work and Pensions [2009] UKUT 94 (AAC) (20 May 2009)
DLA, MA: mobility
inability to walk

IN THE UPPER TRIBUNAL Appeal No. CDLA/216/2009

ADMINISTRATIVE APPEALS CHAMBER

Before S M Lane

Decision: The appeal is not allowed.

The decision of the Darlington tribunal on 30 September 2008 did not involve the making of an error of law.

The appellant is not entitled to either component of Disability Living Allowance at any rate with effect from 27/02/08.

REASONS FOR DECISION

As from 3 November 2008, cases that were previously dealt with by the Social Security Appeals Commissioners are dealt with by the Upper Tribunal (Administrative Appeals Chamber). This change has no practical effect on appeals from Social Security and Child Support Appeals Tribunals, which are now called First-tier Tribunals (Social Entitlement Chamber).

The appellant appeals, with my leave, from the decision of the Darlington Tribunal on 30/08/08. The tribunal confirmed the decision of the Secretary of State that the appellant was not entitled to either component of Disability Living Allowance (DLA) at any rate from and including her date of claim.

The appellant sought the lowest rate of the care component and the higher rate of the mobility component of DLA. The appeal relates only to the mobility component. The appellant claimed to be virtually unable to walk under section 73(1)(a) of the Social Security Contributions and Benefits Act 1992. In order to be virtually unable to walk, a claimant must fulfil the conditions set out in regulation 12(1)(a)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The conditions under regulation 12(1)(a)(ii) are not taken to be fulfilled, however, in certain cases where prostheses or artificial aids are used. The tribunal found that the appellant was not virtually unable to walk with the support of her chosen artificial aid, a shopping trolley.

The tribunal took a short cut directly to regulation 12(4) in coming to the conclusion that the appellant was not virtually unable to walk. It would have more correct to start with whether the claimant was taken to satisfy the conditions under regulation 12(1)(a)(ii) before moving on to whether she was nevertheless not to be taken to satisfy the conditions by virtue of regulation 12(4), as stated in R(M)1/90. This was not, however, a material error that would have justified setting the decision aside.

The point at issue is whether a shopping trolley can properly be considered an artificial aid for the purposes of regulation 12(4), which states -

12(4) …a person is to be taken not to satisfy the conditions mentioned in [section 73](1)(a) if he -

(a) is not unable or virtually unable to walk with a prosthesis or artificial aid which he habitually wears or uses, or

(b) would not be unable or virtually unable to walk if he wore or used a prosthesis or an artificial aid which is suitable in his case.

The tribunal found the appellant completely credible and accepted her evidence that she always used a shopping trolley for support when out walking, whether to the shops (around 200 yards away) or with her grandchildren. They made careful findings on all aspects of regulation 12(1)(a)(b) with the assistance of the trolley.

The appellant's representative submitted that the tribunal erred in law by assessing the claimant's ability to walk with the support of the shopping trolley, which in their view, could not be seen as a suitable artificial aid. They submitted that 'A shopping trolley, as its name indicates, is designed to transport shopping, not to provide adequate support to assist those with mobility problems.' The representative added that there was other evidence that the appellant walked with her daughter-in-law's support and that the tribunal did not explain why this physical support was necessary. As to the latter point, the obvious answer is that the tribunal considered that she did not need that support because she was able to get around quite satisfactorily out of doors with the trolley, which was always with her.

The Secretary of State, who does not support the appeal, submitted that there was no definition in the regulations of the phrase 'artificial aid', which therefore had to be interpreted in its ordinary context. In his view, the trolley was an artificial aid from which the claimant obtained support and assistance and therefore came within the terms of the legislation. It was the appellant's chosen aid, it enabled her to walk and she preferred it to a more orthodox means of support.

I accept the Secretary of State's submission. In contrast to regulation 12(4)(b), regulation 12(4)(a) does not inquire into the suitability of the aid used by the claimant. Instead, it looks to whether the aid is habitually used. There may be a correlation between the suitability of an aid and its habitual use, or whether it is used or, indeed, needed at all, which may be of evidential value to a tribunal in assessing the extent of a claimant's mobility problems. An aid that is used habitually is likely to have proven suitable for the claimant whereas an unsuitable aid is not likely to be used habitually, if at all.

People with mobility problems are not required to acquire orthodox mobility aids. There may be many reasons why a person prefers a shopping trolley or a sturdy umbrella to a walking frame (wheeled or otherwise) or walking, to which they often bear a significant resemblance. It is a matter of choice for the claimant. In this case, the appellant made a choice that enabled her to walk out of doors satisfactorily and which entitled the tribunal to conclude that she was not virtually unable to walk with her chosen artificial aid.

Even if that were not right, I would not have allowed the appeal and would have instead have substituted a decision to the same effect. Plainly, if the appellant could walk satisfactorily with a shopping trolley, she would be able to walk satisfactorily with a suitable artificial aid such as a walking stick or wheeled walking frame. She would accordingly not be virtually unable to walk by virtue of (4)(b).

[Signed] S M Lane

Judge of the Upper Tribunal

Date 11 June 2009