Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/7/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Nicholas Paines QC

Decision:  I must allow the Secretary of State’s appeal as the decision of the First-tier Tribunal involved an error of law.  It is appropriate for me to set the decision aside and decide the case myself.  The only possible conclusion is that the Secretary of State was right to decide that the claimant was not entitled to a disability living allowance.

REASONS FOR DECISION

1.              The claimant suffers from urinary incontinence as a result of treatment for cancer of the prostate gland.  He has no other disabilities, though his incontinence is clearly a very tiresome and troubling condition.  In November 2009 he claimed DLA on account of the difficulties caused by his incontinence.  The Secretary of State decided that he was not entitled to either component of DLA.  He appealed to the First-tier Tribunal which allowed his appeal to the extent of awarding him the lower rate of the mobility component.

2.              On the claim form the claimant had not claimed a need for supervision when out of doors in unfamiliar places, but the tribunal accepted that that had been an error; they dealt with his appeal against refusal of the mobility component as well as the care component.  They were perfectly justified in taking that course.  The reason why the Secretary of State’s appeal must succeed is that the tribunal appear to have overlooked one of the provisions governing entitlement to the lower rate of the mobility component.  When that provision is taken into account, it becomes clear that the claimant is not entitled to the lower rate of the mobility component.

3.              The tribunal’s reasoning was

We accept that the Appellant does get extremely upset and anxious in unfamiliar places because he does not know where the toilets are.  We accept his evidence that the reason for this is because although he uses a leg bag he still experiences accidents and has very little warning before these occur.

We accept that the Appellant finds this both embarrassing and distressing.  We further accept that for this reason the Appellant reasonably requires his wife or some other person to be with him to talk to him and calm him down.  We are satisfied on the evidence that this amounts to a coaxing or encouragement and is “supervision” for these purposes.  The assistance that the Appellant reasonably requires from his wife or some other person amounts to more than reassurance.

4.              By section 73 of the Social Security Contributions and Benefits Act 1992 a person who can walk is entitled to the lower rate of the mobility component if he is “so severely disabled physically or mentally that, disregarding any ability which he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty [of walking] out of doors without guidance or supervision from another person most of the time”. 

5.              But the Act allows further conditions to be imposed by Regulations.  Paragraphs (7) and (8) of the Social Security (Disability Living Allowance) Regulations 1991 have the effect that a person does not qualify for the lower rate of the mobility component if the reason why he does not take advantage of the faculty of walking outdoors without guidance or supervision is “because of fear or anxiety”, unless “the fear or anxiety is (a) a symptom of a mental disability and (b) so severe as to prevent the person from taking advantage of the faculty in such circumstances”.

6.              The effect of the legislation is thus that a person who is able to walk is only entitled to the lower rate of the mobility component if he cannot take advantage of his ability to walk in order to use a route that is not familiar to him unless he receives guidance or supervision most of the time. 

7.              That inability may arise from a physical disability (e.g. blindness) or a mental disability, which can include fear and/or anxiety.  But an inability to walk without guidance or supervision is not to be taken into account if the inability arises out of fear or anxiety unless the fear or anxiety is both so severe as to prevent the person going out alone and is a symptom of a mental disability.  An ‘ordinary’ fear of having to deal on one’s own with the consequences of one’s physical disabilities is not sufficient.

8.              On the tribunal’s findings, the claimant’s inability to walk on unfamiliar routes arises out of anxiety about the possibility of an episode of incontinence.  I agree with the tribunal that what the claimant receives from his wife amounts to ‘supervision’ because it will include monitoring him for symptoms of rising anxiety.  But the anxiety in question is a perfectly normal and understandable anxiety, and there is no suggestion that it is a symptom of any mental disability.  Regulation 12(7) therefore prevents the claimant qualifying for the lower rate of the mobility component.

9.              I have considered whether it could be said that the claimant cannot walk alone on unfamiliar routes because he needs the assistance of his wife or another person to deal with the consequences of an incident of incontinence.  There is no suggestion of that in the tribunal’s reasoning.  Clearly, the presence of another person cannot prevent such an incident occurring; if such an incident does occur, I can well understand that his wife’s presence gives the claimant moral support and may reduce the claimant’s distress and embarrassment, but the statutory test requires a finding that a claimant “cannot” walk alone.  I do not consider that it could be said that the claimant cannot walk alone on the grounds that he cannot deal on his own with the consequences of an incident of incontinence.

10.           In his observations on the Secretary of State’s submission, the claimant has said in effect that he maintains the arguments he advanced before the tribunal.  I have explained why I do not consider him to be entitled to the lower rate of the mobility component; I must deal with his claim for the care component, which the tribunal rejected.

11.           The claimant does not have physical disabilities apart from his incontinence; there is no suggestion that he is unable to manage his incontinence aids or deal with the consequences of daytime soiling without help.  The tribunal found that the only care needs claimed by him related to night needs and I see no reason to disagree with that assessment.  In order to qualify for the care component on the basis of night-time needs, the claimant would have to require either supervision to avoid substantial danger or prolonged or repeated attention.  There is no question of substantial danger. 

12.           The claimant told the tribunal that he needed help with changing clothing and bedding three nights a week on average.  The tribunal inclined to the view that the claimant did not require his wife’s help, but held in any event that a requirement for this degree of help would not amount to a requirement for prolonged or repeated attention.  I consider that the tribunal must be right in that.  The question is whether the claimant could be described as someone who “requires from another person prolonged or repeated attention” at night; even on the assumption that the claimant reasonably requires the help, I do not consider that three occasions per week of help with changing night clothing and bedding could be said to amount to prolonged or repeated attention at night.

13.           For all the above reasons I have to decide that the claimant was not entitled to DLA.

Judge Nicholas Paines QC

17 June 2011