Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CDLA/3162/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The decision of the tribunal heard on 11 August 2011 under reference SC205/11/00308 is SET ASIDE because its making involved an error on a point of law.

The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

REASONS FOR DECISION

1     The appellant’s appointee appealed the decision of the First-tier Tribunal with my permission.  The First-tier Tribunal confirmed the Secretary of State’s award of the highest rate of the care component and the lower rate of the mobility component for the appointee’s daughter, M, a child who was 8 years old at the date of claim.  The appointee, whom I shall refer to as the appellant hereafter, submits that M should have been awarded the higher rate of the mobility component because she was virtually unable to walk through ulcerative colitis which caused her to have chronic diarrhoea.  She also submitted that, by failing to award the higher rate of the mobility component, M’s human rights – specifically Article 8, the right to family life – has been infringed.

The First-tier Tribunal’s decision

2     The Tribunal dealt with the higher rate of the mobility component by finding that ‘though very restricted by chronic diarrhoea, M does not have a physical disability which renders her virtually unable to walk’ [paragraph 5].  This was based on the sparse findings that M’s family reported they felt very restricted in their daily lives by M’s diarrhoea and were not accessing the things they would like to do for fear of unpleasantness of M not reaching a toilet in time.

3     The parents appealed on the basis that, in effect, the Tribunal did not take into consideration M’s physical condition as a whole.  In the appeal, the parents stated that M’s condition caused stomach cramps, bubbling tummy, the severe discomfort of trying to hold in a bowel movement while walking and of being covered in faeces when that effort failed.  They also stressed her embarrassment and hysteria. 

4     In granting permission to appeal, I asked whether the Tribunal failed to taken into consideration M’s physical condition as a whole, as required by regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991. 

The law

5. The starting point for considering whether a particular condition from which a claimant suffers can be relevant in the award of the highest rate of the care component on the basis of a virtual inability to walk is in section 72 of the Social Security Contributions and Benefits Act 1992 and regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991. 

6. Section 72 provides for two rates of benefit in the mobility component: the lower rate (s. 72(1)(d)), to which the Tribunal found M entitled, and the higher rate (s. 72(1)(a)), to which the Tribunal found she was not entitled.  The lower rate of the mobility component is for those who need guidance and supervision to take advantage of the faculty of walking when outdoors. 

7. The higher rate in section 72(1)(a) is for those who are virtually unable to walk because they are suffering from physical disablement such that they are either unable to walk, or virtually unable to walk.  The further conditions to be met for entitlement to the higher rate of the mobility component are found in regulation 12(1)(a) which, as relevant to this appeal, provides that:

(a)   [the person’s] physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to place of, or nature of, employment–

(ii)his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk;

8. In Lees v Secretary of State for Social Services [1985] 1 AC 930 (House of Lords), Lord Scarman addressed the requirements for being virtually unable to walk, albeit under a previous version of the present test.  The terms are materially the same.  The case involved a blind woman with hydrocephalus who, as a result had difficulties with spatial disorientation in addition to her blindness.  Having noted at p936 that ‘the section read as a whole does appear to emphasise physical difficulty in the act of walking’, his lordship considered that the regulation (now regulations 12(1)(a)(ii) and (iii)) had to be interpreted with the following in mind: 

‘…It directs attention to the applicant's "physical condition as a whole." The determinative words, however, are in sub-paragraphs (b) and (c). They relate to physical limitations. Sub-paragraph (b) refers to a limit upon ability to "make progress on foot," while sub-paragraph (c) refers to the exertion of walking and its likely effect on health.  Mr. Drabble would have us construe the ability "to make progress on foot" as an ability to advance from point A to a desired destination B. The context does not admit of such a meaning. The words clearly refer to the physical ability to move on foot, not to the direction of that movement.

‘…First, the language of the sub-paragraph, as I have already explained, indicates, to my mind very clearly, that the disability which has to be shown to exist is in the physical movement on foot...It is not suggested that blindness itself without further disability constitutes an inability to walk…[But] the physical act of walking is as much within their ability as within that of a sighted person.  There must, as the medical appeal tribunal held, be a further disability: and the language of sub-paragraphs (b) and (c) indicates clearly what it is - a limitation upon his physical capacity to move himself on foot.’ [emphasis added]

9. He approved a statement by Commissioner Rice that, had the legislature intended to include in regulation [3(1)(b)] the inability to direct one's walking, it would have done so in clear terms and he went on to say:

"[Blindness] is an affliction which is wholly unrelated to the physical power to move one leg in front of another. Of course, it affects drastically the sufferer's scope for walking, in that, outdoors at least, he or she is in need of a guide, or more practically a guide-dog. But these are factors which are not directly concerned with the faculty of walking. Now, in the present case, the claimant, in addition to suffering from blindness, is inclined to disorientation in open spaces. This, in my judgment, is like blindness, a handicap totally unrelated to her capacity or otherwise to perform the physical act of walking. I appreciate, of course, that the consequence of the claimant's tragic disability is that, although she can walk, she cannot control without assistance the direction in which she walks, she has an ability to walk, but an inability to make proper use of the faculty." [emphasis added]

10. The next significant case is R(DLA)6/99, a report of the Court of Appeal’s decisions in Hewitt v Chief Adjudication Officer and Diment v Chief Adjudication Officer. These cases dealt with whether severe discomfort caused by a condition completely unrelated to walking itself could be relevant to being virtually unable to walk.  The condition was porphyria, which caused the claimants in these two cases to suffer from second degree burns to their skin if they were exposed to sunlight for any reason.  They argued that walking out of doors inevitably caused them severe discomfort because of the effects of the disease.  Simon Brown LJ considered that the principle stated in Lees, although in a somewhat different context, remained relevant.  At page 226, his Lordship stated that

‘…The whole emphasis of Lord Scarman’s judgment was upon the concept of ‘the physical ability to move on foot’…In my judgment, the language of regulation 12(1)(a), taken as a whole, points strongly to the physical difficulty having to be in the act of walking outside, and not merely in being outside…Consider within sub-paragraph (ii) the combination of the phrases ‘ability to walk out of doors’, make progress on foot’ and virtually unable to walk’, all apparently directed to the claimant’s locomotive powers…’

‘I conclude that the ‘severe discomfort’ to which the regulation refers must indeed arise, as the Commissioner held, from the physical act of walking itself…’ 

11. In both of the cases their lordships require that the claimant’s condition has an impact on his ability to walk, or in the act of walking itself:  in other words, to put one foot in front of the other. 

12.    It is, therefore, necessary to decide whether M’s physical condition as a whole had an effect on the act of walking.  A Commissioner for Social Security and Child Support and a Judge of the Upper Tribunal considered that diarrhoea could affect the physical act of walking and therefore result in a claimant being virtually unable to walk.

13. In CDLA/1361/1999, Commissioner Williams (now Judge) discusses the question of whether walking limited by a combination of conditions including Downs Syndrome (causing poor muscle tone) and a perforated anus (making it likely that the child appellant would soil herself if she walked for more than 50 yards), could be sufficient for the higher rate of the mobility component to be awarded.  Although he set the appeal Tribunal’s decision aside on other grounds, he substituted a decision that the appellant was entitled to the higher rate of the mobility component. 

14 In CDLA/0217/2009, Judge Levenson also substituted a decision that the appellant was entitled to the higher rate of the mobility component where she suffered from neck, shoulder and abdominal pain, the latter leading to frequent bouts of bowel incontinence.  He took into account the discomfort of controlling her bowels and soreness of soiling is so deciding.

15   The Secretary of State sought to confine these cases to their own specific facts. He submitted that both of these appellants had a combination of conditions all of which contributed to difficulty with the act of walking.  In this appeal, he argued, the walking was not a direct cause of M’s incontinence.  She could equally have an episode from any other activity (or, I might add, while she was asleep). 

16 This distinction is not borne out.  The neck and shoulder problems in CDLA/0217/2009 would not have prevented the claimant from putting one foot in front of another with or without the further condition of diarrhoea. 

17 In CDLA/1639/2006 Commissioner Jacobs (as he then was) follows the general principle in these authorities, that the effects of the condition in question must affect the physical act of walking itself.  That case involved a claimant who suffered from severe migraines 80% of the time and claimed that the severe pain, dizziness, loss of balance and nausea from the migraines prevented him from walking.  On this basis, the Tribunal awarded him the higher rate of the mobility component. 

18 The Commissioner set the decision aside.  In paragraphs [17] and [18] he distinguishes between the effects of a condition which causes a physical difficulty in the act of walking or from the act of walking, and those which do not.  At [19] he decided that pain which was not associated with the physical act of walking had to be disregarded.  Accordingly, the pain from the migraine did not prevent the appellant from carrying out the act of walking and was irrelevant: R(DLA) 6/99.  The Tribunal had, in addition, failed to analyse the remaining effects of the claimant’s migraines to see whether they affected the distance, speed, length of time or manner in which the claimant could make progress on foot.  Those were matters which were defined by regulation 12(1)(a)(ii) as part of the act of walking.  This led to the result that the claimant’s inability to see and his loss of sense of direction were irrelevant to the higher rate of the mobility component (as in Lees); but his loss of balance was relevant as it related to the manner of walking.  It did not matter whether the loss of balance began before or after the claimant began to walk.  In deciding this, Commissioner Jacobs extended the principle in R(DLA) 4/04, where Commissioner Bano (as he then was) decided that it was not necessary for the severe discomfort to arise or worsen during walking.  It was sufficient that it impeded the physical act of walking.

How the law applies to this appeal

19 Could M’s diarrhoea have affected her putting one foot in front of the other, in other words, could it affect her physical act of walking? I have come to the conclusion, as did Judges Williams and Levenson, that diarrhoea is capable of affecting the physical act of walking and might therefore make a person virtually unable to walk.  The physical pain of preventing herself from soiling herself might stop her from walking, as might the added pain and soreness associated with faeces running down her legs. 

20 The Tribunal’s decision was, accordingly wrong in law in finding that ulcerative colitis did not indicate a physical problem with walking itself.  The condition could comprise a condition capable of interfering with the act of walking.  The decision must accordingly be set aside for that reason alone.

21 Whether the condition actually did prevent the appellant from walking to the extent that she was virtually unable to walk is a different question.  The Tribunal precluded itself from answering that question because of the view it took of the condition.  The next Tribunal to hear the appeal will, however, have to deal with it. 

Guidance to the Tribunal

22 The Tribunal will have to decide whether any, or any combination, of M’s physical symptoms affected her physical act of walking, and if they did, the frequency with which this was likely to happen and the likelihood that this condition would affect the M over the very short distances envisaged by the concept of being virtually unable to walk.

23 The Tribunal will have to take into account not only the parents’ evidence, but that in the other reports, including those of her consultants and clinical psychologist.  It is apparent the consultant’s and her parents’ evidence energetic activity does not necessarily involve episodes of diarrhoea.  M is, according, to her parents, able to participate in martial arts classes, play outside, go to summer camp and church, visit the library and the park, and attend various appointments.  The clinical psychologist was told that M’s diarrhoea was mainly at night (page 12) and that her parents had no significant concerns about areas such as anxiety and social problems (p15).  The psychologist did not report any incident in the course of 3 assessment dates during which the sessions were interrupted by diarrhoea; but report that that, during one assessment, M said she wanted to leave to go shopping, as her mother promised her, as a motivation to attend the sessions (p12).  M’s paediatric consultant confirmed the condition and its severity, and said that (at the time of the last visit, 21/10/10) M had inflammatory bowel disease which was still not in remission.  Although her stooling was less, she still woke 2 – 3 times per night.  Loperamide was added to the other medications M was taking. 

24 These activities, reports and insights may shed light on the frequency and predictability of M’s diarrhoea, as well as the efficacy of precautions that are taken so that M can walk without such episodes. The very short distances involved in the concept of being virtually unable to walk must also be borne in mind.

25 The parents must understand that what is in issue is M’s inability to walk, and not her need for private public transport. 

26 This is enough to dispose of the appeal, which must be remitted to a First-tier Tribunal for careful fact finding on the effects of M’s condition on her ability to walk.  The First-tier Tribunal is the body with the appropriate medical and disability expertise to weigh up the evidence and come to a decision.

27 This leaves the appellant’s submission that M’s human right under article 8 of the ECHR were infringed by refusing her the higher rate of the mobility component.  It is unnecessary for me to address this issue since the appeal can be allowed on the basis of the error of law I have identified and upon which I have set aside the decision.  Suffice it to say that if the appellant wishes to raise this argument before the Tribunal which rehears the appeal, she will be obliged to make full legal submissions on it.

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 7 September 2012