Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                       Case No.  CDLA/1819/2010

ADMINISTRATIVE APPEALS CHAMBER

Before:           Judge of the Upper Tribunal S J Pacey

Decision:        The decision of the appeal tribunal held on 17 May 2010 is set aside for error of law and the appeal remitted for rehearing before a fresh First-tier Tribunal (Social Entitlement Chamber).

REASONS

1.     This is an appeal brought on behalf of the Secretary of State, by my permission, and is against the decision of the tribunal which decided that the claimant was entitled to the higher rate of the mobility component of disability living allowance.  The appeal is based on a point of law, namely the correct application of the relevant legislative provisions (as interpreted in caselaw) to the claimant’s circumstances.

2.        The claimant had indefinite awards of the lower rate of the mobility component and the middle rate of the care component of disability living allowance, running from 16 January 1999.  The claimant has the tragic misfortune to be registered blind.  In the first claim pack he said that because he could not see he needed a guide, to warn him, for example, of hazards, and he said that he had a need for support because he suffered from dizzy spells which could lead to him becoming anxious and panicky.  He went on to refer to his need for attention in connection with bodily functions but the only issue before the Upper Tribunal is that in relation to the mobility component.

3.        By an application made on 21 October 2009 the claimant sought a supersession of the awarding decision.  He maintained that his various medical conditions (not limited to loss of sight) had worsened in that his vision had deteriorated, he had become unsure, nervous and depressed and  his balance had been affected, exacerbating his other medical problems.  The tenor of the application for supersession indicates that at the time of the original application for DLA the claimant had some, but no useful, vision and that his already limited vision had grown worse by the time of the application for supersession.  In that application the claimant reiterated that he needed physical support when walking because of his lack of vision and disorientation and balance problems.  The decision maker, in substance, refused to supersede the awarding decision and the claimant appealed to the tribunal.

4.        The claimant attended the hearing before the tribunal and gave evidence.  The tribunal recited the (undisputed) adjudication history and from the way in which they framed their decision they accepted the evidence of the claimant.  They found that the claimant was not able to walk unless physically supported by another person and that since the original award he had become disorientated, resulting in falls if not supported.  Clearly, then, the tribunal found that there had been a material change in circumstances in the claimant’s condition, sufficient to warrant a supersession of the awarding decision.  The crux of the tribunal’s reasons appear in paragraph 22:

“The tribunal accepted the appellant’s evidence that his balance had deteriorated to such an extent that he was unable to make progress on foot outside in any meaningful way unless he was able to hold on to the person guiding him.  Although he could physically put one foot in front of the other to undertake the physical act of walking, he could not get to where he wanted to go without having someone to physically support him so that he was enabled to stay on his feet.  The appellant was therefore unable to walk or at the very least virtually unable to walk.”

5.        The Secretary of State’s representative applied to the First-tier Tribunal for permission to appeal on the essential basis that the decision of the tribunal was erroneous in point of law since, it was argued, the approach adopted by the tribunal was inconsistent with Lees v Secretary of State for Social Services (reported as an appendix to R(M)1/84).   The application for permission to appeal was refused by a District Tribunal Judge.  Under rule 39(4)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 a statement of reasons has to be provided for any refusal of permission to appeal.  The District Tribunal Judge simply said that permission to appeal was refused because no question of law arose.  Clearly it did, given the terms of the application made on behalf of the Secretary of State.  The District Tribunal Judge did not otherwise address the merits of the application other than to say that the tribunal made adequate findings of fact and provided adequate reasons for their decision.  The challenge mounted on behalf of the Secretary of State did not, however, lie in this regard.  I granted permission to appeal because it seemed clear to me that an obvious point of law arose. 

6.        The Secretary of State’s representative relies upon the grounds advanced as set out in the application.  A copy of that application has been sent to the claimant who, perfectly understandably if I may say so, has said that the further appellate proceedings have “…caused frustration and trauma to an already difficult situation.”  In the determination of the application for permission to appeal I indicated to the claimant that, since matters of law were in issue, he might wish to take advice about his position and the further conduct of the appeal and I indicated possible sources of that advice.  The claimant remains unrepresented and has not commented on the legal arguments put forward on behalf of the Secretary of State.  I am sure that the Secretary of State’s representative, like me, has no wish whatsoever to add to or exacerbate the tragic misfortunes that life has heaped upon the claimant.  I hope the claimant will not think that I am patronising when I say that he clearly needs all the help and support he can get.  Disability living allowance is, however, a creature of statute and whether the claimant was entitled to the higher rate of the mobility component was dependent upon a correct application of the relevant statutory provisions, as explained in the Lees case. 

7.        The Lees case dealt with mobility allowance.  That has been replaced by the mobility component of disability living allowance.  Lees also addressed the proper interpretation of section 37A of the Social Security Act 1975 and the Mobility Allowance Amendment Regulations 1979.  They are, respectively, replicated in section 73(1)(a) of the Social Security Contributions & Benefits Act 1992 and regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991.  Section 73(1)(a) provides for entitlement to the mobility component of disability living allowance if the claimant is suffering from physical disablement such that he is either unable to walk or virtually unable to do so.  So far as is material regulation 12(1) of the DLA Regulations provides that a person shall be taken to be virtually unable to walk if his physical condition as a whole is such that “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.        There are clear and inescapable parallels between the Lees case and the instant appeal.   In that case the claimant also had loss of vision and it was accepted that “outdoor walking is only feasible with the help of an intelligent adult to pilot her”.   The tribunal in that case dismissed the appeal on the basis that the legislative provisions then in force did not provide that a blind person could qualify for an allowance in circumstances where, although in fact physically capable of walking, he could only go out when accompanied by a sighted person as a guide.  The Social Security Commissioner agreed with the decision of the tribunal finding that the legislative provisions limited eligibility for the allowance to those who were incapable of the physical act of walking, or virtually so.  The Court of Appeal agreed with that conclusion.  So did the House of Lords, whose decision is binding upon the Secretary of State, First-tier Tribunals and the Upper Tribunal.  The House of Lords agreed with the reasoning of the Commissioner.  He said “[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 physical walking.  I appreciate, of course, that the consequences of the claimant’s tragic disability is that, although she can walk, she cannot control without assistance a direction in which she walks, she has an ability to walk, but an inability to make proper use of the faculty”.

9.        The instant tribunal to my mind erred in law.  That is because they found that the claimant was unable to walk but, inconsistently with that finding, accepted that he could undertake the physical act of walking.  Their approach is, I am afraid, totally at variance with what was held in Lees and on that basis alone their decision must be set aside.  This apart the tribunal went on to consider the question of “virtually unable to walk”  but they did not address any of the statutory criteria as set out in regulation 12(1)(a)(ii) of the DLA Regulations.

10.      I have considered whether to remake the decision of the tribunal, to whatever effect.  I do not think that it is right that I should do so.  Although the claimant’s loss of vision cannot alone result in entitlement to the higher rate of the mobility component (since Lees, in summary, holds that the inability to direct movement is irrelevant to the statutory conditions) I note that the claimant also complained of other matters.  Anxiety and panic attacks are, of course, catered for in the lower rate of the mobility component.  The claimant also complained, however, of dizziness and loss of balance. These factors may be relevant because they affect the manner of walking or, in an extreme case, even the ability to walk at all.  It may be, for example, in a given case that no amount of guidance or support will prevent falls, which may be of such severity and frequency that the claimant in a particular case could be said to be unable or virtually unable to walk (see CDLA/1639/2006).  These are matters that require investigation by the fact finding tribunal, in relation to regulation 12.  Such findings of fact are absent from the decision of the instant tribunal and, then, I must remit the appeal for rehearing before a fresh tribunal.  My having done so is not an indication of the claimant’s eventual prospects of success.  I hope that, as before, he will opt for an oral hearing before the tribunal so that they can make a properly informed decision.  They will need to adopt the approach indicated in Lees and make proper findings of fact of all matters arising for consideration under regulation 12.  As they will appreciate they will, of course, also need to address supersession criteria although no issue has been taken in relation to the claimant’s evidence that his condition materially deteriorated.

                                               (Signed)

                                                                                               S J Pacey

                                                                                               Judge of the Upper Tribunal

                                               (Date)                                    24 November 2010