IN THE UPPER TRIBUNAL Case No  CDLA/3317/2012

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE FORDHAM QC

Decision:  The appeal is allowed. The decision of the First-tier Tribunal (the tribunal) sitting at Lincoln on 11 May 2012 under reference SC040/11/01790 involved the making of an error on a point of law. The tribunal’s decision is set aside and the case remitted to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in the final paragraph of the Reasons below.

REASONS FOR DECISION

1.          On 2 September 2011 (page 57) the Secretary of State rejected the claimant’s claim for disability living allowance (DLA), as to (a) mobility component and (b) care component. On 23 June 2012 the tribunal gave its reasons (page 66) for refusing the claimant’s appeal, after a hearing on 11 May 2012. This is the claimant’s appeal from the tribunal’s decision. No oral hearing of this appeal has been requested by either party and I am satisfied in all the circumstances that I can proceed to determine this appeal properly and justly without one.

2.          In my judgment, the tribunal made an error on a point of law at §5 of its reasoned decision (page 67), dealing with mobility component. The position is as follows:

(1)       Having described the claimant’s mental difficulties at §4, the tribunal was addressing mobility component (lower rate) at §5. The question was whether the claimant is so severely disabled physically or mentally that he cannot take advantage of the faculty of walking out of doors, at least on unfamiliar routes, without guidance or supervision from another person most of the time: section 73(1)(d) of the Social Security Contributions and Benefits Act 1992.

(2)       The tribunal’s ultimate conclusion on that point was reasoned as follows (§5): “We … found that it was unlikely that the [claimant] would avail himself of the accompaniment of another person in mobilising nor pay much heed to any supervision or guidance”.

(3)       It is evident that the tribunal regarded “guidance or supervision” which helped an individual to walk out of doors safely as being relevant to the statutory test. In my judgment, that was correct. Section 73(1)(d) reversed the decision in Lees [1985] 1 AC 930, which concerned a blind woman who was physically able to walk, but needed assistance in order to do so. The case of a person who is blind, and will not walk alone out of doors because it is unsafe to do so without assistance, can plainly succeed under the statutory test. But so in my judgment can the case of a person who is blind and will walk alone out of doors though it is unsafe to do so, but needs assistance in order to do so safely. I do not consider Parliament can have intended a different result. As explained in R (DLA) 4/01, the phrase “guidance or supervision” includes “supervision to avoid substantial danger”. If that logic holds for an individual whose safety is compromised through their being blind, the same logic must in my judgment hold where safety is compromised through relevant mental difficulties.

(4)       That means the claimant in this case had put forward a relevant claim. Although there was a reference to him being able to “walk to various destinations independently” (page 44), his claim said: “I regularly walk across the road without looking. I need prompting constantly to look both ways” (page 15). His support walker had stated (page 121): “Every time I cross the road with [the claimant] I have to remind him to look before he crosses as otherwise he just walks straight out, there has been a number of occasions where I have had to grab his arm and pull him back to save him [from] walking out in front of a car”. There was a safety issue.

(5)       The tribunal did not ask and answer the question posed by the statute. It did not ask whether, without guidance or supervision, the claimant could walk out of doors safely. It did not conclude that he could.

(6)       The tribunal was making a different point. It was concerned as to whether guidance or supervision – even if needed – could make a difference to the claimant. The tribunal was concerned that he would not take advantage of it, or heed it, and so it would be pointless. There is room within the statutory scheme for such questions. There is a question, pursuant to section 73(8) of the 1992 Act, whether a claimant’s condition permits him to benefit from enhanced facilities for locomotion. But the tribunal did not address that question in that way. Nor was this a case like CDLA/2364/95, where the individual had a condition which meant they would not walk out of doors at all, even with the guidance or supervision.

(7)       So, the doubt expressed by the tribunal was about whether the claimant’s ability to walk safely would be enhanced by supervision or guidance. In my judgment, the proper and most helpful approach in such a case is to be found in the analysis by the Northern Ireland Court of Appeal in Mongan v Department for Social Development [2005] NICA 16 at §20. It is to the following effect. Supervision and guidance can include “monitoring of the claimant by a person capable of intervening to assist where necessary”. It is sufficient if such “assistance and supervision would overcome the disability to some extent” or, put another way, would “increase the claimant’s capability”. If not, it can be regarded as “pointless”.

(8)       In the present case, the tribunal did not find that supervision or guidance could not, not even “to some extent”, overcome the danger faced by the claimant when walking out of doors unaccompanied. The tribunal did not find that supervision or guidance could not increase the claimant’s capability to walk safely out of doors. The reasons at §5 did not, in my judgment, go that far. Indeed, had the tribunal thought supervision and guidance was pointless in that sense, it would need to have grappled with the evidence about the support worker’s past actions (§2(4) above). On the face of it, they indicated that guidance or supervision could help, at least to some extent.

(9)       It is worth remembering, as Commissioner Rowland pointed out in CDLA/2106/2002 at §4 that the statutory test is not directly concerned with paying for guidance and supervision when walking on unfamiliar routes; rather the section “provides a test to enable it to be determined whether a person’s practical mobility is sufficiently limited to justify financial help being provided”.

3.          This point was the basis on which permission to appeal was granted (page 92). The Secretary of State has not sought to defend the tribunal’s reasoning in this respect, but has submitted that – notwithstanding that the tribunal’s reasoning may be fallible – the evidence does not support an award (page 126 §6, page 127 §13). In my judgment, the outcome of this case cannot be characterised as inevitable to make the tribunal’s error of approach immaterial. Further, I consider it appropriate to remit the case for reconsideration on the facts and merits by the specialist first tier tribunal. I do not therefore need to analyse the related point which arose at §6 of the reasons in relation to care needs, as to whether the claimant would be “more likely than not to reject or avoid” supervision.

4.          I find that the tribunal’s decision involved the making of an error of law. Further findings of fact are necessary in order to determine this case correctly. The decision cannot stand and the case must be remitted to the tribunal. I need not address other aspects of mobility component or care component, nor the other matters raised by the parties. That is because I am in any event satisfied that it is appropriate on remittal for all issues and all DLA components to be determined afresh by the tribunal, on the factual merits. It could not be in the interests of justice to restrict the scope of the remitted appeal hearing, and the claimant is entitled to advance all points on their merits at the fresh hearing.

Directions

5.          The differently constituted tribunal must conduct a complete rehearing of the issues that are raised by this appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. The tribunal must deal with any procedural questions, as may arise, on their merits. The tribunal must consider all aspects of the case, both fact and law, entirely afresh. The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against – see section 12(8)(b) of the 1998 Act – but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of the decision: R(DLA)2/01 and 3/01.

MJ Fordham QC

Judge of the Upper Tribunal

17 May 2013