Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No: CDLA/3614/2012

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright

DECISION

The Upper Tribunal disallows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Rochdale on 8 August 2012 under reference SC944/12/01944 did not involve any material error on a point of law and is not set aside.

This decision is made under section 11 of the Tribunals Courts and Enforcement Act 2007

REASONS FOR DECISION

1.                This is an appeal by the claimant from a decision of the Rochdale First-tier Tribunal (SEC) dated 8 August 2012.  I will refer to this from now on as “the tribunal” and the claimant as the “appellant”. The tribunal dismissed the appellant’s appeal from the Secretary of State for Work and Pension’s decision of 13 March 2012. The Secretary of State’s decision of that date was to the effect that the appellant was entitled on his renewal claim to the lower rate of the mobility component and the lowest rate of the care component of Disability Living Allowance (“DLA”) from and including 29 June 2012. This indefinite award of DLA followed a four year award at the same level.

2.               The essential gist of the appellant’s appeal to the tribunal – at least for the purposes of this further appeal to the Upper Tribunal- was that he ought to be entitled to the higher rate of the mobility component of DLA because his driving licence had been revoked and the added stress of his having to get around in familiar and unfamiliar places would give rise to a serious risk to his mental health.

3.               In his written submissions to the tribunal (page 102), the appellant expanded on this by arguing that the loss of his driving licence would expose him to more danger “because the need to study bus or train timetables and knowing which bus stand to wait at and numbers of buses to catch, will increase stress levels and will have a detrimental effect on a persons mental health”. Based on this, he sought to argue that the physical aspect of the walking requirement in DLA as in interpreted in R(M)3/78 and R(M)1/98 was indirectly discriminatory under section 19 of the Equality Act 2010 as the test placed people with mental health problems at a distinct disadvantage. The focus of the appellant’s argument here was on words “danger to life or serious deterioration in health”. Those words are part of the test that appears in regulation 12(1)(a)(iii) of the Social Security (Disability Living Allowance) Regulations 1991 (the “DLA Regs”). 

4.               As said above, the tribunal dismissed the appeal. The appellant then sought permission to appeal to the Upper Tribunal arguing that R(M)3/78 and R(M)1/98 were wrong in law as a result of the Equality Act 2010 and/or that as a person suffering from a mental health condition he ought to satisfy the danger to life or serious deterioration in health test as walking in a stressful environment ought to be enough.

5.               Permission to appeal to the Upper Tribunal was refused in the first instance by District Tribunal Judge O’Hara on 10 October 2012, but on 26 November 2012 I gave permission to appeal:

“to enable the arguments put forward by [the appellant] concerning the higher rate mobility component to be considered.  My grant of permission to appeal is for this reason only and should not be taken as any indication at this stage that the arguments put forward by [the appellant] have any substantive merit.

In filing his observations on the appeal the Secretary of State is asked to address the following:-

(i)             did the First-tier Tribunal give adequate reasons for rejecting [the appellant’s] argument that (a) he came within regulation 12(1)(a)(iii) of the Social Security (Disability Living Allowance Regulations 1991, or (b) if he did not come within that regulation, that it breached section 19 of the Equality Act 2010?;

(ii)           is regulation 12(1)(a)(iii) referred to immediately above subject to the physical cause test in Harrison (R(M)1/88) and R(DLA) 4/06, and, if so, in what way is causation taken into account under the wording of regulation 12(1)(a)(iii)?;

(iii)         was there any evidence before the First-tier Tribunal (see in particular pages 70-71) that the “exertion required to walk” in regulation 12(1)(a)(iii) would in fact be likely to lead to a serious deterioration in [the appellant’s] health?; and

(iv)          has section 19 of the Equality Act 2010 any application to the statutory test laid down under the said regulation 12(1)(a)(iii), and, if so, what?”

6.               The Secretary of State has filed a long and closely reasoned submission opposing the appeal, dated 22 February 2013.  In his reply dated 25 April 2013 the appellant repeats his previous arguments and says he does not want a hearing of the appeal to the Upper Tribunal.

7.               I do not consider there is any legal merit in the arguments raised by the appellant.  Focusing on the key aspects of the appellant’s arguments, I can give my reasons for dismissing them quite briefly.

8.               Although he has put his case in two different ways it is plain that the crux of the appellant’s argument turns on the scope of regulation 12(1)(a)(iii) of the DLA Regs, as both R(M)3/78 and R(M)1/98 were concerned with its identically worded statutory predecessor. It is important to note what all of regulation 12(1)(a)(iii) provides for, and not just the closing words that the appellant has focused on.  The regulation provides that:

“A person is to be taken to satisfy the conditions mentioned in section 73(1(a) of the Act (unable or virtually unable to walk) only in the following circumstances:

(a)   his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to place of residence or as to place of, or nature of, employment:-

…….(iii) the exertion required to walk would  constitute a danger to his life or would be likely to lead to a serious deterioration in his health..”.

9.               However, as regulation 12 of the DLA Regs itself indicates, it is made under section 73(1)(a) (and s.73(5)) of the Social Security Contributions and Benefits Act 1992 (“SSCBA”) . Section 73(1)(a) of the SSCBA provides as follows:

“…a person shall be entitled to the mobility component of disability living allowance for any period in which he is over the relevant age and throughout which - (a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so…” 

10.            It is immediately apparent that under section 73(1)(a) of the SSCBA the cause of the difficulty walking must be physical. That is the binding effect of the Court of Appeal’s decision in Harrison (appendix to R(M)1/88) as interpreted by the (equally binding) decision of the Tribunal of Commissioners in R(DLA)4/06.

11.             Given the limitation to physical causes of walking difficulties arises under an Act of Parliament, it seems to me that the appellant’s claim that the above rule discriminates against those whose walking problems are caused by mental health problems (as opposed to physical causes), even if otherwise sound, must fail at the outset given the terms of paragraph 1 of schedule 22 to the Equality Act 2010. This provides that the provisions of Parts 3 to 7 of the Equality Act 2010 are not contravened if the step in dispute is required by an Act of Parliament. 

12.            Section 19 of the Equality Act 2010 does not appear in Parts 3 to 7 of the Equality Act 2010, appearing instead in Part 2. This, however, does not assist the appellant. This is for two reasons. First, section 73(1)(a) of the SSCBA arguably directly discriminates against the mentally disabled or mentally ill. Second, section 19 does not of itself give rise to any cause of action but merely describes what is meant by “indirect discrimination”. Like most of the rest of Part 2 of the Equality Act 2010 it is concerned only with fleshing out the rules or concepts that inform how the causes of action identified elsewhere in the Act are to be worked out. It is more like a definitions section or an interpretation section of an Act; but of itself it gives rise to no cause of action. If any cause of action does arise in respect of the Secretary of State’s or tribunal’s decision-making here it must be under Part 3 of the Equality Act 2010 (though for myself I fail to see how in either case a “service” is being provided when all the Secretary of State and tribunal was doing was faithfully applying s.73(1)(a) of the SSCBA), but such decisions are insulated from such challenges by virtue of the said schedule 22.

13.            That disposes of the Equality Act 2010 argument.

14.            Turning back then to the terms of regulation 12(1)(a)(iii) of the DLA Regs, the appellant is faced with a number of real difficulties with his argument.

(i)             Firstly, the danger to life or serious deterioration in his health must arise from the exertion required to walk. It is not enough that these consequences arise merely from the act of being out of doors: see Hewitt –v- Chief Adjudication Officer (R(DLA)6/99). Some of the appellant’s evidence, however, seemed to be directed to the consequences for him merely of being out of doors without his car, or travelling by public transport, rather than being related to the exertive act of walking itself.

(ii)           Secondly, it is the exertion required to walk that falls to be taken into account and not other acts that a person may have to engage in in order to “get around” outdoors. To that extent, even if it is not shut out under the physical qualification referred to immediately below, reading of a bus timetable axiomatically seems to me to have nothing to do with the act of walking itself (in the Lees (R(M)1/84) sense of putting one foot in front of another), given it is concerned with facilitating a person to stop walking or get around other than by walking. In other words, the stressful acts relied on in the main by the appellant have nothing to do with the act of walking itself.

(iii)         Thirdly, and perhaps most importantly, I accept following R(M)1/88 and R(DLA)4/06, and given that the words that the words “physical condition as a whole” are placed in regulation 12(1)(a) of the DLA Regs to cover all of sub-paragraphs (i) to (iii), that regulation 12(1)(a)(iii) is concerned with the physical exertion to walk and not the mental exertion to do so.  Accordingly, the mental difficulty in reading, for example, bus timetables, and the mental stress that may bring on, cannot fall within the “exertion” test under regulation 12(1)(a)(iii) of the DLA Regs. Moreover, even under the R(DLA)4/06 – admittedly not directly on regulation 12(1)(a)(iii) – the test even absent Harrison required that the difficulty walking had to arise from a physical restriction of function (whether caused by an underlying physical or mental condition), and such a physical function would not seem to be in play here.  

(iv)          Fourthly and lastly, even assuming in the appellant’s favour that none of the above was the case and his mental exertion could count, there is, in my judgment, a significant lack of evidence presented by the appellant to show that such stress (of, for example, reading a bus timetable) would constitute a danger to his life or would be likely to lead to a serious deterioration in his health.  However, I say no more about this as it is on one analysis an irrelevant consideration given that under (ii) and (iii) above the appellant case does not fall within regulation 12(1)(a)(iii) of the DLA Regs in any event.

15.            It is for these reasons that I dismiss this appeal and leave the decision of the tribunal to stand. The tribunal may not have dealt with the above arguments as fully as I have and may even be said to have not addressed them adequately; but any error in terms of the adequacy of the tribunal’s reasoning was not material because, to be blunt, the appellant’s arguments get him nowhere.

 (Signed) S. M. Wright

Judge of the Upper Tribunal

Dated 5^th August 2013