DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Paula Gray

DECISION

This appeal by the claimant succeeds.

Permission to appeal having been given by me on 16 February 2015 in accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and rule 40(3) of the Tribunals Procedure (Upper Tribunal) Rules 2008 I set aside the decision of the First-tier Tribunal sitting at Cardiff and made on 22 August 2014  under reference SC 188/14/01037. I refer the matter to a completely differently constituted panel in the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision in accordance with the directions given below.

DIRECTIONS

1. These directions may be amended or supplemented by those of a District Tribunal Judge at the listing stage.
2. The case will be listed before a differently constituted panel as an oral hearing. The new panel will make its own findings and decision on all relevant matters, noting the reasons that the matter has been remitted.
3. The parties should send to the HMCTS Cardiff First-tier Tribunal office as soon as possible any further relevant written medical or other evidence, if there is any.  If they cannot send that evidence promptly the parties will need to contact that office to let them know that further evidence is expected.  This is not to suggest that any further evidence is required or expected.
4. The appellant must understand that the new tribunal will be looking at KC- May’s health problems and how they affected her daily activities at the time that the decision under appeal was made, 27 February 2014 and  any further evidence, to be relevant, should shed light on the position at that time. 
5. The Secretary of State has confirmed in his submission that no further claim has been made.
6. The clerk to the First-Tier Tribunal shall send a copy of this decision, together with the submission of the Secretary of State to the presiding judge of the original First-Tier Tribunal. 

REASONS

Background

1. This appeal concerned the entitlement to DLA of a little girl aged 6 at the date of the decision under appeal. She had an award of the care component at the middle rate between 18 June 2012 and 17 June 2014, however that award was changed by the Secretary of State in a decision made on 28 February 2014 to one of the lowest rate of the care component only from 27 February 2014 to 26 February 2016.  That decision was a supersession decision, and KC-May’s mother, who is appointee for her daughter, appealed it to the first-tier tribunal (FTT).
2. The issues for that tribunal (which will remain the issues for the fresh tribunal) were whether there were grounds to supersede the previous award, and if so whether the appropriate award was one of the lowest rate of the care component and no mobility component entitlement.  
3. The FTT confirmed the decision under appeal.  I granted permission to appeal, accepting that the various points made in the application for permission to appeal were arguable.
4. In fact the parties are now both in agreement that the decision of the FTT was made in error of law, the legal errors primarily concerning the approach taken by the FTT to the medical evidence put forward by the mother on behalf of her daughter.
5. The issues are well set out in the grounds of appeal which are in my bundle at page 261 to 263, and are also very helpfully expanded and dealt with in the submission behalf of the Secretary of State that pages 267 to 281.  Given that situation, and the agreement between the parties, I need only be brief.

The issues before me

6. The grounds of appeal, which I said were arguable, had three essential points.  The first two related to inadequate treatment of the medical evidence provided by the mother, firstly as to the interpretation of some of that evidence on the basis of an underlying assumption made by the FTT which was neither rational nor had it been put to the mother for her comment or explanation; secondly as to the failure to mention other aspects of the same doctor’s evidence which might have had bearing upon that assumption.  The third ground concerned what was said to be an error in the application of the appropriate test in respect of the lower rate mobility component.
7. The criticism of the FTT’s treatment of the medical evidence, which I share, is neither to deny nor minimise the right of the FTT to accept or reject evidence in its fact-finding capacity. That right, however, carries with it the responsibility to explain how it arrived at the facts that it finds.
8. In this case the FTT seemed to adopt an underlying assumption as to the meaning of Dr Davies’ statement that KC-May’s parents would be more aware of her specific difficulties than he, the assumption being that his (apparent) lack of knowledge meant that the parents had not mentioned any difficulties to him.  From that assumption the tribunal drew the conclusion that KC-May’s parents were exaggerating her difficulties in the claim and before it.  That path was both conceptually wrong and ignored other potentially contradictory evidence from the same doctor; the assumption was additionally unfair to the parents in that until it appeared in the judgement it had not been mentioned; they had not been given an opportunity to deal with the assumption at the hearing despite its outcome determinative consequence.  The Secretary of State’s submission at paragraph 2 deals well with this matter.
9. As to the third ground of appeal, which related to a quite separate issue, this FTT adopted what seems to me an all too common position in relation to the possible application of the lower rate of the mobility component.

Lower rate mobility

10.  It was said in the statement of reasons at paragraph 9

“The tribunal did not accept that any 6 year old would be allowed to go on unfamiliar routes on their own and that all would require guidance or supervision outdoors.”

11. The argument posits that no 6 year old should be left unsupervised on an unfamiliar route (or possibly at all) and therefore no 6 year old can qualify for that component of DLA.  This approach ignores the important fact that Parliament has legislated to the effect that the lower rate of the mobility component is available to children over 5.  (Social Security Contributions and Benefits Act 1992 section 73 (1) (1A) (b)).  The legislation  is not, however, a green light for parents to allow 5-year-olds to scamper around the countryside unsupervised, because the proper application of the provision includes, critically, an additional test which must be satisfied before an award of the lower rate of the mobility component can be made in respect of any period that a person under 16.  That test prevents parents or carers of children being awarded benefit for simply doing what all parents or carers must do in respect of children.  An award can only be made where, due to disability, the supervision or guidance required is of a different order to that. There is a similar (but not identical) provision in relation to the care component.
12. To set out the test in its proper legal form section 73 (1) (d) of the Social Security Contributions and Benefits Act 1992 provides for a person’s entitlement to the mobility component if

(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time. 

That is qualified by section 73 (4A)

(4A) in its application to a person in relation to so much of the period as falls before the day on which he reaches the age of 16, subsection (1) has effect subject to the modification that the conditions mentioned in paragraph (d) shall not be satisfied unless –

(a)  he requires substantially more guidance or supervision from another person or persons of his age in normal physical and mental health would require, or

(b)  persons of his age in normal physical and mental health would not require such guidance or supervision.

13. Accordingly the guidance or supervision that all young children require out of doors because of traffic and other hazards such as getting lost will not attract an award, but where something further is required most of the time because of the child’s disability an award may be made.  A systematic analysis is needed to establish what supervision or guidance is established, and whether that guidance satisfies one of the subtly differing limbs under the test in paragraph (4A). 
14. The issue has recently been the subject of a decision of this tribunal and I turn to the judgement of Upper Tribunal Judge Markus QC in the case of BM-v- SSWP(DLA) [2015] UK UT 18 (AAC). 
15. Following a careful analysis of the similar test in relation to the care component, in respect of the lower rate of the mobility component she explains:

 43. I find that the tribunal did err in law in deciding that the appellant was not entitled to the lower rate mobility component.  In KM [a reference to KM v Secretary of State for Work and Pensions [2013] UKUT 159 AAC] the three judge panel decided that section 73 requires a similar “fact finding” approach to that required by section 72.  They went on to say:

“55. The statutory tests are in our view less complex than those relating to the care component. As mentioned earlier, in our view section 73(1)(d) (which was the basis of the claim here, and in CDLA/1983/2006) together with the comparison required by section 73(4A) provide an effectively self contained test to which that fact finding process can be applied.

56. In doing that, as Judge Jupp points out, the decision-maker must identify (and so the F-tT must make findings on) on whether the claimant can or cannot take advantage of the faculty of being able to walk out of doors without guidance or supervision from another person most of the time (disregarding any ability to use routes that are familiar to him). This will involve a consideration of, for example, the claimant’s ability to read signs, his appreciation of risks and dangers, his sense of direction and his ability to return to a known and familiar place.

57. The comments in respect of the comparison required by section 72(1A) also apply, with appropriate modifications to take account of the differently worded comparison in section 73(4A)(a) and (b), which is focused on section 73(1)(d).”

44.The comments referred to at paragraph 57 are found in the judgment in KM at paragraph 51. In essence they are to the effect that the proper approach as set out in the judgment will assist in identifying the relevant matters under section 72(1A) and (4A).

45.The starting point for the tribunal in the present case should have been to identify what relevant assistance the appellant required when walking out of doors. This may not be limited to guidance in crossing the road.  Indeed, as the Secretary of State has pointed out, the claim form completed on behalf of the appellant identified a number of difficulties which might bring his case within section 73(1)(d). The tribunal would then have to identify the nature and degree of any guidance or supervision that is required and whether it is substantially more than or different from that required by a 6 year old in normal physical and mental health.  Even if the only assistance that he required was guidance in crossing the road, the fact that all 6 year olds need guidance in crossing the road does not dispose of the case.  It all depends on whether he needs substantially more guidance or different guidance.

16. I cannot improve upon Judge Markus’ guidance to the FTT.
17. In conclusion I must caution the appellant that her success here is not a guarantee of success at the re-hearing.

Upper Tribunal Judge Gray

(Signed on the original on 22 May 2015)