Hewitt v. Chief Adjudication Officer CDLA 15997 1996
| Jurisdiction | UK Non-devolved |
| Judge | N/A |
| Judgment Date | 29 June 1998 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | DLA, MA: mobility |
| Docket Number | CDLA 15997 1996 |
| Appellant | Hewitt v. Chief Adjudication Officer |
R(DLA) 6/99
(Hewitt v. Chief Adjudication Officer
Diment v. Chief Adjudication Officer)
CA (Simon Brown,Ward and Schiemann LJJ) CDLA/15997/1996
29.6.98 CDLA/12653/1996
Mobility component - persons suffering from porphyria causing skin to blister when exposed to daylight - whether virtually unable to walk
Both claimants suffered from porphyria which is a complaint which causes the skin to blister when exposed to daylight. In both cases tribunals found that, whilst the claimants could physically walk, their condition meant that their “ability to walk out of doors [was] 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 [they] could make progress on foot without severe discomfort that [they were] virtually unable to walk” within the meaning of regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991. The Commissioner allowed the adjudication officers’ appeals and held that the claimants were not entitled to the mobility component of disability living allowance because, for regulation 12(1)(a)(ii) to apply, “severe discomfort” limiting the ability to walk must be brought on by the actual physical act of walking. The claimants appealed to the Court of Appeal
Held, dismissing the appeals, that
- the central focus of the regulation was the ability to move on foot: Lees v. Secretary of State for Social Services [1985] 1 AC 930
2. (per Simon Brown LJ) the reference to the “ability to walk out of doors” was contained in the regulation because the physical problems of walking out of doors were generally greater than those indoors;
3. the regulation was not directed to the fact of being out of doors but to the physical act of walking;
- the “severe discomfort” to which regulation 12(1)(a)(ii) referred must therefore arise from the physical act of walking itself.
DECISION OF THE COURT OF APPEAL
Mr. R. Drabble QC (instructed by Richard Poynter, London N8) appeared on behalf of the Appellant.
Mr. J. R. McManus (instructed by the Solicitor to the Departments of Social Security and Health) appeared on behalf of the Respondent.
LORD JUSTICE SIMON BROWN:
Both appellants suffer from porphyria, a condition which effectively precludes their exposure to daylight. The question raised by these appeals is whether, on that account, their “ability to walk out of doors is so limited, as regards the distance over which... or the length of time for which . . . [they] can make progress on foot without severe discomfort, that [they are] virtually unable to walk”, within the meaning of regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991, as amended (“the Regulations”). If it is, their appeals succeed and they qualify for the higher rate of the mobility component of disability living allowance.
Their appeals are brought against decisions of a Social Security Commissioner, Mr. Goodman, dated 19 December 1996, in each case allowing the adjudication officer’s appeals against decisions of the respective Disability Appeal Tribunals. Mr. Hewitt had succeeded before the Manchester Tribunal on 17 April 1996; Mr. Diment before the Sutton Tribunal on 10 November 1995. In Mr. Hewitt’s case the tribunal’s findings of fact were these:
“The moment the appellant steps into the daylight his skin breaks out into itching blobs which turn into blisters giving second degree burns equivalent. We find that this immediately causes severe discomfort. The appellant can physically walk. He suffers from the rare disease of erythropolectic protoporphyria and no precautions can prevent his skin blistering when exposed to daylight.”
The reasons for this decision were these:
“The appellant can physically walk. His physical condition as a whole is such that his ability to walk out of doors as regards the distance over which or the speed at which or the length of time or the manner for which he can make progress on foot is nil, without severe discomfort and thus he is virtually unable to walk.”
In Mr. Diment’s case, the Tribunal’s central findings of fact were these:
“As a result of the claimant’s condition he is unable to go out into the daylight unless he has total protection. The effect of daylight is to cause a blistering to the claimant’s skin which leaves permanent scarring. The blistering and irritation to the claimant’s skin can start within 5 minutes of him leaving his own home causing him considerable discomfort and making him run for cover from daylight.
The claimant has to have blood transfusions every month and his eyes have also been affected by the sunlight causing them to be ulcerated.
The Tribunal are satisfied that because of the claimant’s condition he is virtually unable to walk because of the severe discomfort he suffers in the act of walking when exposed to daylight.
The Tribunal find that it is not reasonable that his mobility should be restricted to night time hours but the walking test must be applied in normal circumstances namely in the day time.”
The Social Security Commissioner allowed the adjudication officer’s appeals on the basis that, to qualify under this regulation, the “severe discomfort” to which it refers must be brought on by the actual physical act of walking, not, as here, merely by the fact of being out of doors. Is that the correct interpretation of regulation 12(1)(a)(ii)? That is the issue before us.
With that brief introduction, let me at once set out the relevant statutory provisions. First, the material parts of section 73 of the Social Security Contributions and Benefits Act 1992 which governs entitlement to the mobility...
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