CDLA 2879 2004
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 25 November 2005 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CDLA 2879 2004 |
| Subject Matter | DLA, MA: mobility |
R(DLA) 4/06
|
His Honour Judge Hickinbottom, Chief Commissioner Mr J Mesher, Commissioner Mr C Turnbull, Commissioner 25 January 2005 |
CDLA/2879/2004 CDLA/2899/2004 |
Mobility component – inability or virtual inability to walk – meaning of physical disablement – extent to which physical symptoms resulting from a mental condition can be taken into account
In both cases the claimants claimed entitlement to mobility component of disability living allowance on the basis of virtual inability to walk. In CDLA/2879/2004 the claimant contended that severe low back pain substantially limited his ability to walk. In CDLA/2899/2004 the claimant contended that severe vertigo and dizziness did so. In each case the appeal tribunal decided that the claimant was not entitled, on the ground in CDLA/2879/2004 that, even if there was something physically wrong with his back, there was no physical reason for the severe degree of pain that he experienced, and psychological problems might well be contributing to his walking difficulties, and in CDLA/2899/2004 on the ground that the claimant’s vertigo and dizziness did not have a physical cause, the implication being that these were psychological in origin. The claimants appealed to the Commissioner and the Chief Commissioner directed that, as the appeals raised issues of special legal difficulty on which there were divergent Commissioners’ decisions, they be dealt with by a Tribunal of Commissioners. Under section 73(1)(a) of the Social Security Contributions and Benefits Act 1992 a person qualifies for higher rate mobility component if he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so and regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991 states that “a person is to be taken to satisfy that condition only in if his physical condition as a whole is such that … he is unable to walk … [etc]”. The submission for the claimants was that the restriction is to be defined in terms of the manifestation of the disability, while the Secretary of State contended that it is to be defined in terms of the cause of the disability, thereby restricting entitlement to the higher rate of the mobility component to cases in which the inability or virtual inability to walk has a physical (ie organic) cause.
Held, dismissing the appeals, that:
- in the absence of Harrison v Secretary of State for Social Services [1987] (reported as an Appendix to (R(M) 1/88) the Tribunal of Commissioners would have considered the intention and effect of regulation 12(1)(a) to be that the inability or virtual inability to walk must be the result of an impairment of the claimant’s physical functional capacity and that it is not necessary for the claimant to show that the impairment has an identifiable physical cause (paragraphs 82 to 85);
- however, Harrison is binding authority that where a claimant suffers from physical symptoms or manifestations of a medical condition (whether that condition be physical or mental), it is necessary for him to show an identifiable physical cause for those symptoms or manifestations to satisfy the conditions for entitlement to higher rate mobility component of DLA under section 73(1)(a) of the 1992 Act and regulation 12 of the 1991 Regulations (paragraphs 86 to 101);
- in cases where a claimant’s inability or virtual inability to walk is caused by both physical and mental factors, the claimant is entitled to the higher rate of the mobility component if the physical disorder is a material cause – ie if its contribution to the inability or virtual inability to walk is more than minimal. The physical cause must be still current at the date of the decision-maker’s decision but it does not matter at what point in the chain of causation it comes (paragraphs 116 to 120);
- it may be that tribunals have in the past been too ready to conclude that the fact that no specific identifiable cause for lower back pain and dizziness has been found, despite extensive investigation, means that there is no physical cause (paragraphs 146 and 166);
- in CDLA/2879/2004 the tribunal had erred in assuming that where there is an underlying physical problem, any exacerbation of the pain by reason of psychological problems must be left out of account (paragraph 147);
- in CDLA/2899/2004 the tribunal had erred in failing to state what significance it attributed to medical opinions that the claimant was suffering from uncompensated peripheral vestibular disorder, in failing to consider, in the absence of a diagnosis of mental disorder, whether it was likely that the cause of the claimant’s physical symptoms was mental or psychological before concluding that those symptoms did not have an organic cause, and in failing to correctly identify the grounds for supersession of the existing award of higher rate mobility component (paragraphs 163 to 171).
The Commissioners remitted both cases for rehearing by a differently constituted tribunal.
DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS
- In Case No CDLA/2879/2004, we allow the claimant’s appeal and set aside the decision of the Wakefield appeal tribunal dated 27 May 2004. We direct that the case be remitted to be heard by a differently constituted tribunal, in accordance with our directions set out in paragraph 150 below.
- In Case No CDLA/2899/2004, we allow the claimant’s appeal and set aside the decision of the Birmingham appeal tribunal dated 7 June 2004. We direct that the case be remitted to be heard by a differently constituted tribunal, in accordance with our directions set out in paragraph 170 below.
REASONS
Introduction
- By section 73(1)(a) of the Social Security Contributions and Benefits Act 1992 (the 1992 Act) a person is entitled to the higher rate of the mobility component of disability living allowance (DLA) for any period throughout which “he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so …”.
- In each of the appeals before us the claimant claims entitlement to that higher rate. In the first appeal the claimant (Mr B) contends that severe low back pain substantially limits his ability to walk. In the second appeal the claimant (Mrs H) contends that severe vertigo and dizziness does so. In each case the appeal tribunal decided that the claimant was not entitled. In Mr B’s case this was on the ground that, even if there was something physically wrong with his back, there was no physical reason for the severe degree of pain that he experienced, and psychological problems might well be contributing to his walking difficulties. In Mrs H’s case the tribunal’s decision was on the ground that her vertigo and dizziness did not have a physical cause, the implication being that these were psychological in origin. The claimants now appeal those decisions.
- The appeals raise an important issue as to whether difficulty in walking which is due to pain (in Mr B’s case) or dizziness (in Mrs H’s case) which is found to have no identifiable physical cause falls within section 73(1)(a) of the 1992 Act. The number of previous decisions by Commissioners dealing with this issue – more than twenty were cited to us – and the divergence of views expressed in them amply demonstrates not only the difficulty of the issue but also its practical importance.
- At the hearing of the appeals Daniel Kolinsky of Counsel (instructed by the Child Poverty Action Group) appeared for Mr B. Baljinder Bajwa of the Sandwell Metropolitan Borough Council’s Welfare Rights Unit appeared for Mrs H, and James Maurici of Counsel (instructed by the Solicitor to the Department for Work and Pensions) appeared for the Secretary of State. We are grateful to all of them.
The statutory provisions
- DLA is a non-contributory benefit for people who are so disabled that they need help to cope with their disability. There are two components, designed to assist with care and mobility respectively. There are three rates of the care component, and two rates of the mobility component
- Section 72(1)(a), (b) and (c) of the 1992 Act specifies the basic conditions of entitlement in respect of the three rates of the care component. Each sub-paragraph requires the claimant to be “so severely disabled physically or mentally” that certain specified conditions are fulfilled.
- Section 73 sets out the conditions of entitlement for the...
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