CDLA 714 1998
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 15 June 2000 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CDLA 714 1998 |
| Subject Matter | DLA, MA: mobility |
R(DLA) 4/01
Judge K. Machin QC CDLA/714/1998
Mr. J. Mesher CDLA/2560/1999
Mr. A. Lloyd -Davies CDLA/414/1999
15.6.00 CDLA/823/1999
Mobility component - lower rate - whether guidance or supervision also constituting attention or supervision for the purposes of the care component may be taken into account
Mobility component - pre-lingually deaf - whether guidance or supervision arising from fear and anxiety may be considered
In each of these four cases it was accepted that the claimant was, by any criteria, severely disabled, one of the claimants suffering from post-traumatic stress disorder, one suffering from epilepsy, and the other two having been profoundly deaf since birth. The question of whether severity of disablement is to be treated as a separate and additional test of entitlement or is to be judged by reference to the statutory criteria relating to care or mobility needs and as part of those criteria was therefore not in issue. In each case the claimant had been awarded some rate of the care component of disability living allowance. The main issue in these appeals, and one which had caused a divergence of views amongst Commissioners, was whether supervision or attention requirements which qualify or which might go towards qualifying a claimant for an award of the care component under section 72 of the Social Security Contributions and Benefits Act 1992 should or should not be taken into account when assessing the need for supervision or guidance under section 73(1)(d) of that Act. The other issues were whether the words “cannot take advantage of” should be subject to some implied qualification and, in the cases involving the pre-lingually deaf claimants: (i) whether any attention with the bodily function of hearing which counted towards potential entitlement to the care component should be disregarded; (ii) whether a pre-lingually deaf person with consequent severely impaired comprehension of English, who was too frightened or nervous to walk on unfamiliar routes and never did so unaccompanied, could ever be entitled to the lower rate of mobility component; and (iii) whether “guidance” included assistance with communication in order to ask for directions
Held, in each case allowing the appeal, that
- in determining whether a claimant cannot take advantage of the faculty of walking out of doors without guidance or supervision for most of the time, the fact that the guidance or supervision necessary, or elements of that guidance or supervision, may also constitute attention or supervision which qualifies, or could go towards qualifying, the claimant to entitlement to the care component is to be ignored (paragraph 14, and paragraphs 11 and 13 for the reasons for rejecting the submissions to the contrary on behalf of the Secretary of State) and Commissioners’ decisions to the contrary, including CDLA/757/1994, are not to be followed
- the application of the words “cannot take advantage of” in particular cases is left to the good sense of decision-makers and tribunals (para. 15);
- in relation to deaf claimants, and in particular the pre-lingually deaf: (i) attention with the bodily function of hearing is not to be disregarded (para. 17); (ii) fear or anxiety (not in itself amounting to a physical or mental disability) which results from the disablement may be taken into account (para. 18); and (iii) in some cases of a limited ability to communicate and to receive information, a need for guidance from another person most of the time may be made out (para. 19).
In case CDLA/2560/1998 the tribunal substituted its own decision awarding lower rate mobility component in addition to the existing award of middle rate care component (which was not in dispute); the tribunal remitted each of the other three cases for rehearing by a new tribunal.
DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS
1. The decision of the tribunal of Commissioners in the four appeals is as follows:
(a) In appeal CDLA/714/1998 (“Case A”), the claimant’s appeal against the decision of the Central London disability appeal tribunal dated 19 September 1996 is allowed. The tribunal’s decision is set aside as erroneous in point of law, for the reasons given in paragraphs 21 to 23 below. The claimant’s appeal against the adjudication officer’s decision dated 7 July 1995 is referred to an appeal tribunal constituted under the Social Security Act 1998 and regulation 36(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 for determination in accordance with the directions given below (Social Security Act 1998, section 14(8)(b)).
(b) In appeal CDLA/2560/1998 (“Case B”), the claimant’s appeal against the decision of the Swansea disability appeal tribunal dated 17 December 1997 is allowed. The tribunal’s decision is set aside as erroneous in point of law, for the reasons given in paragraphs 24 and 25 below. It is expedient to substitute a decision on the claimant’s appeal against the adjudication officer’s decision issued on 21 March 1993, on the findings of fact made by the tribunal (Social Security Act 1998, section 14(8)(a)(i)). That decision is that the claimant is entitled to the middle rate of the care component of disability living allowance for the period from 25 June 1993 to 24 June 1998 and to the lower rate of the mobility component for the same period.
(c) In appeal CDLA/414/1999 (“Case C”), the claimant’s appeal against the decision of the Oxford disability appeal tribunal dated 12 August 1998 is allowed. The tribunal’s decision is set aside as erroneous in point of law, for the reasons given in paragraphs 26 to 28 below. The claimant’s appeal against the adjudication officer’s decision dated 4 February 1998 is referred to an appeal tribunal constituted under the Social Security Act 1998 and regulation 36(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 for determination in accordance with the directions given in paragraph 28 below (Social Security Act 1998, section 14(8)(b)).
(d) In appeal CDLA/823/1999 (“Case D”), the adjudication officer’s appeal against the decision of the Oxford disability appeal tribunal dated 12 August 1998 is allowed. The tribunal’s decision is set aside as erroneous in point of law, for the reasons given in paragraphs 29 to 34 below. The claimant’s appeal against the adjudication officer’s decision dated 23 July 1997 is referred to an appeal tribunal constituted under the Social Security Act 1998 and regulation 36(6) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 for determination in accordance with the directions given in paragraph 34 below (Social Security Act 1998, section 14(8)(b)).
2. Each of these appeals arises out of a claim for disability living allowance. In each case the claimant was awarded some rate of the care component. However, in each case the principal question that arises is whether the disability appeal tribunal correctly approached the question of the claimant’s entitlement or otherwise to the lower rate of the mobility component of disability living allowance and, in particular, how, if at all, considerations relevant to an award of the care component may affect entitlement to the lower rate of the mobility component. The Chief Commissioner directed that the appeals be determined by a tribunal of Commissioners. Since the four appeals raised related issues they were heard by the tribunal at one oral hearing. In each case the claimant was represented by Mr. Richard Drabble QC and the Secretary of State (who has by virtue of the provisions of the Social Security Act 1998 succeeded to the functions of adjudication officers) by Mr. David Forsdick of Counsel. At the end of the oral hearing we gave Mr. Drabble the opportunity of making a further written submission in reply because the way in which the case for the Secretary of State was put altered during the course of the hearing. Mr. Drabble took advantage of that opportunity. We are indebted to counsel for the submissions made, both written and oral.
Background
3. In order that the legal issues that arise may be better understood we give a brief background to each of the four cases.
(1) In Case A the claimant, who comes from Somalia, suffered terrible injuries during the civil war in that country. However his principal disability is post‑traumatic stress disorder arising from what happened to him and what he saw during that civil war. The tribunal awarded the claimant the highest rate of the care component for the period from 21 September 1994 to 20 September 1997 on the grounds that during the day he required continual supervision and at...
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