Decision No: C33/96(DLA)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
	(NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
	(NORTHERN IRELAND) ACT 1992

	DISABILITY LIVING ALLOWANCE

	Appeal to the Social Security Commissioner
	on a question of law from the decision of the
	Belfast Disability Appeal Tribunal
	dated 12 December 1995

	DECISION OF THE SOCIAL SECURITY COMMISSIONER
					
1.	This is an appeal by the claimant against the decision which of a Disability Appeal Tribunal (DAT) which held that she was not entitled to either component of disability appeal living allowance (DLA). 

2.	The facts are that the claimant is a lady of 33 years of age who suffers from chondromalacia which restricts her mobility.  She made a claim for DLA on 4 January 1995, her claim was disallowed and she requested a review which was carried out but the decision was not revised.  Claimant appealed to a DAT and the Adjudication Officer in his submission to that Tribunal conceded -

		"I would submit that although Mrs P... is able to walk in the
		mornings by evening her condition has deteriorated to such an
		extent that she is virtually unable to walk.  I would therefore
		concede subject to the approval of the tribunal that Mrs P...
		is entitled to the high rate mobility component."

3.	The Tribunal made the following findings of fact in relation to her mobility claim:-

		"The Claimant suffers from Chondromalacia which limits her
		mobility but she is not unable or virtually unable to walk.
		She does not require guidance or supervision in connection
		with her mobility."

	and gave reasons for disallowing the appeal as:-

		"The Claimant's walking ability fluctuates according to the
		time of day.  In the morning she is able to do her housework
		and her shopping but by the afternoon she may tire and her 
		walking ability may be reduced.  If she does not over-exert
		herself in the morning her walking ability may continue into
		the afternoon.  Resting her legs leads to an improvement in
		walking ability.  The Claimant is able to organise her life
		so that she can marshall her walking ability for times of
		maximum need."

4.	The claimant sought leave to appeal against that decision on the grounds that the Tribunal erred in law in that "the facts so found are such that no person acting judicially or properly instructed as to the relevant law could have come to the determination in question".  Having received the grounds of appeal the Adjudication Officer responded as follows:-

		"1.	The appeal to the Commissioner asserts that the tribunal
			applied an additional test for the higher rate mobility
			component to those laid down in S73(1)(a) of the Social
			Security Contributions and Benefits (NI) Act 1992.  The
			tribunal found that walking ability fluctuated according
			to the time of day, though the findings go on to indicate
			that it depends on how much the claimant has exerted 
			herself, with rest leading to an improvement in the 
			walking ability.  The appeal relies on the reason for 
			rejection recorded by the chairman, which was that the 
			claimant is able to organise her life so that she can
			marshall her walking ability for times of maximum need.

		2.	I submit that the correct approach to the test in S73(1)(a)
			may be found in the wording of regulation 12(1)(a)(ii) of
			the Disability Living Allowance Regulations-

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

			I submit that the use of the term "his physical condition
			as a whole" indicates that the adjudicating authority must
			have regard to the condition in the round, as it were, as 
			opposed to being selective by basing the decision on good
			days as opposed to bad days, or (as here) on the good parts of a day as opposed to the bad parts.  The purpose of the test seems to be to arrive at an overall view of the 
			physical condition, which requires account to be taken of
			fluctuations.

		3.	I submit that support for this approach is to be found in
			CM/125/1989, in which the Commissioner says "A person whose walking ability varies may qualify ... if, taken as a whole, her condition is such that she can be considered virtually unable to walk" (paragraph 5).  In paragraph 6 the Commissioner holds that full account must be taken of the words "physical condition as a whole", and that accordingly account must be taken of fluctuations in walking ability.  While this decision concerned walking ability which varied daily, I submit that there is no reason to take a different approach in the case of variations over shorter periods.

		4.	CDLA/641/1995 is a similar case, where the claimant was 
			housebound on some three days per week.  The Commissioner said it was necessary for the tribunal to consider the claimant's ability to walk "in the round".  The fact that a person could walk a reasonable distance on some days does not necessarily mean that he does not satisfy the condition, if he is virtually unable to walk on other days.

		5.	The Commissioner may wish to consider whether the tribunal, rather than applying an additional test, applied the test in regulation 12(1)(a)(ii) incorrectly."

5.	I have considered the decision of the Tribunal.  The findings of the Tribunal are scant but I am satisfied that the Tribunal erred in that it did not consider her physical condition as a whole.  I therefore allow the appeal and set aside the decision of the Tribunal.

6.	I am very surprised that in the light of the concession by the Adjudication Officer to the Tribunal that no mention was even made in the Tribunal's report that the Adjudication Officer was of the opinion that claimant was entitled to the higher rate mobility component.  One may be lead to the conclusion that that point was completely missed by the Tribunal.  Nevertheless I am satisfied that this is a case in which I should give the decision which the Tribunal should have given.  I have considered the cases mentioned by the Adjudication Officer in his comments on the reasons for appeal.  I am satisfied that CM/125/1989 and CDLA/641/1995 support the proposition that in circumstances such as those in which the claimant finds herself she is on the whole virtually unable to walk.  The fact that a person could walk a reasonable distance at some time of the day does not necessarily mean that that person does not satisfy the conditions if he is virtually unable to walk on other days or at other times of the same day.  I am satisfied therefore that claimant is entitled to the higher rate mobility component from 4 January 1995 for life and I am satisfied that the Adjudication Officer's concession to the Tribunal was a proper one and should not have been ignored.

(Signed):	C C G McNally

COMMISSIONER

4 December 1996