Decision No: C71/97(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 11 March 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	Mrs G... appeals with the leave of a Commissioner against the decision of a Disability Appeal Tribunal (hereinafter called "the Tribunal") dated 11 March 1997.  The claimant set out her grounds of appeal in a letter from her solicitors dated 18 June 1997.  Mr Shaw from Central Adjudication Services made observations on these grounds on 5 February 1998, a copy of which was sent to the claimant.  The claimant's solicitors then added to the original grounds adding to the matter with reference to the observations of Mr Shaw.  An oral hearing was not requested and having perused the papers I am satisfied that I can determine this matter without same.

I consider there was no error of law in the decision of the Tribunal and I dismiss the appeal.

2.	In general terms the claimant's grounds of appeal fell under three main headings as follows:-

(1) The Tribunal had erred in not awarding the low rate mobility component as the claimant required supervision when walking and same could be constituted by reassurance, support and encouragement.  The Tribunal had decided active measures were required.

(2) The Tribunal failed to distinguish between "familiar" and "unfamiliar" routes.

(3) The Tribunal failed to take account of the claimant’s psychological requirements

3.	I should mention that if I considered that the Tribunal had erred as stated by the claimant's solicitors I would allow the appeal with the proviso that as regards the third ground - attention must be in connection with bodily functions; supervision must be to avoid danger and only needs coming from physical or mental disablement can be considered.

4.	I must consider if the Tribunal erred in law.  The Tribunal can do this in one or more ways - by there being a false proposition of law on the face of the decision, by making a decision supported by no evidence, if the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination in question, if there has been a breach of an obligation to act according to the demands of natural justice or if there has been a failure adequately to observe the requirement to set out the reasons for the decision in writing.

5.	I have considered CDLA/042/94, CDLA/2364/94 and C44/95(DLA) and also the case of Mallinson -v- Secretary of State for Social Security [1994] 1WLR and also the other cases cited in the papers.

6.	Mr Shaw mentioned case CDLA/2364/94 with the note that it was likely to be reported.  I should mention as an aside that my note from the Commissioner who decided that case is that it is not suitable for reporting because many Commissioners will disagree with it.  I comment on those decisions below.

7.	In dealing with the low rate mobility component the Tribunal recorded as part of its findings of fact -

"The claimant likes to be accompanied when out of doors.  She is aware 
of her surroundings and does not need to be directed in any way.  She sometimes becomes anxious and would have to stop unless this feeling 
passes before she could continue further.  She does not require to be monitored and if she felt anxious out of doors could communicate this 
to the person accompanying her.  The majority of the Tribunal do not 
find that there is any evidence of clinical panic attacks.  
Miss E…, dissenting, accepts that the claimant suffers from panic 
attacks when walking out of doors and becomes confused when these 
occur, and requires reassurance and assistance which amounts to 
supervision during these episodes from the person accompanying her".

8.	As its reasons for that part of the decision which related to the mobility component the Tribunal recorded:-

"The majority of the Tribunal considered that, although the claimant
sometimes experienced anxiety when out of doors, she did not experience clinical panic attacks which gave rise to a need for guidance or supervision.  She did not require to be monitored for signs of any
need of intervention so as to prevent her ability to take advantage
of the faculty of walking being compromised.  She derives reassurance
from the person accompanying her but no active measures from that
person are required.  We have applied CDLA/42/94.  We consider that
the claimant's ability to walk out doors without guidance or
supervision is the same whether on familiar or unfamiliar routes."

9.	In C44/95(DLA) the Northern Ireland former Chief Commissioner referred to CDLA/042/94.  The Chief Commissioner referred specifically to paragraphs 20, 21 and 22 of that decision with approval.  Paragraph 21 of the GB decision refers to paragraph 19 thereof and to the interpretation of the word "supervision" set out therein.  Commissioner Mesher stated:-
 
"... there is supervision of a claimant's walking when another 
person is accompanying the claimant and is watching over her, in the
sense of monitoring her physical or mental or emotional state for
signs of something that might require some more positive action
by the person to enable or encourage the claimant to continue 
walking (my underlining) or monitoring the route ahead for obstacles, 
dangers or places or situations which might upset or disquiet the 
claimant or otherwise affect her adversely.  Such monitoring is 
supervision even though it never results in the need for more active 
action.  Such action, which might still be essentially precautionary,
can also come within the meaning of supervision.  The sorts of things
I have in mind here are encouraging, persuading or cajoling the
claimant, or providing distraction from possibly alarming situations
by conversation.  I stress again that these are merely examples
of what in my view comes within the ordinary meaning of "supervision"
and I am not purporting to give a definition to be applied 
mechanically to all cases.  In different circumstances other kinds
of action may be supervision."

10.	It will be seen therefore that the Commissioner was of the view that there must be at the least monitoring of the claimant by the accompanying person for the matter to come within the meaning of "supervision".  This is further confirmed in paragraph 22 of the GB decision where at sub-paragraph (k) Commissioner Mesher states:-

"Supervision, in the context of section 73(1)(d), means accompanying
the claimant and at the least monitoring the claimant or the 
circumstances (my underlining) for signs of a need to intervene so as 
to prevent the claimant's ability to take advantage of the faculty of 
walking being compromised."

At sub-paragraph (l) the Commissioner states:-

"The fact that the claimant derives reassurance from the presence of the other person does not prevent action which would otherwise fall (my underlining) within point (j) or (k) from being guidance or supervision."

11.	It will therefore be seen that at no part of this decision does the Commissioner state that mere accompaniment is enough, in fact he is of the view that at least monitoring must take place in addition to accompaniment.

12.	I am in agreement with Commissioner Mesher's interpretation of supervision relating to the mobility component (as set out at paragraph 10 above) and also with the Northern Ireland Chief Commissioner in C44/95(DLA).

13.	The dictionary definition in Collins English Dictionary of "supervision" is overseeing, direction, inspection and control.  Had the legislature wished to provide that mere accompaniment was enough it could easily have done so.  It did not.  The ordinary meaning of the language should not be departed from.  I am not persuaded by the reasoning at paragraph 7(1) of CDLA/2364/1995 in that it reads CDLA/042/94 as saying that the provision of reassurance by the mere presence of a helper was sufficient to constitute reassurance.  In CDLA/2364/1995 at paragraph 7(1) the Commissioner stated:-

"The adjudication officer refers me to several passages from 
CDLA/042/94 which he regards as supporting the claimant's appeal.
Those are the passages in paragraph 6 above and paragraphs 17
to 20 of CDLA/042/94.  Paragraphs 17 to 20 deal with the meaning
of "guidance" and "supervision" as used in section 73(1)(d).  In
those paragraphs the Commissioner expressed the view that "guidance"
could involve physically leading or directing a claimant or oral
suggestion or persuasion.  "Supervision" he regards as including
encouraging, persuading or cajoling the claimant, providing 
distraction from possible alarming situations or the mere provision
of reassurance by the presence of the helper."

I do not at all think that that is what the Commissioner said in CDLA/042/94.  At paragraph 18 of CDLA/042/94 that Commissioner says -

"Supervision may be passive in nature, but it is not constituted by
mere presence.  In the context of the care component of DLA and
of attendance allowance it implies sufficient monitoring to be
able to detect signs of a need for assistance."

At paragraph 19 the Commissioner says:-

"... there is supervision of a claimant's walking when another person
is accompanying the claimant and is watching over her, in the sense
of monitoring her physical or mental or emotional state for signs
of something that might require some more positive action by the
person to enable or encourage the claimant to continue walking or
monitoring the route ahead for obstacles, dangers or places or
situations which might upset or disquiet the claimant or otherwise
affect her adversely."

At paragraph 22 the Commissioner says:-

"Supervision, in the context of section 73(1)(d), means accompanying
the claimant and at the least monitoring the claimant or the 
circumstances for signs of a need to intervene."

It seems to me apparent from the above that the Commissioner in CDLA/042/94 was not of the view that mere accompaniment was enough, he was of the view that there had to be monitoring.  If there was no such monitoring the mere fact that the claimant derived reassurance from the mere accompaniment would be irrelevant.  If the accompanying person did not have to carry out some element of monitoring then this would not constitute supervision.  The fact that a claimant does not derive reassurance from the mere presence of another person is irrelevant to the meaning of supervision in s.73(1)(d).

In CDLA/2364/1995 the Commissioner states at paragraph 16(1):-

"It seems to me that what can be taken from the Mallinson decision
is that "supervision" in the context of section 64(2)(b) and
72(1)(b)(ii) includes any conduct on the part of a person other than
the claimant which avoids substantial danger to the claimant or
others and so achieves the purpose for which benefit is paid under
those two provisions.  Accordingly I can accept that "supervision"
in the context of section 73(1)(d) includes any conduct on the
part of another person which enables a claimant who could not 
otherwise do so to exercise out of doors his faculty of walking.
Therefore "supervision" can include something as non interventional
as the reassurance which in some cases a claimant derives from the
company of another person when he is out of doors."

Having read the judgments in Mallinson (and in particular the lead judgment of Lord Woolf) it does not appear to me that that construction can be taken.  The Commissioner in CDLA/2364/94 does not cite any actual part of the Mallinson judgment but it is likely he was relying on page 30(6) paragraph (a) especially the following sentence "the attention is in connection with the bodily function if it provides a substitute measure of providing what the bodily function would provide if it were not totally or partially impaired".  Lord Woolf was there dealing with the meaning of "in connection with" in the care component conditions, not with the meaning of either attention or supervision.  The meaning of attention was not altered by the circumstances in which it was deemed to be in connection with a bodily function.  By analogy the meaning of "supervision" remains the same whatever its purpose.

14.	I apply the interpretation of supervision in CDLA/042/94.  In the instant case the Tribunal clearly found that the claimant did not require to be monitored and in its reasons it applied CDLA/042/94.  In light of the other findings of fact, which appear to me to be sustainable on the evidence, I consider that the Tribunal was entitled to reach the decision which it did.  It was clearly interpreting the meaning of supervision as did the Commissioner in CDLA/042/94 and I consider it correct in this respect.  In so far as this interpretation differs from that in CDLA/2364/95, I prefer CDLA/042/94 for the reasons given at paragraph 13 above.  I should mention that it is not completely clear from CDLA/2364/95 that the Commissioner considered mere presence to be enough to constitute supervision but his remarks at paragraph 16(1) bear that construction.  For the reasons set out above I prefer CDLA/042/94.

I can see no indication that the Tribunal did not consider encouragement reassurance etc as included in supervision, quite the reverse as it applied CDLA/042/94.  The Tribunal in its reasons was simply making the distinction between a person who finds the mere company of another reassuring without that other having to do any monitoring and the situation where the companion has to monitor and may actually have to actively have to act to reassure the person.  In light of CDLA/042/94 that is a proper distinction to make.

15.	Mr Shaw in his observations made some mention of the Tribunal having found that the claimant did not suffer from clinical panic attacks.  Mr Shaw said "I submit that this too may be indicative of the majority applying the wrong test in section 73(1)(d)".  I fail to see how such a finding can be so interpreted.  The Tribunal was clearly separating feelings of anxiety from clinical panic attacks and such a separation could be very relevant as to whether or not the claimant needed to be supervised.  It was therefore quite proper to make the said finding.

16.	Mr Shaw in his observations expressed the view that the evidence was consistent with an award of the lower rate of the mobility component.  He referred specifically to the Examining Medical Practitioner's report as being sufficient to satisfy the condition for lower rate mobility component (so long as guidance or supervision would enable Mrs G... to make progress on foot in unfamiliar areas most of the time).  Having read the said report in its entirety, I am far from convinced that that is the only conclusion which can be drawn from the said report, indeed I find it difficult to determine the Examining Medical Practitioner's view on the claimant's unsupervised walking ability.  In any event the Tribunal has made findings of fact sustainable on the evidence and given adequate reasons for its decision in this respect.  Its conclusions are reasonable.

17.	For all the above reasons I can see no merit in the first ground of the claimant's appeal.

18.	I turn to the second ground - not distinguishing ability to walk on familiar and unfamiliar routes.  The Tribunal specifically recorded that the claimant's walking ability was the same on familiar as on unfamiliar routes.  It therefore obviously did consider ability on the two types of routes but concluded it was the same on each.  This is a conclusion which it was open to the Tribunal to draw.  I therefore consider there was no merit in the second ground of appeal.

19.	As regards the third ground, ie that psychological requirements were ignored, I again find no merit in same.  The Tribunal evidently did take into account the claimant's mental condition and did consider relevant needs coming from same.  Its findings did not concentrate entirely on physical requirements.  There does not appear to me to be any indication on the face of the decision that the Tribunal erred in law in that respect.  Indeed in finding, as it did, that the claimant's daughter had, at times, to give her reassurance, it accepted that this reassurance was attention.  I do not consider that the Tribunal ignored the claimant's psychological requirements.  It is worthy of note, moreover, that to satisfy the statutory requirements the attention required must be in connection with bodily functions.  Not all encouragement, reassurance etc will fall within that condition.  The fact that a Tribunal does not find that a claimant requires certain attention does not indicate that it has ignored the fact that such attention, if required, would come within the statutory provisions.

20.	I am unable to find any other error in the Tribunal's decision.  I therefore dismiss the appeal.

(Signed):  M F Brown

COMMISSIONER

9 June 1998