Decision No: C60/98(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT
(NORTHERN IRELAND) 1992

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

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner
on a question of law from the decision of
Londonderry Disability Appeal Tribunal
dated 25 November 1997

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant against the decision of a Tribunal to the effect that she was entitled to the middle rate of care component of Disability Living Allowance and she was not entitled to either rate of mobility component of Disability Living Allowance from and including 5 March 1997.  

2.	On 10 August 1998 a Commissioner accepted the late application for leave to appeal for special reasons.  Leave to appeal was granted by a Commissioner on 1 December 1998.

3.	On 5 March 1997 the claimant made a claim for Disability Living Allowance stating that she suffered from epilepsy.  On 28 April 1997 an Adjudication Officer disallowed the claim from and including 5 March 1997.  However on review on 17 July 1997 a different Adjudication Officer reviewed the decision of 28 April 1997 and revised it and awarded the claimant the middle rate care component from 5 March 1997 until 4 March 1999.  The claimant then appealed to a Disability Appeal Tribunal.

4.	The Tribunal found the following findings of fact material to its decision in relation to both components:-

		"1.	Appellant suffers from epilepsy.  Lives with partner and 
			children.

		 2.	Takes a fit about 1/2 x fortnight.  Sometimes gets warning.  
			General Practitioner refers to couple partial seizures.

		 3.	Admits no other health problems.

		 4.	Has concerns for children if alone with them when she takes 
			a fit.

		 5.	Last night-time 'fit' was 3 months ago.

 		 6.	Is receiving middle rate care component (supervision day).  
			Not in issue.

		 7.	Medication just changed to Epilin - 2/3 daily.  Tegretal 
			(previous medication) had side effects when dose increased.

		 8.	No history of status epilepticus.

		 9.	'Seizure' last up to 5 minutes and rests for ½ hour after.

		 10.	Admits can walk but states she needs someone with her outdoors 
			for safety.  Can walk a reasonable distance in reasonable time, 
			speed and manner without severe discomfort.

		 11.	Can take advantage of walking faculty on familiar/unfamiliar 
			routes without guidance/supervision when outdoors most of the 
			time.

		 12.	The exertion of walking could not cause danger to life or 
			serious deterioration to health."

	The Tribunal gave the following reasons for its decision in relation to the care component:-

		"Given the evidence and per our findings and taking frequency and 
		duration of 'fits' into account the Disability Appeal Tribunal is 
		satisfied that the appellant does not require prolonged or repeated 
		attention by night with bodily functions.  We are also satisfied on 
		the evidence that it is not necessary for someone to be awake to 
		watch over appellant for prolonged periods/frequent intervals to 
		avoid risk of substantial danger. General Practitioner also confirms 
		'fits' 1/2 every 2/3 weeks.

		We note period of award of middle rate care component and we also 
		consider this appropriate.  With the new medication the condition 
		may become better controlled.  It may also have been the pregnancy 
		which triggered the condition."

	The Tribunal gave the following reasons for its decision in relation to the mobility component:-

		"The appellant expressed no difference with physically walking and 
		in the evidence we are satisfied that she cannot be considered 
		virtually unable to walk.

		Concerns for the safety of the children was expressed if appellant 
		out alone with them.  However, the Disability appeal Tribunal is 
		satisfied that this type of concern is not covered by the high/low 
		rate mobility component.  We are satisfied that the appellant is not 
		so severely disabled, physically/mentally that she cannot take 
		advantage of her walking faculty, without guidance/supervision, 
		when outdoors most of the time."

	The unanimous decision of the Tribunal in relation to the care component was as follows:-

		"The appellant is not entitled to high rate care component from and 
		including 5 March 1997.  The middle rate is already in payment and 
		is not in issue."

	The unanimous decision of the Tribunal in relation to the mobility component was as follows:-

		"The appellant is not entitled to high/low rate mobility component 
		from and including 5 March 1997."

5.	It is not clear what the claimant's grounds of appeal are, except that she has made the point that on the day of the Tribunal hearing she was nervous and did not explain the full effects of her seizures.  However, Mrs Gunning, the Adjudication Officer now involved in this case, has made a helpful submission by letter dated 28 September 1998 which has greatly assisted me in coming to a conclusion in this case.

6.	In relation to the point raised by the claimant I conclude that the Tribunal cannot be said to have erred if the claimant did not present her case in such a way as to ensure that the Tribunal fully understood the full effects of her seizures.  As Mrs Gunning has submitted, the onus is on the claimant to ensure that she has made the Tribunal fully aware of her condition.  In certain circumstances a Tribunal may be required to investigate matters that have been raised in the evidence but, in my view, in the present case the Tribunal cannot be said to have erred in not taking into account details of the claimant's condition which were never put before the Tribunal.  

7.	In relation to the care component, the Tribunal agreed with the Adjudication Officer that the claimant was entitled to the middle rate on the basis that she required continual supervision throughout the day to avoid substantial danger to herself or others.  To obtain the highest rate the claimant had to establish that at night she either needs (i) prolonged or repeated attention in connection with her bodily functions, or (ii) in order to avoid substantial danger to herself or others she requires another person to be awake for a prolonged period at frequent intervals for the purpose of watching over her (Section 72(1)(b) and (c) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992).  In light of the evidence available the Tribunal was entitled to come to the conclusion that the claimant had not established either of these requirements and, accordingly, there is no error in my view in the Tribunal's decision in this respect.

8.	In relation to the higher rate of the mobility component the claimant does not contend that she is unable or virtually unable to walk.  Accordingly the Tribunal in coming to the decision that she was not entitled to the higher rate cannot be said to have been in error.  

9.	In relation to the lower rate of the mobility component Mrs Gunning made relevant submissions in her letter of 28 September 1998 which, in my view, are worth setting out in full.  She stated as follows:-

		"Lower Rate  The entitlement conditions for receipt of the lower 
		rate are set out in section 73(1)(d) of the Social Security 
		Contributions and Benefits (Northern Ireland) Act 1992 [the 
		Contributions and Benefits Act] which states:

		Subject to the provisions of this Act, a person shall be entitled 
		to the mobility component of a disability living allowance for 
		any period in which he is over the age of 5 and throughout which -

		(a) 	........

		(b) 	........

		(c) 	........

		(d) 	he is able to walk but is so severely disabled physically 
			or mentally that, disregarding any ability he may have to 
			use routes which are familiar to him on his own, he cannot 
			take advantage of the faculty out of doors without guidance 
			or supervision from another person most of the time.

		The meaning of the above section was recently considered by the 
		Northern Ireland Commissioner on C34/98(DLA).  It was held that 
		to satisfy the conditions of the subsection a claimant must show 
		that they are either unable or it would be completely unreasonable 
		to expect them to take advantage of the faculty of walking out of 
		doors on unfamiliar routes without guidance or supervision from 
		another person most of the time.  The Commissioner set out three 
		questions which adjudicating authorities should ask themselves 
		when dealing with entitlement of the lower rate mobility 
		component.  Although that decision was not available at the time 
		of the tribunal's decision in this case it does not introduce a 
		new interpretation of section 73(1)(d).  It merely sets out the 
		approach the tribunal should have taken.

		While the tribunal found as a fact that Mrs C... could take 
		advantage of the faculty of walking outdoors on unfamiliar routes 
		without guidance or supervision most of the time it does not 
		appear to have considered whether it would be completely 
		unreasonable for her to do so.  I submit that by not addressing 
		the question the tribunal erred."

10.	Mrs Commissioner Brown in C34/98(DLA) stated at paragraph 19 as follows:-

		"It therefore seems to me that a claimant, to satisfy the 
		conditions of section 73(1)(d) of the Act has to show that 
		by reason of physical or mental disablement, he is either 
		actually unable or it would be completely unreasonable to 
		expect him to take advantage of his faculty of walking out 
		of doors on unfamiliar routes (and routes are not the same 
		as areas) without guidance or supervision from another person 
		most of the time while walking.  It would not be sufficient to 
		qualify for it merely because it is reasonable for a person to 
		be supervised.  For something to not be allowable (whether by 
		the claimant or another) it must be completely unreasonable.  
		The test of whether or not it is so unreasonable should be an 
		objective standard ie what a reasonable person would consider 
		impermissible.  Tribunals and other adjudicating authorities, 
		when dealing with entitlement to the low rate of the mobility 
		component, should ask themselves the following questions -

		(1)	Can the claimant walk?

		(2)	Is the claimant so severely disabled physically or 
			mentally that, disregarding his ability to use familiar 
			routes on his own, he is actually unable to walk out of 
			doors without guidance or supervision most of the time?

		(3)	Is the claimant so severely disabled physically or mentally 
			that, disregarding his ability to use familiar routes on 
			his own, it would be completely unreasonable to expect him 
			to walk  out of doors without guidance or supervision most 
			of the time?

		If the answer to question 1 and either question 2 or question 3 
		is yes, provided other conditions are satisfied the claimant will 
		be entitled to lower rate mobility component.  If the answer to 
		question 1 is 'no' there will be no such entitlement and if the 
		answer to questions 2 and 3 is 'no' there will be no such 
		entitlement."

11.	In my view Mrs Gunning is correct in submitting that the Tribunal has not considered whether it would be completely unreasonable for the claimant to take advantage of the faculty of walking outdoors on unfamiliar routes without guidance or supervision most of the time.  I therefore conclude that the Tribunal has erred in point of law by not so doing.

12.	However, this conclusion must be viewed in light of the further remarks of Mrs Commissioner Brown in C34/98(DLA) at paragraph 21 where the Commissioner made the following comments which are also relevant to this case:-

		"This is not to say that everyone suffering from epilepsy is 
		entitled to this component.  Each case must be decided 
		individually and obviously the history of previous unsupervised 
		walking, the existence of warnings and the time expired since the 
		last attack, indicating the degree of control, are amongst the 
		factors which may be relevant though this list is not prescriptive 
		or exhaustive."

13.	Mrs Gunning also drew my attention to a further matter which has potential relevance to the decision making process in the present case.  She has noted that the claimant expressed concern for the safety of her children if she was to suffer a seizure when she was out alone with them.  However, as Mrs Gunning has made clear in her letter dated 28 September 1998, the relevant test is whether the claimant can take advantage of the faculty of walking on her own without the added responsibility of having her children with her.  Therefore, in my view, the Tribunal was correct to decide that this type of concern was not covered by the mobility component legislation.

14.	In the circumstances I am satisfied that the Tribunal's decision is erroneous in law for the reasons set out at paragraph 11.   Accordingly I allow the appeal, set aside the decision of the Tribunal and refer the matter back to a differently constituted Tribunal for a rehearing.  This new Tribunal should have regard to what I have said in the course of this decision.

(Signed):  J A H Martin

CHIEF COMMISSIONER

29 March 1999