Decision No:  C21/04-05(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated  27 November 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This case commences as an application by the claimant for leave to appeal against a decision dated 27 November 2003 of an Appeal Tribunal sitting at Armagh.  That Tribunal disallowed the claimant’s appeal in relation to disability living allowance (DLA) and decided that she was not entitled to any component of that allowance from and including 31 January 2003.  The claimant sought leave to appeal to a Commissioner on an OSSC1 form received in the Commissioners office on 25 March 2004.  I held a hearing of the application on 7 October 2004 at which the claimant was represented by Mr Druse, of the Citizens Advice Bureau, Armagh and the Department was represented by Ms Fleming of the Decision Making Services  (DMS).  Following the hearing I requested further submissions. In response additional submissions were made by Mr Druse by letter dated 10 November 2004 and by Ms Fleming by letter dated 5 November 2004.  I am grateful to both representatives for their assistance in this matter.  I grant leave and with the consent of both representatives treat the application as the appeal and proceed to determine any issues arising thereon as if they arose on appeal.  My decision is given in the final paragraph.

2.	The ground of appeal to me was that the Tribunal had erred in misapplying the law relating to the lower rate of the mobility component namely section 73(1)(d) of the Social Security Contributions and Benefits (NI) Act 1992.  Section 73(1) so far as relevant reads as follows:-

“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 relevant age and throughout which -

(a)	[not relevant]
(b)	[not relevant]

(c)	[not relevant]

(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 can not take advantage of the faculty, out of doors without guidance or supervision from another person most of the time.”

3.	The claimant was over the relevant age.

4.	Essentially the ground of appeal was based on a submission that the test in section 73(1)(d) did not relate only to unfamiliar routes but to both familiar and unfamiliar routes and that the Tribunal had not applied the test properly.  In Mr Druse’s submission its decision was therefore in error of law.  In a document attached to the OSSC1 form Mr Druse stated that he had made the explicit point that both familiar and unfamiliar routes must be included in a written submission to the Tribunal prior to the hearing.   The Tribunal’s reasons suggested that it had erred in exactly the same way as the Department had been alleged to be in error.  Mr Druse therefore submitted that the Tribunal’s error could not be said to be simply lack of rigour in writing up the reasons.  He submitted (relying on CIS/3299/1997 and CIB/4189/1997) that, it being a matter for speculation as to whether the Tribunal had ever considered unfamiliar routes, it had refused to take account of matters of which it ought to take account and therefore had erred in law.  I had requested submissions as to whether a person who was able to take advantage of the faculty of walking on unfamiliar routes without guidance or supervision most of the time could satisfy section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.   In response thereto Mr Druse submitted that taking my wording literally the answer must be “No” because a person who can take advantage of the faculty out of doors without guidance or supervision most of the time fails the test by definition.  However, he submitted that the enquiry was about just one element of the test, namely unfamiliar routes whereas by law “most of the time” applied to familiar and unfamiliar routes.  Mr Druse referred to reported decision R(DLA)6/03 – a decision of Mr Commissioner Rowland in Great Britain and asked me to review it.

5.	Ms Fleming opposed the appeal.  She submitted that, although the Tribunal had not specifically referred to familiar routes in its reasons, it was implicit in the reasons that as the Tribunal had clearly found that the claimant did not reasonably require guidance or supervision when walking out of doors for most of the time on unfamiliar routes then she would not require guidance or supervision most of the time on familiar routes.  She accordingly submitted that the Tribunal had taken into consideration the claimant’s guidance and supervision needs on both familiar and unfamiliar routes and had not erred in law.  In her further submissions, following my request, Ms Fleming submitted that the evidence indicated that the claimant’s ability to take advantage of her faculty of walking was worse on unfamiliar routes.

6.	In so far as relevant to the lower rate of the mobility component the Tribunal’s reasons were as follows: -

“We have carefully considered all the documents prepared and submitted in evidence in this case and conclude that [the claimant] is not entitled to the Mobility Component or the Care Component of Disability Living Allowance from and including 31.1.2003.  In determining this appeal we have only taken into account the relevant circumstances applying at the date of the decision under appeal (ie the decision dated 24.2.2003).

Unfortunately [the claimant] did not attend the hearing, despite our request that she should do so (See Record of Proceedings dated 15.8.2003).  She was examined by the Examining Medical Practitioner on 20.2.2003.  The Examining Medical Practitioner was satisfied that she could walk 150 metres in a reasonable time and manner without severe discomfort.  Whilst [the claimant] indicated that she would panic if alone and if she was in a crowded place there is nothing in the evidence to indicate that she reasonably requires guidance or supervision when walking outdoors for most of the time on unfamiliar routes.  Accordingly the Lower Rate of the Mobility Component is not appropriate.”

7.	The Examining Medical Practitioner’s report referred to is that dated 20 February 2003 wherein the claimant stated at Section 3 thereof when asked to describe the help needed when walking outdoors:

“I do not go out alone – I would panic if alone if I was in a crowded busy place.  I could maybe go into a local less crowded shop.  My friends mostly come to visit me.  I did visit more when my husband was living”.

8.	The Doctor was asked to give his views on any need for guidance or supervision at Part 5 paragraph 2(h) of the report and he stated: -

“Maybe unhappy and anxious in crowded places but not locally.”

9. 	The claimant herself in her claim form had stated at Section 4 thereof when she was asked to describe in her own words the problems she had and the help she needed when outdoors: -

“I suffer from anxiety and depression and do not go out all on my own.  I suffer acute anxiety and become confused and need someone with me to ensure my safety.”

She also stated that she fell and stumbled due to her legs and back getting stiff making it hard for her to move and that if she fell she would need help to get up.  She stated that she fell regularly.

10.	With regard to the falls and stumbles her statement to the examining doctor was: -

“I am not falling.”

11.	A GP factual report was also obtained dated 22 November 2002.  In that report the GP was asked to indicate any impairment of gait or balance and he stated in reply: -

“No data.”

The GP was also asked whether or not he was aware of any attention and or supervision required from another person to enable the claimant to get around in unfamiliar surroundings for most of the time and he replied “No”.  He was also asked whether there was a history of falls and his reply yet again was:

“No data.”

He did state that the claimant suffered from chronic depression and chronic low blood pressure.

12.	Mr Druse did make a lengthy written submission to the Tribunal in relation to section 73(1)(d) and the need to consider familiar and unfamiliar routes.

13.	It does appear to me that on the evidence the Tribunal was entitled to its conclusion that the claimant did not reasonably require guidance or supervision when walking outdoors for most of the time on unfamiliar routes.  At the hearing before me Mr Druse indicated that the claimant had particular problems on familiar routes as she feared meeting people she knew.  This is of course an additional submission and it was certainly not made to the Tribunal at any time.  The evidence before the Tribunal was that she had the same problems on all routes but was better in familiar areas in that she could go to local shops on her own.

14.	The Tribunal has made no specific finding as to walking on familiar routes.    It has expressly recorded that the claimant did not require guidance or supervision most of the time when walking on unfamiliar routes and has stated that “Accordingly the Lower Rate of the Mobility Component is not appropriate.”

15.	In passing I should mention that Mr Druse having made the detailed submission (on the need to consider overall walking ability) which he did to the Tribunal I would have preferred that the Tribunal had made specific mention of that submission.  However, the Tribunal’s express reasoning is clear and sufficient to explain the decision.  It considered that because the claimant could walk outdoors for most of the time on unfamiliar routes without requiring guidance or supervision she could not be entitled to the lower rate of the mobility component.  The Tribunal has not commented on whether familiar and unfamiliar routes should be taken into consideration.  It has reached an express conclusion that no guidance or supervision was required on unfamiliar routes.  I consider it was entitled to this conclusion on the basis of the accepted evidence.  I also consider that, the evidence being as it was and tending to there being somewhat less needs on familiar routes, the Tribunal was entitled to conclude from its finding on unfamiliar routes that the claimant did not satisfy the conditions of section 73(1)(d).  Had the evidence been otherwise my decision might have been different.

16.	As regards reasoning, the reasons must be read against the background of the evidence and the issues raised.  The evidence, as mentioned earlier did not indicate that there were any problems in familiar routes which did not exist on unfamiliar routes.  Mr Druse, in his submission to the Tribunal did not so indicate.  I agree with his submission in so far as I consider that the starting point for consideration of section 73(1)(d) is overall walking ability on all routes.  However, in this case, that point, on the evidence before the Tribunal, had no real relevance.  While, therefore, I would strongly have preferred the Tribunal to comment on the matter, I do not consider that the absence of such comment in this case renders the reasons inadequate.  Essentially the claimant was stating that the ability to take advantage of the faculty of walking was either the same or better on familiar routes than it was on unfamiliar ones.  The Tribunal found (justifiably on the evidence) that the claimant did not require the relevant guidance or supervision on unfamiliar routes.  It is therefore apparent that there was no real need for it to make separate comment on her ability on familiar routes, that ability being, on the evidence, either the same or better.

17.	I consider it noteworthy that at no stage did the claimant ever make the point to the Tribunal, in her claim form or in any other statements that she made, that her ability was worse on familiar routes.  This omission is the more surprising because of Mr Druse’s subsequent statement to me that she was worse on routes she knew.  No such evidence was given to the Tribunal nor does the submission by Mr Druse to the Tribunal make mention of it.  I do not consider that the Tribunal failed to consider ability on familiar routes.  There was evidence from both the EMP and the claimant herself which covered both and it is quite apparent that the Tribunal considered all the evidence.

18.	I therefore, do not consider that it failed to take into account matters which it ought to have taken into account.  Had it done so I would have considered it to have erred but I do not consider that it did so.

19.	As regards decision R(DLA)6/03 – this decision in so far as relevant to the present case is to the effect that a tribunal must “ignore any ability to use familiar routes but is not entitled to ignore any inability to use familiar routes”  [paragraph 3].  I agree but in this case I do not consider any such inability was ignored.  Rather it was considered that the relevant inability did not exist.

20.	I therefore do not consider that the Tribunal erred in law.

21.	That disposes of the appeal.  However the submissions raise issues which though not strictly relevant are of some concern to me.  Firstly the consideration of unfamiliar routes may include the consideration of routes other than familiar routes whether those routes are in familiar or unfamiliar areas.  The disregard in section 73(1)(d) is of the ability to use familiar routes.  It is not of the ability to go about in familiar areas on other than familiar routes.  I have commented on this matter in earlier decisions and would simply state here that the disregard is, in my view, a very narrow one and that “familiar routes” in this context is likely to mean well known or customarily used routes.  However, I express no concluded view, the matter not being central to my decision here.

22.	Secondly, it is apparent from the wording of section 73(1)(d) that only limitations on the ability to take advantage of the faculty of walking out of doors which come from disability are able to be taken into account.  Matters of, economic limitations, geographical residence etc cannot influence the findings in this matter.  Leaving out the disregard of ability to use routes which are familiar to a claimant on his own the relevant provision reads:

“he is able to walk but is so severely disabled physically or mentally that … he can not take advantage of the faculty, out of doors without guidance or supervision from another person most of the time.” 

I find it difficult to envisage how a person with untrammelled ability to take advantage of the faculty of walking on any route but the familiar or in any area but the familiar could be said to be unable to take advantage of the faculty of walking without the relevant guidance or supervision most of the time.  The phrase “cannot take advantage of” has been decided to be of wider impact than “cannot exercise” (the former phraseology) but the inability to take advantage must still come from disablement and section 73(1)(d) makes no mention of routes or areas apart from the very specific disregard.  However that is not a matter which I have to decide in this case and again my views are not concluded.

23.	The appeal is dismissed.

(Signed)	M F Brown
Commissioner

9 December 2004