[2006] NISSCSC C17_06_07(DLA) (15 August 2006)

Decision No:  C17/06-07(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 20 July 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of the tribunal to the effect that the claimant did not satisfy the conditions of entitlement for an award of any rate of the care component or either rate of the mobility component of disability living allowance (DLA) from 27 October 2004.

2.	Leave to appeal is granted.

3.	By virtue of regulation 11(3) of the Social Security Commissioners (Procedure) Regulations (Northern Ireland) 1999, I treat and determine this application as an appeal as both parties have given their consent.

4.	The claimant, who is represented by Councillor K……, submitted that the tribunal erred in law.  At the hearing of the application for leave he made it clear that the only point that he was now relying upon was a legal issue raised by Mr Kirk, on behalf of the Department, in written submissions to the Commissioner.

5.	Mr Kirk of Decision Making Services, on behalf of the Department, submitted that the tribunal erred in law in its reasoning in deciding whether or not the claimant satisfied the conditions of entitlement for the low rate mobility component.  He pointed out that in order to satisfy the conditions for the low rate mobility component, a person must be so severely disabled physically or mentally that he or she requires guidance or supervision when walking outdoors for most of the time – see section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  

6.	Mr Kirk pointed out that the tribunal had stated in its reasoning as follows:

“Although appellant states that she has constant supervision in familiar and unfamiliar surroundings, we feel this is not reasonably required, considering this lady drives a people carrier with her mother and children in the car and can react appropriately to road and weather conditions as needed.”

	He also pointed out that the claimant in her self-assessment forms had stated that she did not drive a car on her own.  Moreover, in her letter of appeal, she stated that she did not travel by car unless an adult was with her.  

7.	Mr Kirk submitted that the tribunal erred in correlating the fact that the claimant can drive and cope with road and weather conditions with being able to walk in unfamiliar routes without guidance or supervision.

8.	Mr Kirk noted that the tribunal did not conclude that the claimant could drive a car on her own but rather the evidence and findings from the evidence indicate that she did not feel comfortable on her own while being outdoors.  He submitted that there was an onus on the tribunal in the circumstances to investigate this aspect of the case.  He also submitted that the tribunal ought to have dealt with the specific issue of the claimant’s ability to walk on unfamiliar routes.  He submitted, finally, that the tribunal had “taken a step too far” in finding that the “appellant does not require supervision/guidance outdoors on unfamiliar routes for most of the time”.

9.	Mr K…..adopted Mr Kirk’s submissions.

10.	The test set out by the tribunal is obviously an incorrect test for lower rate mobility.  However, the record of proceedings makes it clear that the claimant’s ability to go to a shop and ask for directions was considered by the tribunal.  Additionally it was put to her that the examining medical practitioner “seemed to think you’d be alright out on your own”.  Moreover, in the tribunal’s reasons, it is also stated that “We accept [the claimant] states she never goes out alone, … but find there is no medical reason why this should be so”.

11.	It is possible that the tribunal made an overall assessment, using the correct test and drawing on her ability, to drive to conclude that, in her case, there was evidence corroborating the tribunal’s view that she could go out alone if she wished so to do.

12.	However, with some diffidence I conclude, to use Mr Kirk’s expression, that would be “a step too far”.  Although the evidence that the claimant can drive a car is obviously significant, it cannot be crucial in itself, especially where the role of the claimant’s mother during the driving has not been clarified.  In addition, while the ability to drive and ability to walk are often related abilities, it is far from axiomatic that the abilities are necessarily connected.

13.	Therefore, I conclude that Mr Kirk’s submission, supported by Mr K……, is correct.  Accordingly I allow the claimant’s appeal, set aside the tribunal’s decision and refer the case back to be redecided by a differently constituted tribunal.  However, the fact that this appeal to a Commissioner has been successful should not be taken as an indication of the ultimate success of the claimant’s appeal to a tribunal.

(signed):  J A H Martin QC

Chief Commissioner

15 August 2006