Decision No:  C22/05-06(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 16 June 2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by me, by the claimant, against a decision dated 16 June 2005 of an appeal tribunal sitting at Belfast.  That tribunal decided that from 16 September 2004 the claimant was not entitled to either the care or the mobility component of disability living allowance (DLA).

2.	The background history to the case was that the claimant had had an award of the higher rate of the mobility component and the middle rate of the care component of DLA from and including 7 March 1994.  By a supersession decision dated 16 September 2004 this award was reduced to the higher rate of the mobility component and the lower rate of the care component.  The claimant appealed to the tribunal which removed the award completely.  The claimant did not attend the tribunal hearing.  By letter dated 3 June 2005, received in the tribunal office on 8 June 2005, she stated that she would not be able to attend as the hearing was much too early for her because she did not have much mobility in the mornings and depended on getting help with dressing and breakfast.  The claimant did not seek an adjournment but indicated some dissatisfaction with how her appeal had been dealt with prior to the tribunal and made some observations about the medical evidence supplied by her general practitioner.  She requested the tribunal to proceed in her absence and she did not give consent for the panel to have sight of the general practitioner records.  

3.	The Department’s submission to the tribunal, of which the claimant had a copy well prior to the hearing, set out the Department’s view that grounds to supersede the awarding decision of 21 June 1994 had been established and asked the tribunal to consider if the award of the higher rate mobility component remained appropriate.  The Department also submitted that the lower rate of the mobility component was not appropriate.  The submission also stated that the award of the lowest rate care component was not disputed by the claimant or the Department and therefore need not be considered by the tribunal in the current appeal unless evidence became available on the day of the hearing casting doubt on the validity of the award.  The tribunal’s record of proceedings indicates that the Department was represented at hearing by Mrs Murphy.  It indicates that the tribunal considered adjourning and asked Mrs Murphy to leave the tribunal room for 5 minutes while the matter of adjournment was being considered.  It then notes that the panel decided to proceed and Mrs Murphy returned to the tribunal room.  Mrs Murphy then asked the tribunal if both the awards of the high rate mobility and lower rate care were still appropriate and indicated that her instructions were also to query the care component.  The tribunal, it appears, proceeded with the hearing and proceeded to make the decision outlined above which is the one under appeal to me.

4.	In the appeal to me the Department is represented by Miss Fleming of its Decision Making Services branch and the claimant is represented by Mr McVeigh of Citizens Advice Bureau.  I am grateful to both representatives for their assistance in this matter.  Both representatives are agreed that the tribunal should have adjourned to warn the claimant that the award of the lower rate of the care component was at risk and that it erred in law in not so doing.  I agree with them in that respect.  I set the tribunal’s decision aside for that reason.  This is a case where the claimant was quite unaware that the lower rate of the care component was being queried.  I consider that the claimant was on notice that the higher rate of the mobility component was being queried and had no grounds for objecting to that being looked at but the papers give no indication that the lower rate of the care component was being queried.  There was, in the above circumstances, a breach of the rules of natural justice in the tribunal not adjourning when it was considering removal of the care component award.

5.	Mr McVeigh also put forward a second ground of appeal which is opposed by the Department.  This was that the tribunal had misinterpreted the statutory test for entitlement to the lower rate of the mobility component as set out in section 73(1)(d) of the Social Security (Contributions and Benefits) Act 1992.  This section provides for entitlement to a rate of the mobility component to a person for any period when he/she satisfies certain other conditions and throughout which:

“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.”

6.	Mr McVeigh made reference to the tribunal’s findings as follows:

“Appellant drives an automatic car on a regular basis.  She can therefore plan a journey – even a short one and react to road conditions.  We feel Appellant is therefore clearheaded and competent enough not to require supervision/guidance outdoors when walking on unfamiliar routes for most of the time”.

	Mr McVeigh relied on decision CDLA/2462/2003, a decision of Mr Commissioner Jacobs in Great Britain, which stated as follows:

“The tribunal went wrong in law in respect of the mobility component at the lower rate.  It relied on evidence of journeys by the claimant to show that she did not satisfy the conditions of entitlement for this rate.  However, as her representative points out in the application, the tribunal did not make any findings on whether or not the routes involved were familiar to the claimant.  If they were familiar to her, the fact that she was able to travel over them was no indication of her ability to manage an unfamiliar route.  This is sufficient to make the tribunal’s decision wrong in law.”

7.	The Department submits that in the claimant’s appeal it was not the evidence of journeys themselves which led the tribunal to conclude that the conditions of entitlement to the lower rate of the mobility component were not satisfied.  Based on the claimant’s ability to drive, plan a journey and react to road conditions the tribunal deduced that she was clear headed and competent.  In the Department’s submission it was the tribunal’s finding that she was clear headed and competent which led to its conclusion that the conditions of entitlement to the lower rate of the mobility component were not satisfied.  The Department therefore opposed this ground.  

8.	Mr Commissioner Jacobs’ decision in the above case is brief and I cannot decipher therefrom what was the evidence of the journeys by the claimant on which the decision was based.  It is, however, important to note the terms of the disregard in section 73(1)(d).  This is a disregard of the claimant’s ability to use routes which are familiar to him on his own.  The word “use” in that context appears to me to relate to the ability to take advantage of the faculty of walking out of doors.

9.	I consider that Mr McVeigh is incorrect in his submission.  I consider the Department’s submission to be correct in that the tribunal concluded that the ability to plan a journey, drive a car and therefore react to road conditions was indicative of clear headedness and competency.  Such clear headedness and competency is a matter which is obviously relevant to the ability to walk on unfamiliar routes without guidance or supervision.  I consider the Department to be correct that it was the possession of those abilities upon which the tribunal relied, not the claimant’s ability to use familiar routes.  When driving no matter whether a route is familiar or not there can be varying traffic conditions, emergency situations, pedestrians etc.  The ability to drive even on familiar routes is evidence of clear headedness and competency.   It is quite obvious from the tribunal’s findings, where it specifically referred to the ability to walk on unfamiliar routes, that it has not misinterpreted the test for the lower rate of the mobility component.  It has merely used the evidence of driving as showing clear headedness and competency indicative of ability to walk unsupervised and unaccompanied.

10.	The tribunal’s decision is set aside for the failure to adjourn.  I do not consider that this is a case where I can give the decision which the tribunal should have given.  I therefore remit the matter to a differently constituted tribunal for rehearing and redetermination.  The claimant should make every effort to attend that tribunal.  She should be aware that the tribunal may consider the high and low rate mobility component and that the existing award of the lower rate of the care component may also be considered.

(signed):  M F Brown

Commissioner

16 May 2006