CDLA/1961/2009

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

Decision 

1. This appeal by the claimant succeeds. In accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal sitting in Derby and made on 27th March 2009 under reference 034/09/00094. I refer the matter to a completely differently constituted tribunal in the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision in accordance with the directions given below. 

Directions

2. The claimant should consider requesting the tribunal to hold an oral hearing and in default of such request consideration should in any event be given as to whether an oral hearing should be held. The parties should regard themselves as being on notice to send to the clerk to the tribunal as soon as is practicable any further relevant written medical or other evidence. The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course. 

Background and Procedure

3. I do not propose to go into unnecessary detail. The new tribunal will in any event have to consider all of the evidence and entitlement to all rates of both components of disability living allowance (“DLA”). 

4. The claimant is a man who was born on 19th January 1951. He has had various difficulties, including depression, epilepsy and angina. An award had been made of middle rate care component (day supervision needs) and lower rate mobility component of DLA from 13th December 2002 to 12th December 2007. This award had been made on a renewal claim. On 18th November 2007 he made a further renewal claim. On 4th December 2007 the Secretary of State made an indefinite award of lowest rate care component (cooking test basis) and lower rate care component as from 13th December 2007, the day following the last day of the previous award. On 16th December 2008 the claimant appealed to the tribunal against that decision of the Secretary of State on the basis that his condition had not improved but the Secretary of State had replaced middle rate care component with lowest rate care component. The appeal was admitted out of time because the claimant stated that he had written several letters making it clear that he wished to appeal.

5. The First-tier Tribunal considered the matter on 27th March 2009. It upheld the Secretary of State’s decision in respect of the care component, but removed entitlement to the mobility component as from the date of the tribunal hearing. A judge of the First-tier Tribunal refused to give the claimant permission to appeal to the Upper Tribunal. He now appeals by my permission given on 3rd September 2009. The Secretary of State opposes the appeal and supports the decision made by the tribunal.

The Date Problem

6. The tribunal removed entitlement to the mobility component as from 27th March 2009, the date of its own hearing, on the basis that “by the date of hearing the appellant was regularly going on unfamiliar routes without guidance and supervision” (paragraph 22 of its statement of reasons).

7. However, section 12(8) (b) of the Social Security Act 1998 provides as follows:

	12(8) In deciding an appeal under this section, First-tier Tribunal  - 
		(a) …
(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.

8. The decision of the Secretary of State that was under appeal to the tribunal was made on 4th December 2007 and it was an error of law for the tribunal to take account of any improvement that it thought might have taken place in between that date and the date of the hearing, some 15 months later.

Mobility Component

9. Insofar as it is relevant, section 73(1)(d) of the Social Security Contributions and Benefits Act 1992 provides entitlement to lower rate mobility component of DLA for a person for any period throughout which:

73(1)(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.

10. In relation to mobility component the claimant told the tribunal that he got dizzy spells when he went out, would have blackouts and start wondering about and would find himself in places without knowing how he got there, once even finding himself on a motorway.  The tribunal stated the following in its statement of reasons:

“17 … The tribunal were satisfied that the episodes the appellant described, in which he would find himself in strange places without knowing how he had got there, had dizzy spells … were likely to be alcohol induced incidents and not epilepsy at all. The appellant described a habit of very heavy drinking to the tribunal. …
21 … the tribunal were not satisfied that that the appellant reasonably required any guidance and supervision on unfamiliar routes. The appellant told the tribunal about various unfamiliar places he had gone to alone. He said that he was last in an unfamiliar place a few weeks ago when he was on the other side of Nottingham. He got a bus home from Victoria bus station. He waved a taxi driver down and asked him to take him to Victoria. He also told the tribunal that he had found himself on a motorway once and he had called the police on his mobile phone to tell them. He said that if he didn’t know where he was he would ask someone directions. He also told the tribunal that he had come to the hearing himself on the bus.

22. The appellant did not appear to be the slightest bit anxious about being in unfamiliar places and the account he gave the tribunal was that he did end up in unfamiliar places and was more than capable of finding his way home by a variety of different methods and strategies such as asking people directions, stopping taxis, getting buses …”.

11. However, I agree with the claimant’s representatives (page 245 of the file) that it is not clear from the tribunal’s reasoning how a person who finds himself in strange places without knowing how he got there fails to qualify for lower rate mobility component. Further, to focus on an ability to get back home (or anywhere else) by bus and taxi is to ignore the statutory question in section 73(1)(d), which relates to walking, as does the focus on getting back home rather than using unfamiliar routes. Accordingly, I find the reasoning to be so faulty as to constitute an error of law. .

Care Component

12. In relation to care component, the tribunal relied on a report from Dr Bracknell in 2000 and a GP report of 2002, and referred to a medical examination in relation to the personal capability assessment carried out on 27th September 2006. It is difficult to see the value of reports from 2000 and 2002. The 2006 report might be more helpful, but that had in fact shown severely diminished capacity on mental health descriptors (18 points) and the tribunal did not really consider these and, indeed, made very few specific findings of fact in relation to the care component, other than to comment repeatedly on the claimant’s use of alcohol. The Secretary of State is correct to draw attention to the decision of the Tribunal of Commissioners in R(DLA) 6/06 (page 250 of the file) but the First-tier Tribunal failed to follow and apply the analysis in that decision. In these respects its reasoning was also so faulty as to constitute an error of law.

H. Levenson
Judge of the Upper Tribunal 

11th December 2009