MJG/SH/HT/4

					Commissioner’s File: CDLA/14307/96

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF DISABILITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

1.	I dismiss the appeal of the adjudication officer against the decision of the disability appeal tribunal dated 22 February 1996, as that decision is not erroneous in law:  Social Security Administration Act 1992, sections 23 and 34.  

2.	This is an appeal by the adjudication officer against the majority decision of a disability appeal tribunal, dated 22 February 1996, which allowed the appeal of the claimant, a married woman born on 17 June 1951, against a review decision of the adjudication officer notified on 17 March 1993. That decision was that the claimant was not entitled to the mobility component of Disability Living Allowance.  The tribunal awarded her the mobility component at the lower rate.  The tribunal also held, unanimously, that the claimant was entitled to the care component of disability living allowance at the lowest rate from 9 April 1992 for life. That latter part of the tribunal’s decision is not the subject of appeal by the adjudication officer.  

3.	The appeal was the subject of an oral hearing (together with another case on file CDLA/13277/96 involving the same point) before me on 11 December 1996. The claimant was present and was represented by Mrs D S Payne of the claimant’s local Citizens Advice Bureau.  The adjudication officer was represented by Mr M Hunt of Counsel.  I am indebted to Mrs Payne and to Mr Hunt for their assistance to me at the hearing.  

4.	The claimant is profoundly deaf and has been so since birth. She has a little speech but it is difficult for people to understand her because, never having heard speech, she has difficulty in reproducing it.  She will not, I am sure, mind my saying that, when she spoke to me at the conclusion of the hearing on 11 December 1996, I found considerable difficulty in understanding the few words that she was able to speak.

5.	The adjudication officer in his decision said, 

“I accept that [the claimant] has profound deafness.  I do not accept [the claimant] is so severely disabled mentally so that if she needs assistance she could not write her request down when outside.  I accept [the claimant] may have problems crossing roads but she has adequate vision and has sense to use crossings where available.  [The claimant] has some speech and this could also aid her when outside.  I accept some situations may be difficult. However, taking an overall view I do not accept she satisfies any of the criteria for the mobility component.”

6.	The disability appeal tribunal of 22 February 1996 were rehearing the appeal, as directed by me in an earlier decision (dated 18 May 1995) in this case, on file CDLA/401/94. I had directed the tribunal fully to investigate whether or not the claimant was entitled to the lower rate of the mobility component, under section 73(1)(d) of the Social Security Contributions and Benefits Act 1992, (“the 1992 Act”) which provides as follows,

“The mobility component

73.	(1)	... a person shall be entitled to the mobility component of a disability living allowance for any period in which she is over the age of 5 and throughout which -

			(a)-(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.”

7.	It should be noted that if a person is “both blind and deaf” he may be entitled (under section 73(2) of the 1992 Act) to mobility component at the higher rate, provided he satisfies the prescribed degrees of blindness and deafness and that their combined effects mean that “he is unable, without the assistance of another person, to walk to any intended or required destination while out of doors.” (Social Security (Disability Living Allowance) Regulations 1991, S.I. 1991 No. 2890, regulation 12(3) and (2)).

8.	The record of decision of the tribunal of 22 February 1976 is completed in exemplary detail. The adjudication officer’s appeal is largely on the basis that the tribunal’s reasons for decision show that they have misunderstood and/or misapplied two unstarred Commissioners’ decisions on profound deafness, on files CDLA/240/94 and CDLA/206/94, and also a starred decision (109/94) on file CDLA/42/94, which analyses section 73(1)(d) of the 1992 Act in the context of a claimant suffering from chronic depression and anxiety, coupled with agoraphobia.  

9.	It should throughout be borne in mind that in this jurisdiction appeal to the Commissioner lies only on its being shown that the tribunal erred in law. On issues of fact, medical opinion, diagnosis etc, the decision of the disability appeal tribunal is final and not normally subject to appeal to the Commissioner.  In my judgment, many of the detailed matters referred to in the adjudication officer’s submission, dated 14 May 1996, in support of his appeal relate only to factual or medical matters, or to interpretation of the evidence.  

10.	However, at the hearing before me on 11 December 1996, Mr Hunt specially drew attention to the fifth of the tribunal’s findings of fact and to a passage in their reasons for decision.  Their fifth finding reads as follows,

“When [the claimant] is out of doors she likes to have somebody with her.  Her husband meets her off the bus when she gets home from work.  She is panicked on her own.  She is frightened of being attacked.  She will only walk on her own in familiar places.  If she was on an unfamiliar route she prefers to have her husband with her, even though he is also hard of hearing and has poor language having been somewhat deaf since birth.”  (My underlining).

11.	The passage in the reasons of the tribunal reads as follows, 

“However, [the claimant] appears to suffer from panic and fear when walking out alone.  She has a fear of being attacked.  When she related an incident of getting lost in London she appeared to feel that the people giving directions were hostile to her and were giving her incorrect information in order to further confuse her.  Her speech is very indistinct and people might find it difficult to understand what she was saying.  This appears to have given [the claimant] a fear of being left on her own, such that she prefers  to have her husband with her although her husband would appear to be very little better than herself in being able to ask for directions or hearing directions, being deaf himself from birth and having himself poor language.  Therefore, because of this, the tribunal considered that [the claimant] wished to have somebody with her when out of doors in familiar and unfamiliar routes for guidance and for reassurance as she seemed to become anxious and panicked when presented with any change to a map or instructions which she has received over the minicom [a special telephone for the deaf].  In relating the occasion when she got lost for 2 hours in London she became distressed and agitated.  In her ability to cope with the tube system in London the tribunal considered that she panicked and therefore there was an element of anxiety.  Therefore they took into account the guidance and CDLA/42/94.  The tribunal considered that her husband or other person with her exercised supervision in that they monitored her and that if she became distressed and panicked by having to communicate with strangers and ask for directions, and also the fear of being attacked, which the tribunal felt was a fear because of her disability, although it was not rooted in any actual experience, that she suffered from a degree of anxiety and therefore suffered the criteria for the lower rate of the mobility component.”  (my underlining).

Mr Hunt pointed to the use by the tribunal of the word “prefers” in both those passages and stressed that it was not a question of preference but rather that a claimant “cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.” (s.73(1)(d) - my underlining).

12.	However, when I read the entirety of the tribunal’s reasons for decision, I come to the conclusion that the use of the word “prefers” relates only to the claimant preferring to have her husband with her. The rest of the passages in the tribunal’s reasons show that they understood the necessity of showing that the claimant “cannot take advantage, etc”. They refer to the claimant’s difficulties in walking on an unfamiliar route, with her speech difficulty.  It appears to me, moreover, that the tribunal understood that it was not possible to take into account difficulties with, for example, hearing loudspeaker announcements on railway stations because section 73(1)(d) refers only to the “faculty” of walking.  That is a point that was made in the decision on file CDLA/240/1994. In that decision (at paragraph 11) the Commissioner accepted a submission on behalf of the adjudication officer “that an inability to ask for directions does not, by itself, demonstrate a need for supervision”.  That may well be so but of course sub‑paragraph (d) of section 73(1) refers also to “guidance”.  I would have thought that that particularly applied to the need to ask for directions.  Mrs Payne on behalf of the claimant pointed out that, because of the indistinct speech of the claimant, a stranger being asked for directions would not understand and might even think that the claimant was inebriated.

13.	It seems to me therefore that this tribunal in its extremely careful decision did not misunderstand the case law and applied it correctly.  I should not overlook that there was a dissent in the tribunal. The reasons for dissent were, “A mature and intelligent woman such as [the claimant] working for the past 2½ years, 50 or so miles from her home, albeit transport [a door to door bus] is provided by her employers, could be expected to cope alone with most problems likely to arise while walking despite her communication problems.” That is an expression of opinion on the facts but it appears to me that the majority of the tribunal were well able to come to the conclusion of fact that they did, within the parameters of sub‑paragraph (d) of section 73(1) of the 1992 Act and the case law thereon.

14.	I ought to mention two further subsidiary parts of the adjudication officer’s submission ably put to me by Mr Hunt.  The first relates to the fact that paragraph (d) of section 73(1) requires that a person to come within it cannot take advantage of the faculty of walking out of doors “without guidance or supervision from another person most of the time”  (my underlining). Mr Hunt referred to paragraph 11 of the written submission of the adjudication officer now concerned (dated 14 May 1996), that paragraph contending that the tribunal had failed to say, “How often the claimant experiences any change in maps/minicom information which result in her panicking.”  The paragraph also submits, “That it is wholly unreasonable to say that this would satisfy the ‘most of the time’ test, and that the claimant experiences such difficulties most of the time when walking out of doors.” As to that, the point should first be made that “most of the time” in section 73(1)(d) refers not to any walking out of doors but only to walking out of doors on unfamiliar routes. It seems to me that, taking the findings of fact and reasons for decision of the tribunal in their entirety the tribunal were well aware of this point and that they have found sufficient facts and given adequate reasons to justify holding that the “most of the time” requirement was fulfilled.  

15.	Secondly, Mr Hunt reiterated to me paragraph 10 of the adjudication officer’s submission of 14 May 1996 which reads as follows,

“I submit that the evidence would suggest that the claimant appears to have an unfounded fear of being attacked.  There is established case law (R(M) 1/78, paragraph 9) that to avoid walking for fear of the consequences is not a ground of entitlement for mobility allowance.  Although that deals with Mobility Allowance, I submit that the principle still holds good.”

16.	R(M) 1/78 was a decision of the then Chief Commissioner and the headnote to the case accurately summarises its effect.  It reads as follows,

“A spastic child with unpredictable liability to epileptic seizures, who could walk about a mile but whose doctor advised she should not be allowed to walk unattended, was found by a Medical Appeal Tribunal to satisfy the conditions for mobility allowance of being unable or virtually unable to walk.

Held, by the Commissioner on an appeal by the Secretary of State, that the decision of the Tribunal was erroneous in point of law because no person acting judicially and properly instructed as to the relevant law could find that a person physically capable of walking a mile or more was unable or virtually unable, by reason of physical disablement, to walk.  There was no evidence to support the finding of the Tribunal (paragraph 11). 

Obiter:  to avoid walking for fear of the consequences if a seizure occurs is not a ground for entitlement to mobility allowance (paragraph 9).”

17.	In my view, that obiter dictum (if such it was) has no bearing on the present case.  It was given in relation to the law as to mobility allowance (then to be found in section 37A of the Social Security Act 1975 and regulation 3(1) of the Mobility Allowance Regulations 1975, (S.I.1995 No. 1753)). That legislation which related solely to a person’s being, because of physical disability, either unable or virtually unable to walk, whereas of course the specific provision now to be found in sub‑paragraph (d) of section 73(1) of the 1992 Act was not in existence (nor any equivalent of it) at the date of R(M)1/78. Section 73(1)(d) of the 1992 Act refers not only to severe  physical disablement but to severe mental disablement. If a fear of being attacked, or attacks of panic on getting lost, are a consequence which a person of reasonable firmness would suffer from profound deafness (and I can well imagine this to be so), then the fear and panic are legitimately to be taken into account in deciding whether or not a person needs guidance or supervision in order to take advantage of the faculty of walking.  I therefore reject the adjudication officer’s submission on that point.

18.	Therefore, for all the above reasons, I must dismiss the adjudication officer’s appeal though I should add that in my view it was properly brought in view of the difficulty of cases of this kind.  Nothing of course in this decision relates to the law relating to the entitlement to care component of profoundly deaf persons, which is to be the subject of a decision of the House of Lords in the Fairey/Halliday case.  Moreover, my decision is to some extent a decision on the facts of this particular case and is not to be regarded necessarily as a decision applicable to the mobility component entitlement of all deaf people.  Such entitlement must to some extent depend on the facts of every individual case. 

					(Signed)	M J  GOODMAN
							Commissioner

					(Date)	31 January 1997