CSDLA/223/98

The Social Security and Child Support Commissioners 
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the Disability Appeal Tribunal given at Greenock on 1 August 1997 is not erroneous upon a point of law. The appeal fails. I dismiss it.

2. This case came before me for an oral hearing on 4 September 1998. The claimant was represented by Mr Oliver, a Welfare Rights Officer of the Inverclyde Council. Mrs Sutherland, Solicitor of the Office of the Solicitor to the Secretary of State for Scotland represented the adjudication officer.

3. The claimant made a claim for disability living allowance on 20 June 1995. An adverse decision was made in respect of that claim. Thereafter another adjudication officer reviewed that decision but did not revise it so as to award benefit.

4. The claimant appealed to a Disability Appeal Tribunal. Her appeal was partially successful in respect that the Tribunal awarded her the care component of the Disability Living Allowance at the lowest rate from 20 June 1995 for life.

5. The claimant has appealed against that decision. The appeal is both related to the Tribunal’s decision to award only the lowest rate of the care component and not the middle rate of the care component and their decision in respect of the refusal to award the lower rate of the mobility component.
6. The Tribunal made the following findings in respect of the disabilities suffered by the claimant.
"The appellant is aged 33. She is profoundly deaf and has been so from birth. Her native language is not English but rather British Sign Language. She has virtually no speech. She cannot lip read. She is able to communicate effectively by sign language but has a very limited understanding of written English. For example she does not read newspapers or magazines at all. Only with some considerable difficulty can she follow subtitles in TV programmes. The appellant thus has considerable communication difficulties."
Although the Tribunal have made findings in respect of the claimant’s literacy it has at no time been suggested in the case that the claimant suffers from any mental disablement and that was reiterated before me by Mr Oliver.

7. In respect of the care component the Tribunal made the following findings in fact:
"4. The appellant reasonable requires assistance with communication in dealings both in speech and writing with official bodies. She also requires some degree of assistance with communication with regard to all bills and other paper work. Likewise in regard to understanding news. To some extent she requires assistance with shopping. She is able to go on public transport for example buses on her own. She requires assistance in all dealings with the schools and social activities connected with these.
5. The appellant also has eczema but this does not result during the currency of the present claim in any significant care needs. She also has some degree of pain and tiredness in her legs, the diagnosis of arthritis suggested by the appellant herself has no medical confirmation. It has not been substantiated by x-rays nor is it spoken by her GP in any report."

8. In giving the reasons for their decision the Tribunal stated that by virtue of the factors referred to in paragraph 3 of their reasons they were restricting themselves in regard to care and mobility to the claimant’s profound deafness which they identified as being clearly her main disabling condition. The Tribunal then went on to say:
"So far as care is concerned, applying the Halliday case referred to above, we take the view that the appellant reasonably requires attention in connection with the bodily function of communication. We consider that she requires such attention in order to live a reasonably normal life, including social activities. We have listed what we consider to be the principal activities of normal life in the appellant’s case where communication is needed in our findings of fact above. We consider that averaging matters out over say a week, these needs amount only to attention in connection with the bodily function of communication for a significant portion of the day. In our view, they are not sufficiently frequent to qualify the appellant for an award of the middle rate of the care component. We do not consider that they amount to frequent attention throughout the day. Thus the lowest rate of the care component is the appropriate one for the appellant’s situation and we make an award of that component."

9. It is apparent from the findings and reasons the Tribunal identified the bodily function impaired by the claimant’s disablement and decided that she reasonably required attention in connection with that bodily function. Thus the Tribunal required to determine whether or not it was the condition set out in section 72(1)(a)(i) or b(i) of the Social Security Contributions and Benefits Act 1992 that the claimant satisfied. It was their position that it was the former giving rise to an award of the lowest rate of the care component rather than the latter.

10. The basis thrust of Mr Oliver’s position is contained in the first ground of appeal and his submission. It is the claimant’s position that reasons given for the decision are inadequate. It is contended that it is unclear how it was the Tribunal chose the conditions for the lowest rate of the care component rather than the middle rate. It was said that the Tribunal had not indicated how often the claimant in respect of what they describe as "averaging out" was reached.

11. Support was given for this submission by an adjudication officer in paragraph 6 of his submission to the Commissioner. It was said by the adjudication officer:
"If the tribunal were of the opinion that the claimant’s needs were variable (and it does indeed appear that this was the case), then the frequency of pattern of the needs should have been established. I submit that the conditions for DLA do not need to be satisfied on every day for there to be an award and averaging the picture over a period of a week would give an artificial view of the situation."

12. Mrs Sutherland in the event did not maintain that support in the hearing before me.

13. I am not satisfied that any error in law has been demonstrated on the part of the Tribunal.

14. The evidence in respect of the attention required by the claimant is set out in the Chairman’s Note of Evidence at pages 60A-60C and in the claim pack principally at pages 42-48 of the bundle. It can be seen that the evidence was fairly broadly stated. In particular the evidence in respect of the periods and length of time attention is required is stated without much in the way of specification. The only exception to that was what the claimant said in respect of reading. However the evidence apparently disclosed that the difficulties in reading were not so much related to the bodily function of hearing but in respect of the claimant’s difficulties with literacy.

15. Accordingly the Tribunal had little in the way of evidence on which to make the findings it has been asserted that they failed to make. Whether the claimant satisfied either condition Section 72(1)(b)(i) or (a)(i) was in my view essentially a jury question as to the nature and degree of attention required. The Tribunal in this case in my view adequately identified the attention requirements of the claimant and concluded that it was the condition set out in section 72(1)(a)(i) which she satisfied. They had looked at the matter broadly as on the evidence before them, it was the only manner in which they could proceed. In the context of the nature of the question, which I have explained, and the evidence they had to rely on to make the factual foundation for the decision which they reached I consider that they have made sufficient findings in fact and their decision is readily understandable in the light of these findings. The Tribunal cannot be criticised for failing to make findings in respect of matters which have not been put in evidence before them. There is in my view nothing the tribunal could have added to what they said. Further I cannot see any artificiality having arisen in the view taken by the tribunal in assessing the nature and degree of the attention required. In my view in these circumstances they cannot be faulted and the Commissioner cannot interfere.

16. In relation to the lower rate of the mobility component in addition to the findings in respect of disability the Tribunal found:
"The appellant can go on public transport on her own. She can also read street signs to some extent although she would have difficulty in asking directions. She would however be able to write down simple requests and show them to people if required as she does this in regard to shopping or clothes if she has no interpreter present."

17. In giving reasons for their decision they said:
"So far as the mobility component is concerned we have carefully considered the possibility of an award of the lower rate. Given that the appellant can to some extent recognise street names and can write instructions or directions down, also that she can use public transport unaccompanied, we take the view that the appellant’s communication difficulties are not sufficiently serious for us to hold that she reasonably requires guidance or supervision even when using unfamiliar routes. For the sake of completeness although the appellant’s representative did not raise the point, we also take the view that the somewhat increased risk of road accident to a deaf pedestrian would not in out view be sufficient either to qualify the appellant for an award of the lower rate of mobility component."

18 The written grounds of appeal put the claimant’s assertion as to why the Tribunal erred in law as follows:
"As to the mobility component, I am at a loss given the Tribunal’s acknowledge [sic] at my difficulty with reading street signs or obtaining help from others and my increased risk of road accidents to understand how the tribunal came to the view that I am not entitled to the lowest rate mobility component."

19. Mr Oliver in his oral submission indicated that a basis of his submission was that due to the claimant’s difficulties with communication she was unable to ask for directions in an unfamiliar place nor comprehend the answer. That is why it was said that she satisfied the conditions and why it was the Tribunal erred in law in reaching the decision which they did. Mr Oliver sought to rely on what was said by the Commissioner in paragraph 12 of CDLA/14037/96. In paragraph 12 under reference to CDLA/240/1994 he said:
"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 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."

20. The adjudication officer in a written submission did not support the claimant’s appeal on this ground. He said:
"I submit that supervision in terms of the mobility component cannot [sic] determined with reference to the likelihood of danger occurring through the claimant being unable to hear traffic. Supervision given under such circumstances is to be considered under the hearing of the care component. I further submit that the help with communication when out walking is not help to take advantage of the faculty of walking (CDLA/11491/95). I further submit that an inability to ask for directions does not demonstrate a need for supervision when out of doors (CDLA/240/94). The reasoning of the tribunal would therefore appear to be in error of law but this is at no cost to the claimant. In respect of the mobility component, in order to qualify, the claimant must prove on the balance of probabilities that supervision is a pre-requisite for her exercising the power of walking (CDLA/2364/95). I submit that it must be apparent from the evidence that the claimant’s ability to take advantage of the faculty of walking is extended where guidance or supervision is provided. In the case of the deaf person, there is nothing to suggest that guidance or supervision is a pre-requisite for her taking advantage of the faculty of walking. The claimant can do this perfectly well. The person standing by to assist with communication is not exercising guidance or supervision to enable the claimant to extend her ability to take advantage of the faculty of walking."

21. Mrs Sutherland in addition submitted that even if I accepted what was said by the Commissioner in paragraph 12 of CDLA/14307/96 such guidance "would not be for most of the time" while on unfamiliar routes and thus the test would not be satisfied.

22. As I have indicated it is the claimant’s difficulties with communication and in particular the difficulties that she has in asking for directions on unfamiliar routes which form the basis of her assertion that she satisfied the condition set out in Section 73(1)(d). The statutory test is related to an inability to use the faculty of walking on familiar routes without guidance or supervision for most of the time. It did not appear to be disputed that Mr Commissioner Rowland was correct in CDLA/240/94 when he held that an inability to ask for directions does not by itself demonstrate a need for supervision within the terms of the relevant subsection. Mr Oliver in these circumstances relied on what was said by Mr Commissioner Goodman in paragraph 12 of CDLA/14307/96. However I have some difficulty with at passage. It seems to me that the guidance being referred to in the statute is not the guidance of a passing stranger of whom directions are asked but rather that of a guide who accompanies the claimant and without whose guidance the claimant cannot exercise the faculty of walking, in the context of the statutory parameters. The suggestion which appears to be being made by the Commissioner is that the section may be satisfied if the claimant is unable or finds it difficult by reason of her deafness to communicate with a stranger so as to ask for directions when walking out of doors in unfamiliar routes. It appears to be being postulated that in these circumstances that if she had a guide to ask for guidance from a stranger then that would remedy incapacity in respect of her ability to walk and thus enable her to take advantage of that faculty. For myself I do not see how a person accompanying the claimant asking a stranger for directions on an unfamiliar route could be said to be giving guidance to the claimant. It is rather more in the way of the person with the claimant providing her with a substitute method of communication with a third party. On any proper view it is not guidance. In these circumstances it follows that I am not in agreement with what Mr Commissioner Goodman said in the passage to which I have referred. Even if I had not disagreed with him I consider that the submission of Mrs Sutherland referred to in paragraph 21 above is sound.

23. In the event the Tribunal in the present case did not approach the case in that way. Their position is that as a matter of fact the claimant is able to cope on her own and is not disabled by virtue of her disability of taking advantage of the faculty of walking out of doors or unfamiliar routes. The decision on that matter is one which is within their province and they have satisfactorily in my view explained their approach. Mr Oliver sought to persuade me that when the Tribunal referred to the claimant being able to use public transport unaccompanied it was not stated that this was on an unfamiliar route. However in her claim pack the claimant had indicated that she could not tell a bus driver where she wanted to go yet she apparently managed on buses. I do not consider that this is a case in which the Commissioner can interfere.

24. The appeal fails.

(Signed)

D. J. May QC
Commissioner 
10 September 1998