File no:  CDLA 996 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I dismiss the appeal.

2.	The appellant is appealing with my permission against the decision of the Bolton appeal tribunal on 31 October 2001 under reference U 40 122 2001 01700.  The decision of the tribunal was that the appellant was not entitled to the higher rate of the mobility component of disability living allowance.

3.	This case concerns an application for the higher rate of the mobility component of someone receiving the highest rate of the care component.  The application is made by the appointee for the appellant under section 73(3) of the Social Security Contributions and Benefits Act 1992.  This entitles a claimant to the higher rate of the mobility component if he or she is receiving the highest rate of the care component, is severely mentally retarded, and displays severe behavioural problems.  It was not disputed by the tribunal or before it that the appellant in this case is severely mentally retarded.  The only question is whether she “displays severe behavioural problems”.

4.	As the tribunal noted, regulation 12(6) states that a person “falls within” the requirement that there be severe behavioural problems if she:

		…. exhibits disruptive behaviour which:

		(a)	is extreme;

		(b)	regularly requires another person to intervene and physically restrain her in order to prevent her causing physical injury to herself or another, or damage to property, and;

		(c)	is so unpredictable that she requires another person to be present and watching over her whenever she is awake.

5.	That regulation is based on section 73(6) of the Social Security Contributions and Benefits Act 1992, which provides that “Regulations shall specify the cases which fall within subsection (3)(a) and (b) above”.  That explains why the wording of regulation 12(6) is not exhaustive of all possibilities by itself.  It also shows that Parliament created a broad power to limit section 73(3).  I mention that because, at first sight, regulation 12(6) does not seem to have much to do with mobility as such.  But section 73 awards a “mobility component” of disability living allowance, in cases such as this, in addition to the care component without expressly imposing any mobility test.  Section 73(1), so far as relevant, reads:

		…. a person shall be entitled to the mobility component of a disability living allowance for any period in which she is over the relevant age and throughout which

	-	(c)	she falls within subsection (3) below; ….

	In other words, there is nothing in section 73 requiring any specific mobility aspects to claim the mobility component under subsection (3), despite its name.  Nor need there be, as this basis of application for the higher rate of the mobility component is in addition to, not in substitution for, the usual grounds.  And if the conditions of section 73(3) are not met, the test for lower rate of the mobility component may be fulfilled (as it is in this case).

6.	I make those points in consideration of the strong advocacy of the appellant’s case by her representatives.  It is for those reasons that I follow the decision of Commissioner Turnbull in CDLA 6701 1999, now reported as R(DLA) 7/02, and agree with his comments about CDLA 2054 1998 on which the representatives relied.  On that basis I agree with the submission of the Secretary of State’s representative, for which I am grateful, that R(DLA) 7/02 should be applied to this case.  It is clear that in this case the tribunal has considered the evidence about severe behavioural problems, as limited by regulation 12(6), with some care and in an appropriate way.  It has weighed the evidence and stated its conclusions on that evidence clearly.  The appeal must be dismissed.

7.	I add a final comment.  This case was expressly limited to the higher rate of the mobility component.  This is because the lower rate of the mobility component is already in payment.  So the appellant is, or more realistically those who are looking after her are, already receiving some cash help towards getting her out and about despite her problems.  I realise that the difference between the higher rate and the lower rate of the mobility component is worth pursuing for the appellant, but that is not of itself grounds for giving clear legislative wording a twisted interpretation.

David Williams
Commissioner

24 July 2002

[Signed on the original on the date shown)

DW CDLA 996 2002 f

GH426590/SH