CDLA/5529/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.		This is an application by the claimant for permission to appeal against a decision of the appeal tribunal sitting at Stoke-on-Trent (“the appeal tribunal”) on 12th August 2002.  Both parties have agreed in writing that, in the event of my granting permission to appeal, I may exercise the powers conferred upon me by regulation 11(3) of the Social Security Commissioners (Procedure) Regulations 1999 (SI 1999/1495) and go on to treat the application as the appeal.  

2.		In the event, I grant permission to appeal and go on to allow the claimant’s appeal.  The decision of the appeal tribunal is erroneous in point of law for the reasons that I am about to give.  I am not in a position to give a final decision.  I therefore remit the matter to a differently constituted appeal tribunal (“the new tribunal”) for a complete rehearing.  

3.		The claimant was born on 17th July 1990.  She was 11 at the date of the decision against which she appeals (1st December 2001).  Although, for convenience, I shall simply refer to the claimant, this appeal has been pursued on her behalf, and all necessary steps have been taken, by her mother who has been appointed by the Secretary of State to act on her behalf.  The claimant seeks a disability living allowance on the basis that she suffers from learning and behaviour problems and also from eczema and asthma.  On 23rd May 2000 she was awarded the lower rate of the mobility component and the middle rate of the care component for the period from 1st March 2000 to 28th March 2002.  A copy of that decision will be found at pages 43 to 47c of the papers.  

4.		In October 2001, the claimant applied to renew that award.  This time she was not so successful.  On 1st December 2001, it was decided that she was not entitled to either component from and including 29th March 2002.  See pages 91 to 95.  The claimant appealed and her appeal came before the appeal tribunal on 12th August 2002.  It was unsuccessful.  Permission to appeal was refused by a legally qualified panel member and a further application was then made to a Commissioner. That application is now before me. I grant permission, and go on to allow the appeal, because I consider that the appeal tribunal applied an incorrect test when considering the lower rate of the mobility component.  

5.		A copy of the appeal tribunal’s statement of reasons will be found at pages 130 and 131 of the papers.  Towards the end of that statement the appeal tribunal said this.  
	“As to mobility we found that [the claimant] can go to school on the school bus.  She can play in the street with her friend.  She does not have the confidence to go alone to Hanley and if she goes on such journeys she goes with her mother.  We are unable to say that the supervision she needs outside is substantially in excess of that which a child of her age and demeanour would expect and require.  There is no evidence that she is not aware of common dangers.  She lacks confidence.  It is clear that she is improving as the behavioural problems at school are diminishing.  She is able bodied and very active.  We note Dr Hussain’s view that [the claimant] would require constant supervision when she is out in a public place.  She does however play outside with her friend and has never come to harm.  The fact that she only goes to Hanley when with her Mother and/or Father does not in our view mean that the supervision she requires is substantially in excess of that which a normal child of her age would require  The evidence is that she is not constantly supervised and has come to no harm.”

6.		The Secretary of State has lodged submissions which will be found at pages 150 to 153 of the papers.  Paragraphs 13 and 14 of those submissions are as follows:-
			“13.	However, I concur with the claimant’s grounds of appeal that the tribunal decision contains a false proposition of the law, ex facie.  I submit that when considering the lower rate of mobility component, the test of guidance or supervision, is whether the claimant is able to take advantage of the faculty of walking out of doors over routes that are unfamiliar.

			14.	The tribunal noted the report from the GP, which indicated that he believed the claimant would require constant supervision whilst in a public place.  I submit the tribunal has failed to adequately explain how they consider playing outside her home, indicates the claimant can take advantage of the faculty of walking out of doors over unfamiliar routes, without supervision or guidance.  I submit that that failure constitutes an error in law.”

7.		I accept those submissions and allow the appeal.  The new tribunal will, I think, find helpful the Secretary of State’s submissions at pages 150 to 153.  However, if, in his references to decision R(M) 1/96, the Secretary of State’s representative is submitting that a tribunal dealing with a disability living allowance renewal claim cannot reject the claim unless it is able to point to some improvement in the appellant’s condition or needs, then I consider he is going to far.  In my respectful view, what Mr Commissioner Howell decided in R(M) 1/96 in this connection was not that.  What he decided was that, where a tribunal rejected a renewal claim or made an award less generous than that previously in force, it should indicate that it was aware of the previous award and aware that its decision was less generous than that award.  A renewal decision is for the tribunal which hears the appeal to take on the basis of the evidence before it.  If it differs from what had previously been decided, then so be it - provided it is aware, and indicates that it is aware, of the award which the appellant is seeking to renew.

8.		For the above reasons I allow the appeal and remit it to the new tribunal for rehearing.  

						(Signed)	J.P. Powell
								Commissioner

						Dated:		24th June 2003