[2005] UKSSCSC CDLA_341_2005 (08 June 2005)

PLH                                                                                  Commissioner's File:  CDLA 0341/05

	SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  		Disability Living Allowance
Appeal Tribunal: 	Wakefield 
Tribunal Case Ref:  	
Tribunal date:		30 November 2004
Reasons issued:	14 December 2004

     1.     	The decision of the Wakefield appeal tribunal sitting on 30 November 2004 is conceded to have been erroneous in law for failure sufficiently to explain the tribunal's reasons for holding the claimant, who suffers from autistic spectrum disorder, disentitled to the mobility component of disability living allowance.  It is further agreed in the written submission of Mrs H Hawley on behalf of the Secretary of State dated 17 March 2005 at pages 95-96 that the case must be remitted to a fresh tribunal for further factual findings to be made.  
     2.     	I accept those concessions as rightly made, set aside the tribunal decision, and in accordance with section 14(8)(b) Social Security Act 1998 remit the case to a freshly constituted tribunal which I direct to rehear and redetermine the appeal on behalf of the claimant against the departmental decision of 27 May 2004 that the claimant was not entitled to the mobility component, her entitlement to middle rate care component from 19 March 2004 to 14 March 2007 not being in dispute.  I direct the new tribunal that it may assume autistic spectrum disorder to be a developmental disorder of the brain for the purposes of section 73(3) Social Security Contributions and Benefits Act 1992 in accordance with the Commissioner's decision in case CDLA 1678/97, though that does not make autism a physical disablement for section 73(1)(a). For that purpose the established test in R(M) 1/88 Harrison v Secretary of State, and the need for a  medically recognised or recognisable condition of physical disablement, remain binding.  
(Signed)
P L Howell
Commissioner
8 June 2005