CDLA/1621/2009

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

Decision and Hearing 

1. This appeal by the claimant succeeds. In accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the Social Entitlement Chamber of the First-tier Tribunal sitting at Birmingham and made on 13th March 2009 under reference 024/08/08555. I refer the matter to a completely differently constituted tribunal in the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision in accordance with the directions given below. 

2. Those acting on behalf of the claimant should consider requesting the tribunal to hold an oral hearing and in default of such request consideration should in any event be given as to whether an oral hearing should be held. The parties should regard themselves as being on notice to send to the clerk to the tribunal as soon as is practicable any further relevant written medical or other evidence. Such evidence must relate to the situation as it was at the date of the decision of the Secretary of State that was under appeal to the tribunal (28th May 2008). The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course

3. I held an oral hearing of this appeal on 8th March 2010. Neither the claimant nor her parents attended in person but she was represented by Mr Stephen Broach of counsel instructed by the Welfare Rights and Anti-Poverty Unit of Sandwell Metropolitan Borough Council. The Secretary of State was represented by Mr Jeremy Heath of the office of the Solicitor to the Department for Work and Pensions. I am grateful to them for their assistance. 

Background and Procedure

4. The claimant is a girl who was born on 17th July 1998. She has Down’s Syndrome. It is agreed that this is a chromosomal abnormality that commonly affects intellectual development and behaviour. On 15th February 2007 an Appeal Tribunal confirmed an award of highest rate care component of disability living allowance (“DLA”) from 17th July 2006 to 16th July 2008 (her 10th birthday) but allowed her appeal against the decision of the Secretary of State not to award higher rate mobility component. The tribunal awarded higher rate mobility component for the same period as the care component. The Decision Notice (page 64 of the file) shows that this was on the basis that the claimant was virtually unable to walk (page 64 of the file). However there is no indication that a statement of reasons was prepared and it is unlikely that this would have been done unless the Secretary of State was considering a further appeal. 
5. A renewal claim was made and on 28th May 2008 the Secretary of State awarded highest rate care component and lower rate mobility component for the period 17th July 2008 to 16th July 2014 (thus ending on the day before the claimant’s 16th birthday). Although it was not unreasonable to make an award for that particular fixed period, if the new tribunal makes or confirms an award it should give independent consideration as to whether a life or a fixed term award is appropriate and should give reasons for its decision.

6. On 31st July 2008 the claimant appealed to the Appeal Tribunal against the decision of the Secretary of State not to award higher rate mobility component. On 3rd November 2008 the matter was transferred to the Social Entitlement Chamber of the First-tier Tribunal and on 13th February 2009, by a majority decision, the Tribunal confirmed the decision made by the Secretary of State and refused to increase the award of mobility component to the higher level. The dissenting member of the Tribunal was of the view that the claimant was virtually unable to walk. On 26th May 2009 the District Chairman of the Tribunal refused to give the claimant permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal. The application was renewed before the Upper Tribunal and she now appeals by my permission given on 20th July 2009. On 7th December 2009 I directed that there be an oral hearing of the appeal. 

7. It was agreed before me that the only matter under appeal is the refusal to award higher rate mobility component and I make no comment on the care component. It is not disputed that if the claimant is not entitled to higher rate mobility component, then she is entitled to the lower rate. The Secretary of State opposes the appeal and supports the decision of the First-tier Tribunal. 

The Relevant Provisions

8. There are several possible routes of entitlement to higher rate mobility component but I set out here the provisions that need to be considered in the circumstances of the present appeal.

9. Insofar as it is relevant, section 73(1)(a) of the Social Security Contributions and Benefits Act 1992 provides entitlement to higher rate mobility component of DLA if a person:

73(1)(a)  … is suffering from such physical disablement that [s]he is either unable to walk or virtually unable to do so.

10. Regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 provides, so far as is relevant, that (my emphasis):

12(1) A person is to be taken to [be] … unable or virtually unable to walk only in the following circumstances –
(a)	[her] physical condition as a whole is such that … -
(i)	[she] is unable to walk; or
(ii)	[her] ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that [she] is virtually unable to walk.

It is well established that any walking that is accompanied by severe discomfort does not count as establishing an ability to walk.

11. The other possible basis for higher rate mobility component in this case is the special rule under section 73(3) of the Social Security Contributions and Benefits Act 1992. This provides:

	73(3) A person falls within this sub-section if -
(a) [s]he is severely mentally impaired; and
(b) [s]he displays severe behavioural problems; and
(c) [s]he satisfies both the conditions mentioned in s.72(1)(b) and (c).

Paragraph (c) is met in this case: the two conditions to which it refers concern entitlement to the highest rate care component.

12. Regulation 12(5) of the Social Security (Disability Living Allowance) Regulations 1991 specifies who falls within paragraph (a) of section 73(3):

12(5) A person falls within sub-section (3)(a) of s.73 of the Act (severely mentally impaired) if [s]he suffers from a state of arrested development or incomplete physical development of the brain which results in severe impairment of intelligence and social functioning.

13.  Regulation 12(6) of the Social Security (Disability Living Allowance) Regulations specifies who falls within paragraph (b) of section 73(3):

12(6) A person falls within sub-section (3)(b) of s.73 of the Act (severe behavioural problems) if [s]he exhibits disruptive behaviour which –

(a) is extreme,
(b) regularly requires another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or damage to property, and
(c) is so unpredictable that he requires another person to be present and watching over him whenever he is awake.

The Evidence in relation to 28th May 2008

14. Mr Broach produced evidence that was not before the First-tier Tribunal but it cannot shed light on whether the decision of that tribunal involved making an error of law. It is also the case that not all of the evidence in the file can necessarily be related to the relevant date. I deal here with the evidence that can be so related.

15. The 2008 renewal claim form was completed by the claimant’s mother. In it she referred to the claimant having learning disabilities, problems with mobility and vision, and challenging and behavioural problems. She stated (page 71 of the file) that the claimant “has no physical problems with walking, but her illnesses and disabilities prevent her from walking”. Lengthy statements were also made which go to entitlement to the lower rate mobility component and which I do not need to refer to in more detail, other than that “she has no awareness of danger”.

16. The tribunal had a report of 22nd April 2008 from the Head Teacher at the claimant’s then school (pages 105 to 108). This school caters for primary aged pupils with “complex and profound learning difficulties”. The report stated that the claimant had delayed speech and “is impulsive and tends to do things without thinking …  needs close supervision as she [is] unaware of dangers … has severe learning difficulties but in addition at times can be extremely challenging and unpredictable”.

17. On 7th July 2008 the claimant’s GP wrote (page 5):

“[The claimant] has Down’s syndrome with severe challenging behaviour problems. Physically she is quite able to walk and for some distance. Far more often than not she refuses to walk and needs to be carried or pushed in a chair. 

She requires one to one supervision at all times as she has no conception of the normal hazards of life and is a danger to herself at all times”.

18. On 9th July 2008 the person who was caring for the claimant at school reported (page 4) that:

“As [the claimant] gets older, her behaviour causes her mother … extreme anxiety and stress not only within the home but also in the outside environment. [Her mother] is unable to manage [the claimant] who displays adverse behaviour and aggression towards adults and children. [The claimant] will drop ‘dead weight’ to the floor and refuse to stand. Challenging [the claimant] makes her behaviour worse when she becomes aggressive and more obstinate.

As her Carer I have experienced this behaviour increasingly over the past months. [She] has become unmanageable at times …”.

19. The tribunal also had before it a comment from a doctor who is an “Approved Disability Analyst” (page s 61-62) which had been sought on behalf of the Secretary of State and to which Mr Heath also referred. However, this doctor never met the claimant or her family and just proffered, on the basis of the papers, an opinion as to whether the claimant satisfied some of the criteria of entitlement which, although technically admissible, in my view carries no evidential value whatsoever. The same is true of a similar type of comment, although to the opposite effect, made by the school carer at the end of her report.

20. The oral evidence of the claimant’s mother to the tribunal was to similar effect as the evidence on behalf of the claimant that I have outlined above. Asked about PE lessons, she added that the claimant co-operates with these but at the supermarket there were behavioural problems and the claimant grabs peoples’ clothes and swears and may try swipe things from shelves. She always has a lot of supervision out of doors due to her behavioural problems and is unaware of danger (page 124).

Unable to Walk

21. It is not suggested that the claimant is literally unable to walk within the meaning of section 73(1)(a) of the 1992 Act. This is borne out by the various references to her not having “physical difficulties” with walking. However, being “virtually unable to walk” is a separate ground of entitlement. The tribunal concluded that because of the claimant’s co-operation with PE lessons, the lack of any problem with her legs or limb co-ordination and “the evidence that the claimant has no physical problem with walking”, therefore she was not virtually unable to walk. In my view the tribunal conflated the concepts of being unable to walk and being virtually unable to walk and this led it not to apply properly the statutory test. To say that the claimant did not have “physical difficulties” with walking was both an oversimplification and a distortion of the statutory language.

Virtually Unable to Walk

22. From the structure of section 73)1)(a) it is clear than a person can be virtually unable to walk without being actually unable to walk. However, the phrase “virtually unable to walk” is left undefined beyond the provisions of regulation 12(1)(a)(ii) of the 1991 Regulations, which confine entitlement to cases where a calaimant’s physical condition as a whole is such that her ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which the claimant can make progress on foot without severe discomfort, that she is virtually unable to walk.

23. If a claimant’s difficulty in walking ultimately has a physical cause, even if that physical cause is not some problem with, for example, muscle co-ordination or weakness or a physical injury to or defect in the relevant limbs, then it is possible that a claimant is still virtually unable to walk. In the present case the tribunal appears not to have paid attention to the words “physical condition as a whole”. Down’s Syndrome is a chromosomal abnormality. It can be seen under a microscope. It is part of the claimant’s “physical condition as a whole” .The approach of the First-tier Tribunal led to a failure to consider whether such difficulties as the claimant did have with walking (manifested in her behaviour) stemmed from her Down’s Syndrome. At the new hearing those acting on behalf of the claimant might wish to produce expert evidence dealing with this, although it would have to relate to this particular claimant.

24. I regard the above propositions as clear but in deference to the work done by counsel I refer to the authorities. R(M) 2/78 concerned a boy with Down’s Syndrome who claimed mobility allowance, the conditions of entitlement to which were very similar to those for higher rate mobility component. The tribunal had found that while the boy walked for some yards he was liable to run, stop, lie down and refuse to go further, and that his behaviour was directly due to the physical condition of Down’s Syndrome. On appeal, the Chief Commissioner said (paragraphs 18 and 19):

“I do not consider that the medical appeal tribunal misapprehended what physical disablement means, or that it can be said that they were wrong in law in concluding from their findings that it was physical disablement which was responsible for his virtual inability to walk … there may be cases of claimants suffering from a physical disorder such as Down’s Syndrome whose legs are capable of the physical movements of walking, but who are prevented by other aspects of their physical condition from making use of them … ”.

23. R(M) 3/86 concerned a claimant suffering from brain damage at birth which led to severe mental “subnormality” such that, although capable of the physical movements of walking, his behaviour while doing so was erratic and unpredictable so that at times he had to be physically restrained while on other occasions he refused to move”.  A tribunal of three Commissioners decided that the principles in R(M) 2/78 were unaffected by anything said in the House of Lords decision in Lees v Secretary of State for Social Services [1985] 1 AC 930 (dealing with the case of a blind claimant with impairment of balance and capacity for spatial orientation). They also held that there was a distinction between the case of a claimant who could not walk and that of a claimant who would not walk but it is for the tribunal “to determine whether a child’s propensity to cease walking is to be attributed to a deliberate election on his part or to a physical disablement” (paragraph 8).

24. t seems to me that it is important not to read that principle in too literal a way. The thrust of the authorities is that if the reason a person will not walk is because of the effect of, for example, Down’s Syndrome, that comes into the category of being prevented from walking by the physical condition. This is consistent with the view of the Court of Appeal in Harrison v Secretary of State for Social Services (reported as an appendix to R(M) 1/88) upholding the Commissioner’s statement in paragraph 6 of R(M) 1/88 that even in a case of hysteria the tribunal was not bound to hold in every case that the hysteria was not a manifestation of the claimant’s physical condition as a whole.

25. In R(DLA) 4/06 a Tribunal of Commissioners held that Harrison is binding authority to the effect that where a claimant suffers from physical symptoms or manifestations (including pain or dizziness) of a physical or mental condition, entitlement to higher rate mobility component depends on the claimant showing that there is a physical cause for those symptoms or manifestations (paragraphs 86 to 101) but that where an inability to walk is caused by both physical and mental factors, there is entitlement if the physical disorder is a material cause (paragraphs 116 to 120).

26. Ultimately it is a question of evidence and the facts of any particular case, but in the present appeal the First-tier Tribunal did not clearly identify the questions that had to be asked and answered.

27. Mr Heath was concerned that there had been no finding as to whether the claimant suffered severe discomfort when walking. However, this is to put matters the wrong way round. The wording of regulation 12(1) requires that any ability to walk while suffering severe discomfort is to be disregarded. The question then relates to what ability to walk the claimant has left, having disregarded that.

Severely Mentally Impaired

28. The meaning of severely mentally impaired is found in regulation 12(5), which is set out above. The First-tier Tribunal found that there was no evidence of “arrested or incomplete development of the brain”. However, this is a common but mistaken paraphrase of regulation 12(5), which refers to “arrested development” or “incomplete physical development of the brain”.  There are two aspects to this error. One is that a distinction is drawn between arrested development generally (not limited to the brain, although there must still be a physical cause) and incomplete physical development of the brain. The other is that “arrested development” does not mean arrested physical development (otherwise the regulation would say so, as it says “incomplete physical development”). Thus, regulation 12(5) can apply to a person who has arrested emotional or functional development which has a physical cause even if that cause is not related to the development of the brain.

29. In the present case the Secretary of State has conceded that the claimant is severely mentally impaired (paragraph 10 of the submission of 25th August 2009, reproduced on page 145 of the file) and Mr Heath did not resile from that concession. The Secretary of State should clarify for the claimant and the new tribunal whether that concession is maintained or whether the claimant needs to provide evidence on that matter.

Severe Behavioural Problems

30. The meaning of severely behavioural problems is found in regulation 12(6), which is set out above. The First-tier Tribunal found that, although the claimant’s behaviour is regarded as challenging and unpredictable, regulation 12(6) was not satisfied:

“Reference is made by headmistress to a requirement for ‘close supervision’ not permanent one to one supervision and appellant is taught in a ‘small group’ of unidentified size by some four teachers”.

31. However, regulation 12(6) does not require that there be one to one permanent supervision. The regulation sets out what is required and the First-tier Tribunal does not same to have considered fully the actual words of the regulation.

32. There was some detailed discussion by both Mr Broach and Mr Heath of the evidence in relation to regulation 12(6) but is not necessary to address this further because the new tribunal will have to make its own findings.

Conclusions

33. Mr Broach raised the question of the treatment by the First-tier Tribunal of what he said was expert evidence, and cited a number of authorities. It is not necessary for me to say anything on these matters except to point out that the new tribunal must explain why it accepts or rejects any particular evidence, expert or otherwise, and that whether the claimant is entitled to higher rate mobility component is for the tribunal and not for any witness to decide.

34. In view of the age of this case, Mr Broach was keen for me to substitute my own decision for that made by the First-tier Tribunal. However, the interests of justice require that the claimant have the opportunity to gather more evidence, and this is better evaluated by the First-tier Tribunal with its particular mix of expertise. Nevertheless, for the above reasons this appeal by the claimant succeeds.

 
H. Levenson
Judge of the Upper Tribunal
11th March 2010