C44/95(DLA)

	SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
	(NORTHERN IRELAND) ACT 1992

	SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
	(NORTHERN IRELAND) ACT 1992

	DISABILITY LIVING ALLOWANCE

	Appeal to the Social Security Commissioner
	on a question of law from the decision of the
	Disability Appeal Tribunal
	dated 9 February 1995

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	In this case the claimant appeals against the decision of the Disability Appeal Tribunal sitting at Belfast; whereby it was held that she was entitled to the lowest rate of the care component of disability living allowance for 5 years from 20 April 1993, but that she was not entitled to the mobility component.  

2.	The appeal is against the refusal of the mobility component; the grounds being that the Adjudication Officer who appeared for the Social Security Agency had conceded at the Tribunal hearing that the claimant was entitled to the lower rate on the basis that she needed supervision when walking out of doors.  The Tribunal had not ignored this concession, but in their "reasons for decision" had explained its non-acceptance in the following terms:-

		"Presenting Officer had sought to concede entitlement to lower rate
		mobility on the ground that "supervision" had been widely defined
		in Commissioner's Decision CDLA/042/94.  She agreed that the need
		for supervision had been shown and that if the need were so shown
		that was sufficient even if the supervisor was not there.  Section
		73(1)(d) of the 1992 Act refers to a person who "cannot take 
		advantage of the faculty ... without guidance or supervision".  
		It is clear that supervision might be desirable but equally clearly
		the claimant manages regularly without it and in the circumstances
		it seemed to the Tribunal that she could not be deemed to satisfy
		the requirements."

3.	In his written observations on the appeal Mr Shaw, the Adjudication Officer now concerned with the case, pointed out that the Tribunal appeared to have confined their consideration to the claimant's ability to walk out of doors in familiar territory; whereas the provisions of section 73(1)(d) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, (the Contributions and Benefits Act, required such ability to be disregarded.  

4.	Having considered this matter I find myself in agreement with the views expressed by Mr Shaw.  The Tribunal should have considered and recorded findings in relation to the claimant's ability to walk out of doors over unfamiliar routes.  There is nothing to suggest that they did so, and all the indications are that they had regard only to the fact that she could manage alone when using familiar routes.  That was not the correct approach, and I am accordingly satisfied that the Tribunal's decision on the mobility component was erroneous in point of law.

5.	Although the Tribunal erred in apparently overlooking the provision requiring them to disregard the claimant's ability to walk unaccompanied over familiar routes, they were nevertheless right to distinguish as they did between the nature of the conditions entitlement in sections 72(1) and 73(1) of the Contributions and Benefits Act.  Section 72(1) provides that a claimant qualifies for benefit if he requires attention or supervision of a specified kind, and it has long been accepted that he does not have to prove that such attention or supervision is in fact being provided.  What must be established is that the attention or supervision is reasonably required; regardless of whether the claimant is receiving it or not.  As the Tribunal recognised, the provisions of regulation 73(1)(d) are somewhat different in that, in order to qualify for benefit, the claimant must establish that he "cannot take advantage of the faculty [of walking] out of doors without guidance or supervision from another person most of the time."  The Tribunal were therefore correct to point out that mere proof that supervision might be desirable, or for that matter reasonably required, would not be sufficient to establish entitlement under this paragraph.  The reverse, however, is also correct because, although the Tribunal must consider what a claimant can or cannot do, a demonstrated ability to walk unaccompanied over unfamiliar routes does not necessarily preclude a claimant from qualifying for benefit.  "Cannot" in this context does not denote "total incapacity", otherwise the addition of the words "most of the time" would be meaningless.  There could of course conceivably be circumstances similar to those of the present case, in which, by his past conduct, a claimant might demonstrate an ability to walk over unfamiliar routes while unaccompanied for most of the time.  In such circumstances proof of "a reasonable need" for supervision would be irrelevant.  However, cases of that nature are not likely to be common, and in most instances Tribunals will probably have to consider whether a claimant has a reasonable need for company when walking out of doors in much the same way as a reasonable need for attention or supervision has to be considered in relation to the care component.  

6.	For the reasons given in paragraph 4 above I allow this appeal, set aside the decision of the Appeal Tribunal and refer the case for determination by a new Tribunal.  

	In submitting his written observations Mr Shaw suggested that the new Tribunal should be supplied with copies of the GB Commissioners' Decisions CDLA/042/94 and CDLA/757/1994.  Having studied both decisions it seems to me that CDLA/042/94 will provide the Tribunal with the greater assistance.  It deals specifically with the question of a claimant's need for guidance or supervision arising from a medically recognised physical or mental condition which limits his ability to take advantage of the faculty of walking.  It is therefore directly relevant to the present case, and will be of assistance to the Tribunal in their consideration of the claimant's entitlement to the mobility component.  Paragraphs 20, 21 and 22 should in my opinion be particularly helpful.  CDLA/757/1994 is concerned with the relationship between sections 72 and 73 of the Contributions and Benefits Act and in particular with the question of whether a claimant who, by reason of a propensity to fall, requires continual supervision sufficient to qualify for an award of the care component under section 72(1)(c), necessarily also qualifies for the mobility component at the lower rate.  I may say that I am in full agreement with the Commissioner's views on the subject; but in the present case there is, as I understand it, no suggestion that the claimant requires supervision to protect her from the risk of falling.  

7.	Because disability living allowance is a composite benefit the whole of the Tribunal's decision has been set aside and all issues in relation to both components will be open for consideration at the further hearing of this case.  I would point out, however, that it is only in relation to their decision on the mobility component that I have found the Tribunal's decision to have been erroneous in point of law.  My only direction to the new Tribunal is that they should have regard to the views expressed in this decision.

	(Signed):  R R Chambers

	CHIEF COMMISSIONER

	23 May 1996