Decision no: C21/01-02(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Appeal to the Social Security Commissioner
On a question of law from the decision
Of Belfast Appeal Tribunal dated 19 June 2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, leave having been granted by myself, by the claimant against a decision dated 19 June 2001 of an Appeal Tribunal sitting at Belfast.  That Tribunal had disallowed the claimant’s appeal in relation to Disability Living Allowance and had confirmed awards made by the Decision Maker of the low rate of the mobility component and the low rate of the care component of that allowance for the period from 16 February 2000 to 15 February 2002.

2.	The claimant’s grounds of appeal were contained in a letter attached to an OSSC1(NI) form received in the Commissioners’ Office on 20 November 2001.  The grounds were that the Tribunal had failed to give an adequate statement of the reasons for its decision.  The claimant’s representative, Mr McVeigh of the Northern Ireland Association of Citizens Advice Bureaux submitted that the Tribunal had accepted that the claimant had a history of blackouts and as a result awarded the lower rate of the mobility component on the basis of her requiring supervision when walking on unfamiliar routes.  The Tribunal had failed to give reasons for not accepting that the claimant satisfied the conditions for entitlement to the middle rate of the care component of Disability Living Allowance on the grounds of supervision needs.  A Tribunal of Commissioners’ in Great Britain had held in cases CDLA/714/98; CDLA/2560/98; CDLA/414/99; CDLA 823/99 that the same supervision needs could be aggregated for both the care and mobility components.

3.	The appeal was supported by Mrs Gunning of the Decision Making and Appeals Unit of the Department.  In Mrs Gunning’s submission the Tribunal had not adequately explained why it rejected the claimant’s contention that she required continuous supervision throughout the day.
4.	I consider that the Tribunal’s reasoning was inadequate in that it did not deal with the claimant’s contention that she required continuous supervision throughout the day.  Her specific grounds of appeal were that her condition merited the middle rate care component of Disability Living Allowance and the Tribunal did not deal with this.  I set the decision aside for that reason.

5.	As regards the middle rate of the care component, the fact that a person may satisfy the requirements for the lower rate of the mobility component does not automatically mean that that person will satisfy the requirements for the middle rate of the care component.  A person can be quite safe for considerable periods within that person’s own house where he or she can make reasonable arrangements to avoid danger but the same person could be quite unsafe on unfamiliar routes.  There is no automatic passporting between these two components.  It does, however, appear to me that the requirements of supervision when walking outside on unfamiliar routes can be taken as part of a person’s overall supervision requirements for the middle rate of the care component if that supervision is required to avoid substantial danger to the claimant or others.  It is unlikely, however, that the mere requirement of supervision on unfamiliar routes would be sufficient of itself to fulfil the time requirements of section 72(1)(b)(ii) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 though it may, of course, contribute to such satisfaction.

6.	The Tribunal’s reasoning in relation to the lower rate of a mobility component (which award was confirmed) also indicates a possible error of law.  The Tribunal has stated:

“We note since appellant started on Lustril, General Practitioner not aware of further blackouts but because of past history of blackouts, prudent to be accompanied outdoors over unfamiliar routes.

The question of whether or not it is “prudent to be accompanied” is not determinative of the conditions for satisfaction of the low rate of the mobility component.

7.	The standard is not whether it is reasonable or indeed prudent to be accompanied.  The standard is whether it would be unreasonable to expect the claimant to walk out of doors without guidance or supervision most of the time.  More than mere accompaniment is required.  More than a mere reasonable requirement for guidance or supervision is required.  It could be reasonable for a person to seek supervision when on unfamiliar routes but equally reasonable for that person to walk on such routes without such supervision.  To satisfy the statutory conditions it must be unreasonable to expect the claimant to walk without guidance or supervision most of the time when on unfamiliar routes.

8.	The new Tribunal to which I remit this matter, if it is dealing with the low rate of the mobility component should bear in mind the cases which were cited to the Tribunal in this case by the Decision Maker i.e. decisions R2/99(DLA), C51/98(DLA) and C19/98(DLA).  In particular it should ask itself the questions set out in R2/99(DLA) as slightly modified by C38/99(DLA).  Those questions are:

(1)	Can the claimant walk?

(2)	Is the claimant so severely disabled physically or mentally, that disregarding her ability to use familiar routes on her own, she is actually unable to walk out of doors without guidance or supervision most of the time?

(3)	Is the claimant so severely disabled physically or mentally that, disregarding her ability to use familiar routes on her own it would be unreasonable to expect her to walk out of doors without guidance or supervision most of the time?

If the answer to 1 is “no” the matter need go no further.  If the answer to 1 and 2 or to 1 and 3 is “yes” the claimant may be entitled to the low rate of the mobility component.

9.	As indicated above, I do not consider that this is a case where I can give the decision which the Tribunal should have given.  I therefore remit the matter to a differently constituted Appeal Tribunal for rehearing.  That Tribunal cannot take into account any circumstances not obtaining at the time when the decision appealed against was made.  In this case that was 23 July 2000.  I direct that Tribunal to record clearly its decision on the middle rate of the care component and to bear in mind the guidance given by the decisions set out above.

10.	I also direct that if considering the low rate of the care component the Tribunal to bear in mind the similar guidance given by the Chief Commissioner in decision C41/98(DLA) paragraphs 31-33.  Again the standard is whether someone is unable to prepare and cook a main meal for themselves, it is not whether it is reasonable to require assistance to do so.

(Signed):  M F BROWN
COMMISSIONER

23 APRIL 2002