Decision No: C21/03-04(DLA)
IRO: KYLE (A CHILD)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
DISABILITY LIVING ALLOWANCE
Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 10 December 2002
DECISION OF THE SOCIAL SECURITY COMMISSIONER
- This is an appeal, leave having been granted by me, by the claimant, who is the appointee and mother of the relevant child, against a decision dated 10 December 2002 of an Appeal Tribunal sitting at Craigavon. That Tribunal was dealing with a renewal claim. It decided to award the care component of disability living allowance (DLA) at the middle rate from 31 December 2001 to 30 December 2004 and to disallow the mobility component of DLA from and including 31 December 2001. In so doing it disallowed the claimant's appeal against a Departmental decision dated 11 January 2002. The appeal to me has centred on the lower rate of the mobility component. It does not appear that there is any issue as to the award of the middle rate care component nor any contention that there was entitlement to the higher rate of the mobility component. I therefore deal with the matter only on the basis of whether or not there is any error in the Tribunal's decision not to award the lower rate of the mobility component. The decision is given in the final paragraph.
- The relevant child was born on 31 December 1994 and has profound hearing loss. At the date of the Department's decision under appeal to the Tribunal he was aged just 7 years. The additional children's tests contained in section 73(4) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (the Act) therefore had to be satisfied.
- Section 73(4) reads as follows: -
"For the purposes of this section in its application to a person for any period in which he is under the age of 16, the condition mentioned in subsection (1)(d) above shall not be taken to be satisfied unless –
(a) he requires substantially more guidance or supervision from another person than persons of his age in normal physical and mental health would require; or
(b) persons of his age in normal physical and mental health would not require such guidance or supervision."
- The claimant has been represented in the appeal to me by Ms B… and at hearing by Mrs T… of the National Deaf Children's Society. The Department was initially represented by Mr Fletcher and at hearing by Miss Fleming of its Decision Making and Appeals Unit. I am grateful to all for their considerable assistance in this matter. The grounds of appeal were set out in an OSSC1 form received in the Commissioners' Office on 23 May 2003. They were as follows: -
(1) that the Tribunal had made insufficient allowance for the inexperience of the claimant and her husband and had failed to give consideration to the evidence presented;
(2) that the Tribunal had failed to make sufficient findings of fact on key questions at issue to enable it properly to come to a decision.
- The Department opposed the appeal. Observations were made on the appeal by the Department by letter dated 24 July 2003. Mr Fletcher submitted that the Tribunal had obviously considered all the evidence in the case and had given adequate reasons for its decision. He submitted also that the Tribunal had conducted a fair hearing and had given the claimant and her husband ample opportunity to present their case. Their choice to attend without representation was their own choice, they were under no duress by the Tribunal in relation thereto.
- On 22 December 2003 I sought comment from the parties on decision CDLA/4806/2002, a decision of Deputy Commissioner Ovey in Great Britain. By letter dated 27 January 2004 Ms B… made observations and by letter dated 2 February 2004 the Department made observations. Ms B… made the point, based on the above-mentioned decision, that the Tribunal had applied the incorrect test in deciding whether or not the claimant's son satisfied the conditions for the lower rate of mobility component. Ms B… submitted that the Tribunal should have considered the supervision which the child required in familiar as well as unfamiliar places and then made the comparison with other children in normal health of the same age to ascertain whether the guidance or supervision which the claimant's son required was substantially more than such other children would require.
- Mr Fletcher made lengthy observations on the said decision. Before dealing with them it would be appropriate to set out in some detail what was decided in CDLA/4806/2002 in so far as it is relevant to this present appeal. The Deputy Commissioner was dealing with an appeal in relation to the lower rate of the mobility component. The rationale of her decision involved consideration of the Great Britain equivalent of section 73(1)(d). This provision reads as follows: -
"Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which …
(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time."
The Northern Ireland provision is identically worded.
- At paragraph 15 of her decision Deputy Commissioner Ovey states as follows: -
"15. It is not disputed that the claimant is able to walk and that he suffers from attention deficit disorder. The first question which needs to be answered is therefore whether the result of his attention deficit disorder is that, at the material time, he could not take advantage of the faculty of walking out of doors without guidance or supervision from another person most of the time. When the question is first posed, it is not necessary to introduce into it any consideration of the familiarity or unfamiliarity of a hypothetical route. That becomes an issue if a claimant asserting a need for guidance or supervision is met with the answer that he manages to get around perfectly well on his own. If the claimant can respond that he can only manage when the route is familiar, then his ability to get around on his own is to be disregarded. As a matter of fact, he will satisfy the statutory test by his need for guidance or supervision on unfamiliar routes, but that does not mean that it is part of the statutory test that the route should be unfamiliar.
16. The distinction may not be significant for an adult claimant, but it can be significant for a child claimant. In the present case, I understand that the mother is saying that the claimant cannot walk out of doors without guidance or supervision whether the route is familiar or unfamiliar, because he does not recognise the risks. His is not a case in which, but for the statutory disregard of familiar routes, he could be met with the answer that it is only on unfamiliar routes that he is in difficulty. He needs guidance or supervision in any case. It follows that when the comparison is made with a child of his age of normal physical and mental health, the question is not whether such a child would need guidance and supervision on unfamiliar routes, but whether he or she would need guidance and supervision on all routes, as the claimant's mother says he does. To put it more concretely, it might be asked, for example, whether a child in normal physical and mental health would be able to walk alone from the claimant's home to the claimant's school once the route had become familiar.
17. It seems to me clear that the test the tribunal applied was whether the claimant required substantially more supervision or guidance in unfamiliar places and that the question of his total need for guidance and supervision out of doors by comparison with that of a child in normal physical and mental health was not addressed. It therefore follows that in my view the tribunal's decision was erroneous in point of law, because the test applied was not the statutory test."
At paragraph 18 she stated as follows: -
"If this approach is right, findings of fact will be required as to: -
(1) what level of supervision or guidance the claimant required at the material time when taking advantage of the faculty of walking out of doors; and
(2) whether the supervision or guidance required was substantially more than that which would be required by a child of his age in normal physical and mental heath."
- In his observations on this decision Mr Fletcher submitted that section 73(1)(d) had been introduced specifically to reverse the House of Lords Judgment in Lees –v- Secretary of State for Social Services [1985] 1AC 930. For this proposition he relied on the words of Simon Brown LJ in R(DLA)6/99 Hewitt –v- Chief Adjudication Officer and Diment –v- Chief Adjudication Officer. He submitted that in the Lees case it was decided that if a claimant could make progress on foot it did not matter whether that movement could be purposefully directed.
- Mr Fletcher submitted that, considered within the context of Lees, it seemed apparent that the term "take advantage of the faculty" in section 73(1)(d) was intended to refer to a claimant's ability to direct his walking such that he could advance from point A to point B unaided. Mr Fletcher referred also to the legislative provisions in section 73 and in regulation 12(3) of the Social Security (Disability Living Allowance) Regulations 1991 whereby persons who suffered a combination of blindness and deafness and who were unable, without the assistance of another person, to walk to any intended or required destination while out of doors could be entitled to the higher rate of the mobility component. He submitted that given that section 73(1)(d) was also directed towards people who were otherwise able to walk it seemed consistent in the overall context of the scheme and bearing in mind that the intention of the legislation was to counter the Lees judgment, to conclude that this section tested the ability to traverse routes, i.e. that routes were an integral part of the statutory test.
- Referring to paragraph 15 of CDLA/4806/2002 Mr Fletcher conceded that the word "unfamiliar" did not appear within the wording of section 73(1)(d). Relying on R(DLA) 4/01, a decision of a Tribunal of Commissioners in Great Britain and in particular on paragraph 11(f) thereof, Mr Fletcher submitted that the words "take advantage of the faculty" as used within section 73(1)(d) were of wider import than "cannot exercise" and as the Tribunal of Commissioners stated in that case carried with them "the connotation that the claimant is not able most of the time to walk over unfamiliar routes so as to be able to get to a desired destination whenever he wants to without the prescribed supervision or guidance".
- Mr Fletcher referred to the 2003 edition of Social Security Legislation Volume I at pages 160 to 162 and to the commentary therein on R(DLA) 4/01 to the effect that the Commissioners therein held that section 73(1)(d) assumes some outside walking ability and that the claimant's inability "need apply only to unfamiliar routes, and to most of the time". Mr Fletcher therefore submitted that the Commissioners had defined the minimum level of disability that must be established in order to satisfy the test. This seemed to be the generally accepted position among Commissioners and Deputy Commissioner Ovey, in the final sentence of paragraph 15, concurred with this view. That sentence reads as follows: -
"As a matter of fact, he will satisfy the statutory test by his need for guidance or supervision on unfamiliar routes, but that does not mean that it is part of the statutory test that the route should be unfamiliar."
- As regards the additional test for children under section 73(4) the Deputy Commissioner, in Mr Fletcher's submission, appeared to accept that, in the case of a person over the age of 16, it was unnecessary to establish by what degree the disability exceeded the minimum standard set by R(DLA) 4/01 but, in relation to claimants under the age of 16, it was necessary for the Tribunal to establish the total need for supervision by quantifying the degree of supervision on familiar and unfamiliar routes in order for an effective comparison with a non-disabled child of the same age to be made.
- Mr Fletcher submitted that Deputy Commissioner Ovey was incorrect in her conclusions as she did not deal with the requirement under section 73(1)(d) that any ability to use routes which were familiar must be disregarded. In Mr Fletcher's submission, an effective comparison between children could only be made by applying section 73(1)(d) to both the disabled and the well child before moving on to compare the situation under section 73(4). He submitted that paragraph 11 of R1/03(DLA) supported him in this view and stated that the disregard of any ability he may have to use routes which are familiar to him on his own must be applied to both children, i.e. the disabled and the non-disabled child. He referred also to decision CSDLA/76/98, paragraph 15 and submitted that it seemed that the non-disabled child's abilities over familiar routes could not form part of the comparison. In that paragraph, after remitting the case for rehearing, Mr Commissioner May stated: -
"The starting point for the further tribunal must be to determine the extent of the requirements in guidance and supervision of any children born in the same year as the claimant in normal physical and mental health or whether they require guidance and supervision at all over the relevant period … Once that has been established the claimant's requirements will have to be the subject of findings over the same period. The statutory disregard contained in Section 73(1)(d) of "any ability he may have to use routes which are familiar to him on his own" will require to be made both in respect of children in normal physical and mental health, if they are found to require guidance and supervision, and the claimant. Then the comparison will need to be made as to whether the claimant's requirements are "substantially more" or that of children of his age in normal health do not require guidance or supervision."
- Mr Fletcher finally referred to decision R1/97(DLA), a decision of the former Chief Commissioner where at paragraph 7 he said: -
"… in relation to the mobility component, section 74(3) of the [Contributions and Benefits] Act provides that the condition that a claimant must be so severely disabled physically or mentally that he requires guidance or supervision from another person most of the time when walking out of doors over unfamiliar routes shall not, in the case of a person under the age of 16, be taken as satisfied unless –
(a) he requires substantially more guidance or supervision than persons of his age in normal physical or mental health would require, ..."
- Mr Fletcher submitted that this paragraph together with the question suggested for the consideration by tribunals in paragraph 8 of that decision appeared to support the view that Deputy Commissioner Ovey was incorrect in deciding that it was necessary for the Tribunal to establish the total need for supervision by quantifying the degree of supervision on familiar and unfamiliar routes in order for an effective comparison to be made of the non-disabled child of the same age.
- The questions suggested in paragraph 8 are as follows: -
"A. Has the child a physical or mental disability?
B. If so, is the disability such that the child has requirements:
(a) as in section 72(1)(a)(i) of the C and B Act? (Attention in connection with bodily functions for a significant portion of the day);
(b) as in section 72(1)(b)? (Frequent attention or continual supervision throughout the day);
(c) as in section 72(1)(c)? (Prolonged or repeated attention or a need to be watched over at night).
C. If the child has any requirements of the description mentioned at B(a), (b) or (c) above, are those substantially in excess of the normal requirements of persons of his age? This is the first test as laid down in section 72(6)(b)(i) of the C and B Act, and requirements of each description which are established will require to be considered. In order to make the necessary comparisons, the tribunal will have to consider what the requirements of a normal child would be, and it would be at this stage that the totality of the claimant's needs – both disability-related and normal – would be taken into account.
D. If the requirements would not apply to a normal child of the claimant's age; but would apply to a younger child, are they substantial requirements? This is the second test in section 72(6)(b)(ii)."
The former Chief Commissioner was dealing with the care component but the additional tests for children are essentially the same.
- I begin with the claimant's first ground. It does not appear to me that there is any question that the claimant did not receive a fair hearing in this case. As Mr Fletcher has indicated there was an opportunity to seek representation. It is obvious that the Tribunal carefully explored the matter, there was no application for an adjournment to enable representation to be obtained or for further preparation to be done. It is not part of a Tribunal's function to make "allowances" it is the Tribunal's function to explore the issues raised by the evidence and apply the law to the accepted evidence. This, in my view the Tribunal has done. I consider that there is no merit in that ground. In light of my decision in this case it is not necessary that I comment on the second ground and I therefore do not do so though I am grateful to Mrs T… and Miss Fleming for their submissions thereon.
- It does appear to me that the Tribunal did ask itself the question of what supervision or guidance the child required to enable him to get around on unfamiliar routes. This is apparent from the first paragraph of the reasoning related to the mobility component where the Tribunal states in a somewhat convoluted sentence: -
"Having heard all the evidence and having read the report provided by [the claimant and her husband] we are not convinced that they have demonstrated that [the claimant's son] has needs substantially in excess of that required by a child of a similar age to [the claimant's son] but without [the claimant's son's] disability that means he needs guidance or supervision to enable him to get around on unfamiliar routes."
It appears also that the Tribunal asked itself what level of supervision children of the same age without disability would require on unfamiliar routes. I must ask myself therefore whether it erred in its interpretation of the legal provisions.
- There appears no doubt from the Tribunal's reasoning that it focused as an initial step on the child's ability to get around on unfamiliar routes. It does not seem from the evidence (though I am not altogether clear on this) that there was any contention that the child's ability and therefore need for supervision differed on unfamiliar and familiar routes. However, the comparison with non-disabled children which the Tribunal made was certainly with the ability of those children only on unfamiliar routes. The Tribunal reasons: -
"The Tribunal recognise that all children of 8 would on unfamiliar routes require guidance and supervision however [the claimant and her husband] did not demonstrate that any extra attention [their son] needed was substantially in excess of that required by other children."
- I consider that Deputy Commissioner Ovey is correct when she states at paragraph 15: -
"The first question which needs to be answered is therefore whether the result of his attention deficit disorder is that, at the material time, he could not take advantage of the faculty of walking out of doors without guidance or supervision from another person most of the time. When that question is first [my italics] posed, it is not necessary to introduce into it any consideration of the familiarity or unfamiliarity of a hypothetical route."
The statutory provision is that the claimant's ability to use familiar routes is to be disregarded. It is not that familiar routes are to be disregarded in computing the need for guidance or supervision but that the ability to use such routes on his own is to be disregarded. The disregard is of ability not of routes. The first question must then be whether or not as a result of his disablement the child could not take advantage of the faculty of walking out of doors without guidance or supervision from another person most of the time.
- It is important to note that the disregard here is narrow. It is not a disregard of the ability to take advantage of the faculty of walking in familiar places but a disregard of the ability to use familiar routes. Familiar routes are different to familiar places. Familiar routes are the pathways with which the disabled person is familiar. It appears to me that the purpose of the legislation was to permit a disregard, in considering the need for guidance or supervision, of the ability of certain disabled people to walk alone on set and regularly used routes. The word in question is "routes" not "places" and that is a distinct concept and should, in my view, be interpreted along the lines indicated above.
- Mr Fletcher submits that section 73(1)(d) was introduced specifically to reverse the House of Lords Judgment in the case of Lees –v- Secretary of State for Social Services [1985] 1AC 930. That may be correct. He submits that Deputy Commissioner Ovey concluded that the ability to traverse routes did not form an integral part of the test and that if that was her conclusion she did not, in her decision, address the meaning of the phrase: -
"take advantage of the faculty"
as used within the section 73(1)(d) and that she was wrong in her conclusions. I do not read Deputy Commissioner Ovey's decision as deciding that how the claimant traversed routes was no part of the test. At paragraph 16 she states: -
"In the present case, I understand that the mother is saying that the claimant cannot walk out of doors without guidance or supervision whether the route is familiar or unfamiliar, because he does not recognise the risks. His is not a case in which, but for the statutory disregard of familiar routes, he could be met with the answer that it is only on unfamiliar routes that he is in difficulty. He needs guidance or supervision in any case. It follows that when the comparison is made with a child of his age of normal physical and mental health, the question is not whether such a child would need guidance and supervision on unfamiliar routes, but whether he or she would need guidance and supervision on all routes, as the claimant's mother says he does."
- I do not consider that the Deputy Commissioner concluded what Mr Fletcher submits she concluded. She certainly does not leave the ability to traverse routes out of the matter when considering whether a person can take advantage of the faculty of walking. If she had so decided I would disagree with her. It appears to me evident as Mr Fletcher has stated, that the ability to traverse routes is a matter which will fall to be considered when deciding whether a person can "take advantage" of the faculty of walking. It would be difficult to say that a person could "take advantage of" his or her faculty of walking without guidance or supervision if he or she could not self-pilot.
- Mr Fletcher makes a further point in relation to whether the initial consideration should be of unfamiliar routes alone or of all routes. In so doing he refers to paragraph 11(f) of R(DLA) 4/01 where the Tribunal of Commissioners states: -
" Section 73(1)(d) does not contain the words "cannot exercise the faculty of walking" but uses the words "cannot take advantage of the faculty of walking". We observed that the Commissioner in CDLA/757/1994 and Mr Forsdick, in the re-formulation which we invited him to make, substituted the words "cannot exercise" for "take advantage of". We accept Mr Drabble's submission that these last words are of wider import than "cannot exercise" and carry with them the connotation that the claimant is not able most of the time to walk over unfamiliar routes so as to be able to get to a desired destination whenever he wants to without the prescribed supervision or guidance."
- Unfortunately that decision does not set out what if any submission Mr Drabble actually made on the question of what routes were to be considered in deciding whether or not a claimant could take advantage of the faculty of walking without guidance or supervision. The summary of Mr Drabble's submission on what is described as "this main issue" (that being whether supervision or attention requirements which could go towards satisfaction of the care component conditions should or should not be taken into account in determining whether or not the conditions for low rate mobility component were satisfied), do not refer to the question of what routes should be taken into consideration. It therefore appears to me that the latter part of the final sentence of paragraph 11(f), i.e. the part which reads: -
"… and carry with them the connotation that the claimant is not able most of the time to walk over unfamiliar routes so as to be able to get to a desired destination whenever he wants to without the prescribed supervision or guidance."
is obiter and is not indicating a view that needs on unfamiliar routes only should be considered in ascertaining supervision needs in connection with the low rate of the mobility component. If a claimant does not have needs on unfamiliar routes he is unlikely to have them on familiar ones. I do not read the above extract as indicating more than this.
- It appears to me quite evident from the words in section 73(1)(d) that the overall ability of the disabled person to take advantage of the faculty of walking is the starting point. That being so this will involve considering the ability to do so whether on familiar or unfamiliar routes. If needs on unfamiliar routes only were to be considered there would be no need for the specific disregard of the ability to use familiar routes alone. The ability, if there is any, to use familiar routes on his own is then to be disregarded. This does not mean that a person who has no ability to use familiar routes is to have his needs for supervision considered only on unfamiliar routes. It is to be considered on all routes. If he has an ability to use familiar routes on his own this ability is to be disregarded. The disregard may be most helpful in deciding whether he requires guidance or supervision "most of the time". In practice it may avoid having to enter into examination of when familiar and unfamiliar routes are used and for how long.
- As Deputy Commissioner Ovey stated this matter is unlikely to be of any great importance in the case of an adult claimant but it can be significant in the case of a disabled child. This is because of the comparison which is required to be made in the case of a child by section 73(4). To give a hypothetical example, it may be that a non-disabled child would not be found to require supervision on familiar routes though would require supervision on unfamiliar routes whereas a disabled child might be considered to require supervision on both, i.e. there is no ability to be disregarded. The authorities are consistent, and I agree that the ability to use familiar routes on his own must be disregarded in the case of the non-disabled child, as in that of the disabled child. However when making the comparison demanded by section 73(4) in the above example there will be no ability to be disregarded for the disabled child but an ability to be disregarded for the non-disabled child. I will try, as Mr Fletcher did in the written submissions, to give a numerically based illustration: -
Non-disabled child (NDC)
Supervision (full ability on his own), requirement on familiar routes = 0
Supervision on unfamiliar routes = 9
____
9
Disabled child (DC)
Supervision (no ability on his own), requirement on familiar routes = 9
Supervision on unfamiliar routes = 9
_____
18
If NDC and DC are compared only over unfamiliar routes their supervision requirements are the same at 9 each. If they are compared over all routes their supervision requirements are very different. This remains so even when the ability to use familiar routes alone is disregarded, as it should be, in both cases. NDC has ability which is disregarded. DC has no ability to disregard.
- In relation to this case I come to the Tribunal's reasons for the decision. The first paragraph of the reasoning reads: -
"Having heard all the evidence and having read the reports provided by [the claimant and her husband] we are not convinced that they have demonstrated that [the claimant's son] has needs substantially in excess of that required by a child of a similar age to [the claimant's son] but without [the claimant's son's] disability that means he needs guidance or supervision to enable him to get around on unfamiliar routes."
As I stated above it does not appear from the evidence that any distinction was being made by the child's parents between his ability to walk unsupervised on familiar routes and on unfamiliar routes. They appear to me to be contending that his deafness essentially affected him in the same manner on whatever routes he was on. The first paragraph of the reasoning does, however, indicate that the Tribunal may well have been applying the wrong test, i.e. the test of considering only the ability to walk on unfamiliar routes. That is the incorrect starting point. The starting point is the child's ability on any routes whether familiar or unfamiliar. Then the ability to use familiar routes on his own is to be disregarded. If he has no such ability then there is no disregard to be made. The Tribunal here seems to have begun by considering only the ability to walk out of doors without guidance or supervision on unfamiliar routes. As stated above the matter becomes of particular relevance and importance when the comparison between the child with a disability and a child without a disability is made. The Tribunal here has stated: -
"The Tribunal recognise that all children of 8 would on unfamiliar routes require guidance and supervision however [the claimant and her husband] did not demonstrate that any extra attention [the claimant's son] needed was substantially in excess of that required by other children."
From that passage and the passage extracted earlier it appears that the Tribunal, in making the required comparison, did so only on the consideration of the needs on unfamiliar routes and did not deal with whether the disabled child or non-disabled child had such needs on familiar routes. That, in my view, is an error of law and I set the Tribunal's decision aside for that reason.
- I come now to consider whether or not this is a case where I can give the decision which the Tribunal should have given or whether I should remit the matter to a differently constituted Tribunal for rehearing. Mrs T… wanted me to decide the matter myself and Miss Fleming (if I considered there was an error) wanted me to refer the matter to another Tribunal which would have a medical member and be able to access reports.
- I have decided that I should adopt the course of action preferred by Miss Fleming and remit the matter for rehearing by a different Tribunal. There are issues here which are factual and which will require some detailed exploration in relation to the needs of the relevant child on both familiar and unfamiliar routes and in relation to the needs of a non-disabled child of the same age. The Tribunal with its wider expertise is better placed than I am to do so. I would, however, add the caveat that my having set aside the decision of the Tribunal should not be taken as any predictor of the likely outcome of this case.
- The appeal succeeds.
(signed) M F Brown
Commissioner
16 July 2004
