- This appeal, brought by the Secretary of State with leave of the regional chairman, succeeds. The decision of the tribunal on 17 10 01 was erroneous in point of law, as explained below. I set it aside and remit the appeal to a differently-constituted tribunal for rehearing.
- This appeal had already been twice decided adversely to the claimant and in favour of the Secretary of State, but both decisions had to be set aside, on purely procedural grounds, because of mistakes made by the Commissioners' office. An oral hearing had been requested, and when I set aside the second decision I directed one. The claimant, whose parents attended, was represented by Mr Joe Collins, of the local authority welfare rights department. The Secretary of State was represented by Mr Huw James. I am grateful to both representatives for their help, and to the claimant's parents for evidence they gave me. Mr Collins told me that the claim for lowest rate care component was no longer being pursued. The appeal therefore turned entirely on lower rate mobility component.
- The appellant, born on 28 11 58, suffers from severe chronic atopic photosensitive eczema and multiple contact allergies, for example to natural latex rubber and lanolin (page 99). He is on continuous immunosuppressant drugs as well as topical steroids and creams. The limitations his conditions place on him are amply attested by the medical evidence, and as I assured his parents during the hearing, the severity of these conditions is and has always been accepted. They mean that he cannot be outdoors in daylight and has to beware of certain kinds of electric light, such as strip lights. He has special ultra violet screening on the glass of his windows and on the windows of his car. Most sunblocks do not give adequate protection. The claimant previously had a higher rate mobility award which helped him run his car. But this was terminated following commissioner's decisions, upheld by the Court of Appeal as Hewitt v CAO and Diment v CAO and reported at R(DLA)6/99, that the virtual inability to walk, or risk of serious deterioration in health, required by s73(1)(a) of the Contributions and Benefits Act 1992 and DLA regulation 12 had to be caused by the physical act of walking, not by a skin condition that could or would be exacerbated by exposure to daylight. This was not a change in the wording of the regulations but a binding interpretation of what they mean. Decision makers must follow it, and it is grossly unfair to accuse them, as the consultant did in a letter to the MP at page 46, of a wilful refusal to acknowledge the nature of the claimant's disability. The decision makers had made an award, which turned out to have been wrong in law, for as long as they properly could.
- The appellant made a fresh claim, this time seeking lower rate mobility component. To qualify for this under s73(1)(d) of the 1992 Act, a claimant must be
...able to walk but [be] 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 reference to unfamiliar routes suggests that this subsection was primarily intended for the blind or for those with mental problems which might allow them to use a familiar route unaccompanied but not an unfamiliar one. But it does refer to physical disablement without further overt qualification.
- By ss(8), a person does not qualify for any period unless during most of that period his condition will be such as permits him from time to time to benefit from enhanced facilities for locomotion.
- A visiting doctor while, as it seems to me, fully recognising the appellant's conditions, was of the opinion that he did not need any guidance or supervision for outdoor walking on an unfamiliar route.
- The decision maker argued, on departmental medical advice, that the appellant would be able to walk outdoors in daylight unaccompanied if he covered his head, face and neck with eg light cotton cloth and used sunglasses or a visor protective against ultra violet waves. A Northern Ireland commissioner in C19/98(DLA) had held that aids and appliances to facilitate unaccompanied walking might properly be taken into account in considering the need for outdoor guidance or supervision from another person. Unfortunately, instead of considering whether this might be a practicable alternative, the GP responded angrily that to suggest the appellant should go out "covered in cotton gauze" was "patently ludicrous and, worse, is a demeaning suggestion", and amounted to insensitive treatment. It was not insensitive treatment. It was a suggestion prompted by the law and deserving serious consideration. If it was not practicable, so be it. If it was, then being demeaned was a result of the disability, not of the legal criteria for an award.
- The main argument for the appellant, to which the tribunal acceded, was that in one sentence in paragraph 15 of CDLA/42/94 the commissioner said it would be absurd if a claimant whose disablement was so severe that he was not able to take advantage of the faculty of walking on unfamiliar routes out of doors even with guidance or supervision was excluded from s73(1)(d). The claimant in CDLA/42/94 was, however, able to take advantage of guidance or supervision for at least some outdoor walking, even though her agoraphobia and panic attacks made her want to return home after only a short distance. The evidence in the present case is that the appellant cannot safely do any outdoor walking in daylight, whether accompanied or not, and no amount of encouragement or cajoling could properly persuade him to take the risk of exposure. I agree that s73(1)(d) does not (unlike the care provisions in s72) make "supervision" contingent on there being a risk of substantial danger to a claimant in its absence. But in the present case there is a risk of substantial danger to the appellant if he does walk outdoors in daylight, and it would be positively dangerous for anyone to subject him to more prolonged exposure by encouraging him to walk further. He is, however, able to walk outdoors alone once darkness falls.
- CDLA/42/94 was an early decision on the lower rate mobility component, and the commissioner was concerned (paragraph 22) to give directions about "guidance" and "supervision" which might be of use to tribunals in general, not merely the rehearing tribunal to which he remitted the case. I confess I do not entirely follow his argument about the negative formulation of s73(1)(d). But I observe that in the same paragraph 15 as the sentence Mr Collins relied on the commissioner says that s73(1)(d)
is manifestly not intended to assist a physically disabled claimant who is able to walk and [does not fall within s73(1)(a)] where the limits on the claimant's walking ability do not stem from an absence of guidance or supervision. Such a claimant, whose walking ability might be limited by increasing pain or fatigue, cannot say "The amount of walking I can do is not of any practical use to me in the real world: although I can walk I cannot take advantage of the faculty of walking and guidance or supervision would not help me; therefore I qualify for the lower rate mobility component of DLA". Section 73(1)(d) can only apply when the nature of the limit on the claimant's walking ability imposed by [his] physical or mental disablement is such as could, in its general nature, be extended when guidance or supervision from another person is available.
Mr Commissioner Mesher made the same points in his summary at paragraph 22(d) and (h). They seem to me precisely (and sadly) to cover the present appellant. I am fortified in this view by the decisions of Mr Commissioner Angus in CDLA/2364/95 and Mr Commissioner Jacobs in CDLA/585/01, both of which concerned claimants who would not walk outdoors even with guidance or supervision and both of which relied, entirely properly as it seems to me, on s73(8) (set out above). These cases also dispose of the argument (again rejected by the commissioner in paragraphs 20 and 21 of CDLA/42/94) that the present appellant is entitled to make a voluntary choice not to go outdoors, whether accompanied or not, during daylight while still having an entitlement to lower rate mobility component. The tribunal's decision was simply wrong in law, and I set it aside. I substitute my own decision under s14(8)(a)(i) of the Social Security Act 1998: the appellant does not qualify for lower rate mobility component on the first argument.
- However, Mr Collins raised another argument in an attempt to overcome the fact that the nature of this appellant's condition is not such that his walking ability could be extended by guidance or supervision. He submitted that the appellant could walk further outdoors if his head was swathed in an overcoat and he received guidance (rather than supervision) because of being thus temporarily blind. His father confirmed to me that this expedient is sometimes followed, eg when the appellant has a hospital appointment and has to walk a certain distance outdoors in daylight. It is here, rather than in connection with the first argument, that the references to Mallinson v Secretary of State for Social Security [1994] 1 WLR 630 and Secretary of State v Fairey [1997] 1 WLR 799 possess such relevance as they have. In both cases it was held that complete, and not only partial, absence of, respectively, sight and hearing did not disentitle a claimant from benefit.
- I had hoped to be able to determine this argument, as well as the other, myself with the help of further evidence. I put it to the appellant's parents that if walking outdoors independently but with his face and neck covered in some cloth such as a burka, and with an ultra-violet protective sun visor, was thought to be demeaning, would it not be equally demeaning to walk outdoors for any distance with one's head swathed in an overcoat and led by the elbow? I also asked whether the former alternative had been seriously considered: was there any cloth that would be adequate protection (there is an indication in one of the consultant's letters at page 87 that "light clothing" would not suffice) and would not trigger the appellant's allergies, and were ultra-violet sun visors available? Unfortunately, the appellant's parents were not able to deal with these questions. It seemed they had never been pursued.
- I therefore remit the appeal for rehearing. The rehearing tribunal must be provided with evidence about the feasibility of the cloth-and-visor suggestion. If it is feasible, I anticipate that would be the end of the matter, though it will be for the tribunal to decide. If it is not, the tribunal will consider whether a temporary and voluntarily-assumed blindness would as a matter of fact be a proper and realistic course for the appellant to adopt (and one which he would be likely to adopt other than as the temporary expedient for which it has so far been used) in order to extend his daylight walking ability – his walking ability in darkness not being affected - so that it can be said that he cannot walk out of doors without guidance.
- As I am remitting the appeal, it will of course be open to the appellant to raise arguments, if he wishes, on the care aspects of DLA.
(signed on original) Christine Fellner
Commissioner
12 December 2002
