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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2005] UKSSCSC CSDLA_313_2005 (10 October 2005) URL: http://www.bailii.org/uk/cases/UKSSCSC/2005/CSDLA_313_2005.html Cite as: [2005] UKSSCSC CSDLA_313_2005 |
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[2005] UKSSCSC CSDLA_313_2005 (10 October 2005)
THE SOCIAL SECURITY COMMISSIONERS
Commissioner's Case No: CSDLA/313/05
SOCIAL SECURITY ACT 1998
APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW
COMMISSIONER: D J MAY QC
Oral Hearing
Appellant: Respondent: Secretary of State
Tribunal: Glasgow Tribunal Case No:
DECISION OF SOCIAL SECURITY COMMISSIONER
" The weakness and deformity in her left leg is likely to be the cause of falls. This could be alleviated by the use of a walking stick. The appellant, a teenage girl, does not wish to use a walking stick. ".
And in paragraph 5:
" with the use of a walking stick, which she stated she was embarrassed to use, she could clearly alleviate the problems with falls. ".
Mr Orr could not recall with any degree of accuracy as to whether the argument which was placed before me in relation to the higher rate of the mobility component was one which was focused before the tribunal adequately. It is therefore difficult for me to reach any conclusion as to whether, in relation to the higher rate of the mobility component, it could be said that the tribunal erred in law. The matter is however of no consequence in respect that the case is to be reheard by a freshly constituted tribunal. In these circumstances, the issue which was raised before me in relation to the use of a walking stick by the claimant, is one in respect of which I can and will give directions to the freshly constituted tribunal.
"73(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period for which he is over the relevant age and throughout which (a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so;
(5) Subject to sub-section (4) above, circumstances may be prescribed in which a person is to be taken to satisfy or not to satisfy a condition mentioned in sub-section (1)(a) above".
Such regulations are contained in the Social Security (Disability Living Allowance) Regulations 1991. These, so far as material to this case, provide:
"12(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) of the Act (unable or virtually unable to walk) only in the following circumstances
(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to place of, or nature of, employment
(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed of which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk;
(4) Except in a case to which paragraph (1)(b) applies, a person is to be taken not to satisfy the conditions mentioned in section 73(1)(a) of the Act if he
(b) would not be unable or virtually unable to walk if he wore or used a prosthesis or an artificial aid which is suitable in his case."
"The Commissioner points out, however, that where hysteria is itself a consequence of a physical condition, it is open to a tribunal or medical board, as a matter of medical opinion, to find that where hysteria is caused by a physical condition, (for example pain due to some spinal condition), the inability to walk may itself be caused by that same physical condition".
He also relied upon what was said by Mr Commissioner Williams in CDLA/1361/1999 where at paragraph 16 he said:
"Applying that approach to the facts of this claim, I have no hesitation in stating that this is clear evidence that the claimant is virtually unable to walk because even an insignificant amount of walking causes her severe discomfort both while it happens and after it has happened. The discomfort in this case comprises not only the pain but also the physical sensation of having soiled oneself in the ways described in the papers (which would certainly be 'discomfort' in the ordinary sense of the word, though possibly not 'severe'), the embarrassment of knowing that one has soiled oneself (which again would of itself cause discomfort), and the distress caused. Looking at all these elements together they are in my view of such a magnitude in this case that I conclude that walking to any extent causes the claimant severe discomfort after the walking if not during it (and often both). The claimant is therefore within the test in regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991".
(Signed)
D J MAY QC
Commissioner
Date: 10 October 2005