DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

The decision of the Taunton domiciliary appeal tribunal dated 24 November 2008 under file reference 206/08/00590 involves an error on a point of law.  The tribunal’s decision is set aside.

The Upper Tribunal is not in a position to re-make the decision under appeal.  The appeal against the decision of the Secretary of State dated 6 March 2008 is therefore sent back to a new appeal tribunal to be re-heard.  The new tribunal should have regard to the Directions at paragraph 40 below.

This decision is given under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The decision in summary

1.		This is the claimant’s appeal to the Upper Tribunal against the decision of a domiciliary appeal tribunal (i.e. held at the claimant’s home) dated 24 November 2008.  My decision is that the appeal tribunal’s decision involves an error of law.  I allow the claimant’s appeal to the Upper Tribunal and set aside the tribunal’s decision.  The claimant’s appeal against the Secretary of State’s decision dated 6 March 2008 on his disability living allowance (DLA) renewal claim will have to be re-heard by a new tribunal.

The claimant’s condition

2.		The claimant is a gentleman now aged 48.  He has chronic fatigue syndrome and ME.  The claimant and his wife have described the debilitating nature of his illness.  The claim was supported by the claimant’s GP, who wrote as follows: “For the last few years he has been unable to leave his bedroom other than just trying to get to the bathroom.  Even this amount of effort he finds very difficult and consequently his mobility is very poor.  He is definitely housebound and has not been down the stairs to the lower floor of his house for a number of years now.”    

The background to the appeal

3.		The claimant had previously been awarded the higher rate of the mobility component of DLA and the lowest rate of the care component, both for a three year period from 14 August 2005.  It seems that the 2005 decision was based solely on the claimant’s DLA claim pack, in which he described himself as bedridden and housebound. 

4.		In February 2008 the claimant made a renewal claim for DLA.  Again, he described how he was bedridden and housebound.   On 6 March 2006 a decision maker concluded that the claimant was not entitled to the mobility component but made an indefinite award of the lowest rate of the care component as from 14 August 2008.  The notification letter explained that: “You cannot get help with getting around because you do not gain benefit from time to time from enhanced facilities of locomotion”.  Although not stated as such, this was a reference to section 73(8) of the Social Security Contributions and Benefits Act 1992.

5.		The claimant appealed against the refusal of the mobility component, arguing that as he and his wife live in a semi-rural location “the car is a very important lifeline and necessity to us”.  The decision of 6 March 2008 was reconsidered but not changed by a decision maker.

6.	Meanwhile the claimant explained that his condition had not changed, that he had been housebound for some years and this had never been raised as an issue before.  As he put it, “So seeing my condition has not improved I cannot understand the decision to stop the high rate mobility component.”

7.		In September 2008 the claimant filled in a further DLA claim pack, arguing that his care and mobility needs had increased from 28 June 2008.  No decision was taken on this claim, presumably in part as the Department may have thought it wise to await the outcome of the appeal against the renewal decision of 6 March 2008.

The Taunton domiciliary appeal tribunal’s decision

8.		A tribunal, comprising a lawyer, a doctor member and a disability member, met at the claimant’s home on 24 November 2008 to hear his appeal.  The hearing actually took place in the claimant’s bedroom, with the claimant lying in or on the bed.  His wife was also present to give evidence.  

9.		The tribunal’s decision was to disallow the claimant’s appeal and to confirm the Secretary of State’s decision of 6 March 2008.  The District Tribunal Judge who chaired the tribunal subsequently issued a six-page Statement of Reasons.

10.	The key paragraph of the tribunal’s reasons in relation to the claim for the higher rate of the mobility component read as follows:

“26.	The clear issue in this case was whether or not [the claimant] was entitled to receive mobility component of Disability Living Allowance at either rate.  We were of the view that Section 73(8) of the 1992 Act was important which provides that “a person shall not be entitled to the mobility component for a 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.” The Tribunal considered and applied the Social Security Commissioner’s decision in CDLA/2142/2005 and CSDLA/12/2003 because the appellant could not reasonably be persuaded to go out of doors by anybody including his wife.”

11.	The District Tribunal Judge in question refused permission to appeal.  A different District Tribunal Judge declined to set aside the tribunal’s decision as there had been no procedural irregularity, and commented that section 73(8) “says, in effect, that the person who is confined to his bed cannot be entitled to the mobility component of Disability Living Allowance”.

12.	The claimant renewed his application for permission to appeal before the Upper Tribunal.  His main grounds of appeal were that the use of a car was an essential lifeline, so that his wife could collect medicines on his behalf, and that the tribunal has misapplied section 73(8) and erred by extending its scope.  I granted the claimant permission to appeal, also identifying a number of other potential difficulties with the tribunal’s decision.

13.		Mrs Dean, the Secretary of State’s representative now involved in this case, supports the claimant’s appeal to the Upper Tribunal in certain respects in a detailed and helpful submission.   She consents to a decision of the Upper Tribunal without reasons.  However, given the issues raised, and especially the proper scope of section 73(8), I give the Upper Tribunal’s reasons as follows.

14.	The tribunal’s decision involves errors of law in the following two main respects.  First, the tribunal failed make sufficient findings of fact and to explain adequately why the previous award of the higher rate of the mobility component had not been renewed.  Secondly, the tribunal misinterpreted and misapplied section 73(8) of the Social Security Contributions and Benefit Act 1992.

Did the tribunal explain adequately why the previous award had not been renewed?

15.	There is, of course, no guarantee that an existing award of DLA will be extended on a renewal claim.  However, as Mr Commissioner Howell QC explained in reported decision R(M) 1/96 (at paragraph 15):

“the need to give reasons to explain the outcome of the case to the claimant means either that it must be reasonably obvious from the tribunal’s findings why they are not renewing the previous award, or that some brief explanation must be given for what the claimant will otherwise perceive as unfair. This is particularly so where (as in the present and no doubt many other cases) the claimant points to the existence of his previous award and contends that his condition has remained the same, or worsened, since it was decided he met the conditions for benefit.”

16.	The tribunal in the present case did not meet that standard.  The Statement of Reasons fell into three parts.  The first 11 paragraphs set out the chronology of events clearly and concisely.  The following 12 (much longer) paragraphs concerned the evidence in the case.  The final five paragraphs (including the central paragraph 26, cited at paragraph 10 above) were headed “Reasons for the Decision of the Tribunal”.

17.	The middle part of the Statement of Reasons, comprising 12 long paragraphs, is a comprehensive account of the evidence.  But, as Mrs Dean now submits, it does not actually make sufficient findings of fact.  Rather, it “contains a long narration of the oral and written testimony as provided by the claimant, his wife and the claimant’s GP”.  

18.	One example will suffice.  In paragraph 12 of the Statement of Reasons, which is almost a page long in itself, one sentence starts as follows: “[The claimant] explained he had no strength in his legs at page 64 and said that he does not go out of doors at all….”  It is unclear whether the tribunal accepted that evidence.  In all, in that single paragraph, the expression “[the claimant] said” occurs in seven places, while the tribunal also recorded that the claimant “stated” (five times) or “explained” (four occasions) other matters.  Actual findings of fact are few and far between.

19.	As Gibbs J explained pithily in LJ v Devon County Council [2001] EWHC (Admin) 958, “mere recitation of evidence is no substitute for the giving of reasons” (at paragraph 50).  This is not a new principle for tribunals.  Some 25 years ago, in R(SB) 42/84, Mr Commissioner Mitchell explained that the statutory requirements for statements of reasons (albeit then expressed in slightly different terms) meant that “it was incumbent upon the tribunal to make findings upon the matters material [to the question is issue] and not merely to record contentions or statements made in that connection” (at paragraph 6).

20.	In the present case the tribunal did not make any findings of material facts as to the claimant’s actual walking ability in accordance with regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890).  As Judge Jacobs has recently explained, it may be illusory to expect absolute precision in fact-finding (see CDLA/3519/2008 [2009] UKUT 45 (AAC)), but there must be some fact-finding sufficient to ground the decision.

21.	In this context I note the complaint by the claimant’s wife that the tribunal failed to ask him to stand, walk or inspect his legs for his physical condition to be checked in any way, despite having had the time to do so.  However, in this particular type of appeal a tribunal is expressly barred by statute from carrying out a physical examination of the claimant (see Social Security Act 1998, section 20(3) and regulation 52 of the Social Security (Decisions and Appeals) Regulations 1999 (SI 1999/991)).

22.	This rule (or rather its predecessor) was introduced in part because of complaints about the nature of the old “walking test” for the former mobility allowance. The rule does not prevent a tribunal relying on observations of the claimant during the hearing (see R(DLA) 1/95 and R(DLA) 5/03, and the Northern Ireland Tribunal of Commissioners’ decision in R1/01(IB)).  This qualification, of course, is itself subject to natural justice considerations (see R(DLA) 8/06, paragraphs 12-19).

Did the tribunal apply section 73(8) of the 1992 Act correctly?

23.	The tribunal agreed with the initial decision maker that the claimant was not entitled to the mobility component because his condition was not such as to permit him “from time to time to benefit from enhanced facilities for locomotion” (although this requirement now appears in section 73(8) of the 1992 Act, it previously appeared in section 37A(2)(b) of the Social Security Act l975). In particular, the tribunal’s Statement of Reasons asserts that: “the appellant could not reasonably be persuaded to go out of doors by anybody including his wife”.  

24.	This last phrase is undoubtedly a finding of fact.  It also implies that there was some mental health factor that prevented the claimant from going outside.  However, as Mrs Dean rightly submits, there was actually no evidence before the tribunal to justify this finding of fact, which amounts to an error of law in itself (see R(A) 1/72, paragraph 4).

25.	The tribunal also relied on the two Social Security Commissioners’ decisions in CDLA/2142/2005 and CSDLA/12/2003.  However, it is important to note that these decisions were both concerned with entitlement to the lower rate mobility component under section 73(1)(d) of the 1992 Act (e.g. because of agoraphobia).  The same is true of the more recent decision in CDLA/496/2008. The Commissioners’ observations in those decisions on the scope of section 73(8) need to be understood in that context.  In the present case it does not seem to have been suggested that the claimant’s condition is other than physical in nature.
26.		As Mrs Dean submits, the tribunal seemed to believe that the claimant’s inability to venture outdoors “was the claimant’s choice and that he was mentally unable to leave his room.  In my submission the only thing that prevented the claimant from leaving his room was his lack of physical strength.  However, they failed to take into account the fact that if the claimant was physically helped down the stairs and into a wheelchair then this would overcome section 73(8).”

27.	The same point is effectively put, albeit rather more graphically, by the claimant’s wife in her submission: “And yes if he had a man that could physically carry him down the stairs, and into a wheelchair, then yes I would be able to take him out in the car as there is nothing mentally stopping him from going outside or into a car”.  She also points out that her husband does not fall within the various categories mentioned in paragraph 61414 of Chapter 61 of Volume 10 of the Decision Makers Guide.  That official guidance cites reported decision R(M) 2/83 in this context.

28.		However, in reaching its own decision, the tribunal in this case failed to have regard to that leading case on the application of section 73(8).  R(M) 2/83 concerned a young girl with epilepsy, poor eyesight and severe learning difficulties.  The medical appeal tribunal concluded that she was not entitled to the former mobility allowance as her condition was such that she would not be able to benefit from enhanced facilities (for locomotion).

29.	Allowing the appeal, Mr Commissioner Morcom held that there was no evidence before the medical appeal tribunal that the girl would be unable to benefit from enhanced facilities for locomotion, and the tribunal had failed to give its reasons for reaching that conclusion.  In doing so, the learned Commissioner approved the following passage from the second edition of The Law of Social Security by A. Ogus and E. Barendt (1982) at page 184:

“The allowance is not available to all severely disabled persons.  Legislation provides that it is payable only where the invalid’s condition is ‘such as permits him from time to time to benefit from enhanced facilities for locomotion’.  This obviously excludes human vegetables and those whom it is unsafe to move, but it is arguable that of the remainder there will be few who will not receive some benefit from the occasional sortie, and it is not easy to draw a line between the deserving and the undeserving except on some arbitrary basis.”

30.	In R(M) 1/83 Mr Commissioner Morcom concluded that this extract “sets the test out correctly”, although adding that he “would add a further category of excluded persons, that is persons so severely mentally deranged that a high degree of supervision and restraint would be required to prevent them either injuring themselves or others” (at paragraph 11).  The learned Commissioner concluded:

“…the word ‘benefit’ particularly in the context of ‘from time to time’ merits a liberal interpretation involving mental stimulation from being able to get out and about without the claimant necessarily appreciating himself that he does derive mental benefit.  Locomotion is of course not confined to walking.”

31.	The passage cited from the second edition of The Law of Social Security now appears in a rather shorter treatment of the relevant statutory provision in the current fifth edition of that text at page 693 (with the substitution of “patients in a persistent vegetative state” for the now dated term used in the second edition).  However, it is arguable that Mr Commissioner Morcom’s further example relating to the category of “severely mentally deranged” persons itself needs to be reconsidered.  
32.	It is not just that the language used would now be considered inappropriate.  It is that when the former mobility allowance was transformed into the higher rate of the mobility component of disability living allowance in 1991, Parliament took the opportunity to extend entitlement to those persons who are “severely mentally impaired”, display “severe behavioural problems”, and qualify for the highest rate of the care component (see section 73(1)(c) and (3) of the 1992 Act and regulation 12(5) and (6) of the 1991 Regulations).  That legislative extension of entitlement casts some considerable doubt on the exclusion of that extra category of individuals identified by Mr Commissioner Morcom.

33.	Be that as it may, the general approach set out in The Law of Social Security and approved in R(M) 2/83 happens to be consistent with assurances given by ministers to Parliament when the precursor of section 78(3) was debated.  At the time the minister, Mr Alf Morris MP, stated (Hansard, House of Commons Debates, Vol. 893 col. 468, 11 June 1975):

"The purpose of the clause is to provide for the payment of a mobility allowance … to severely disabled people who are unable to walk, or are virtually unable to do so, and who are likely to remain so severely handicapped for at least a year. It will be available to disabled people over the age of five but under pension age. An award will not depend - as the present vehicle service depends - upon ability to drive a car. The person receiving the benefit will be able to use it in any way he chooses as being the most suitable to help with his mobility problems.

By definition of its title, the mobility allowance will not be payable to someone who is totally incapable of mobility. Here we have in mind, for example, someone who for medical reasons should not be moved or who is in a coma and has no appreciation of his surroundings. We all know that severe head injuries caused by a road accident may mean, in rare and tragic cases, that someone spends the rest of his life, such as it is, in a coma and dies without recovering consciousness. It would clearly be inappropriate to pay such a person a mobility allowance. Equally, it is not the intention that a severely disabled person who can appreciate a change of surroundings but for whom outings are infrequent - and expensive - should be disqualified. We fully accept also that quite severely mentally handicapped people can in their own way enjoy mobility which has been previously denied to them by their additional loco-motor disabilities."

34.	The liberal construction of the notion of being able “to benefit from enhanced facilities for locomotion” has also been confirmed by subsequent case law.  In Clarke v South Yorkshire Transport Ltd [1998] EWCA Civ 503, a decision of the Court of Appeal concerning the assessment of personal injuries damages, one of the issues was the extent to which the plaintiff’s receipt of mobility allowance should be taken into account. Mantell LJ rejected a narrow reading of what was then section 37A(2)(b), and is now section 73(8), noting that “The facilities may take a variety of forms and would certainly include whatever outings are provided for her for those who care for her.”

35.	The tribunal’s failure to adopt the construction of section 73(8) identified in R(M) 2/83 and its reliance instead on, and misapplication of, the two unreported decisions involving the interaction of section 73(8) with the lower rate mobility component represents a further error of law.  As Mr Commissioner (now Judge) Rowland explained in R(DLA) 6/03, “Only if the claimant cannot benefit from any enhanced facilities for locomotion does section 73(8) come into play” (at paragraph 4).

36.	There is one further matter to note in relation to section 73(8).  The claimant’s case is that he is not excluded by section 73(8) of the 1992 Act because his wife routinely uses the car to collect prescriptions and on occasion emergency medical supplies for him.  Mrs Dean, for the Secretary of State, argues that this is to stretch the boundary of the statutory wording impermissibly and is not within the intention of the legislature.

37.	I agree with Mrs Dean’s submission on this point. The reference to “benefit” in section 73(8) of the 1992 Act must involve some direct benefit, however broadly construed, to the claimant’s physical or mental health by the very act of the claimant himself or herself being assisted in venturing outside. As Mr Commissioner Morcom explained, the word benefit “merits a liberal interpretation involving mental stimulation from [the claimant] being able to get out and about…  Locomotion is of course not confined to walking.”

38.	For the reasons above the appeal tribunal’s decision involves an error of law.  I set the decision aside.  A new tribunal will have to rehear the claimant’s appeal.  The new tribunal should note that the Secretary of State has since superseded the tribunal’s decision in a decision dated 8 January 2009.   As a result, the claimant has been awarded the highest rate of the care component of DLA as from 28 September 2008.  This was presumably in response to the claimant’s supersession application referred to at paragraph 6 above.  The new tribunal should therefore consider the claimant’s entitlement to either rate of the mobility component for the period from 14 August 2008 and to any rate of the care component for the closed period from 14 August 2008 to 27 September 2008.

Conclusion

39.		For the reasons explained above, the decision of the tribunal involves an error of law.  I therefore allow the appeal by the appellant to the Upper Tribunal.  The decision of the appeal tribunal is set aside and a new tribunal should re-hear the appeal, subject to the following directions.

40.	The following directions apply:

(1)	The rehearing will be at an oral hearing. 

(2)	The new tribunal should not involve any member who was a member of the previous tribunal involved in hearing this appeal.

(3)	The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal (and not as the circumstances are at the date of the rehearing). 

(4)	If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the tribunal within one month of the issue of this decision. 

(5)	The new tribunal should be provided with a copy of the submission to the Upper Tribunal by Mrs Dean, on behalf of the Secretary of State, dated 20 April 2009.
(6)	The tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal.  

41.	These directions are all subject to any later directions by a Regional or District Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.   In that context I note that the appellant’s wife has requested a further domiciliary hearing in the event that there is a new tribunal (page 217).

42.	It is not appropriate for the Upper Tribunal to make a specific direction to that effect.  This is a matter for a case management direction in the First-tier Tribunal, taking into account all the relevant circumstances.  The presumption, of course, is that all hearings are in public (Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685), rule 30(1)).  However, the tribunal may direct that a hearing be in private (rule 30(3)).  The District Tribunal Judge will doubtless consider the issues raised by Articles 6 and 8 of the European Convention on Human Rights.  He or she will also note the previous tribunal’s acceptance that a domiciliary hearing in this case was entirely appropriate.

Signed on the original			Nicholas Wikeley
on 21 May 2009				Judge of the Upper Tribunal