THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The decision of the tribunal given at Hamilton on 28 January 2014.

The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out.

REASONS FOR DECISION

1.	The claimant has appealed against the decision of the tribunal which confirmed the decision of the Secretary of State of 1 March 2013 and found that the claimant remained entitled to the lower rate of the mobility component and the middle rate of the care component of the allowance from 15 July 2004 for an indefinite period. 

2.	The grounds of appeal are related both to the higher rate of the mobility component and the highest rate of the care component.  They are to be found at pages 182 and 183.  

3.	In respect of the higher rate of the mobility component the Secretary of State asked that the appeal in this case be sisted pending the outcome of the appeal to the Court of Session in the case of CSDLA/235/2013.  I refused this motion and made a direction to the Secretary of State.  In that direction I said:

	“The claimant in his grounds of appeal has recorded what the Upper Tribunal Judge held in CSDLA/235/2013.  He has not however explained why in the light of that decision the tribunal erred in law in determining that the criteria in the statutory provision was not met.  I note that whilst the Upper Tribunal Judge held that regulation 12(1A) was ultra vires in the appeal before him he determined that notwithstanding that finding the claimant had no entitlement to the higher rate of the mobility component under section 73(1AB)(a) of the Act on the definition of severe visual impairment as set out in regulation 12(1A) of the regulations.  

	It appears, on the face of it, that the claimant in this case does not satisfy the conditions for the higher rate of the mobility component according to the conditions set out in the legislation and if the Court of Session were to hold that the regulations were ultra vires and a nullity the claimant would not satisfy the conditions on these grounds also.  It is in these circumstances incumbent upon both parties to make submissions as to how the claimant could on any view be found as a matter of law in light of the fact to satisfy the conditions for entitlement introduced by the statutory provisions to which I have referred and if he could not how the appeal before the Court of Session in CSDLA/235/2013 has any materiality to the determination in this case.”

I also directed him to make a submission in respect of whether grounds for supersession had been made out.

4.	In his submission the Secretary of State said:

	“1.	In relation to the Claimant’s entitlement to the higher rate mobility component 	under the severe visual impairment provisions I concur with the analysis of Judge May.

	2.	It has been established that the Claimant does not meet the strict conditions of Regulation 12(1A) of the Social Security (Disability Living Allowance) Regulations 1991;

	“A person is to be taken to satisfy the conditions that he has a severe visual impairment if –

	(i)	he has visual acuity, with appropriate corrective lenses if necessary, of less than 3/60; or

	(ii)	he has visual acuity of 3/60 or more, but less than 6/60, with appropriate corrective lenses if necessary, a complete loss of peripheral visual field and a central visual field of more than 10º  in total.”

	The Claimant’s sight, measured on the Snellan Scale, is 6/9.  As the Tribunal state; “This is very significantly better than 3/60 and 6/60” (p203).  As such the Claimant does not satisfy the statute and cannot be entitled to an award of the higher rate mobility component on this ground. 

3.	That there is an appeal in a case involving a similar Claimant, CSDLA/235/2013, may be arguably have no bearing on the outcome of this case.  That appeal, from the Secretary of State, concerns whether Regulation 12(1A) is  ultra vires or not.  If the appeal is successful then Regulation 12(1A) will stand as law.  In this circumstance the Claimant would not succeed for the reasons as outlined in the paragraph above.  If the appeal is not successful,  and the Regulation is held to be ultra vires, this would not aid the Claimant either.  As such, as Judge May has explained, the Claimant cannot succeed (on the higher rate mobility component).”

5.	The claimant was given the opportunity of responding to that submission but has not done so. 

6.	I accept the Secretary of State’s submission.  It follows that there are accordingly no material grounds for superseding the claimant’s awarding decision and even if the tribunal were entitled to consider the merits of the higher rate of the mobility component upon a ground for supersession being established the claimant simply does not fall within the provisions setting out the condition for the award.   Accordingly no error in law is demonstrated on the part of the tribunal in respect of the higher rate of the mobility component.

7.	The Secretary of State does however support the appeal in relation to the highest rate of the care component.  He does so both in respect of supersession in paragraphs 14 and 15 and in respect of the merits as to whether the claimant satisfies the conditions for the highest rate of the care component in paragraphs 5 to 10.  

8.	The tribunal were not entitled to consider the merits as to whether the claimant satisfies the conditions for highest rate of the care component without first being satisfied  that a ground for supersession has been made out.  I am fully in agreement with what the Secretary of State says in paragraph 15 of his submission and on these grounds hold that the tribunal’s decision errs in law and must be set aside.  I also consider that if the grounds for supersession had been made out there is merit in what he says in paragraphs 5 to 9 for the reasons set out in the preceding paragraphs.   Accordingly I set the decision aside on these grounds also.  

9.	In giving directions to the freshly constituted tribunal I specifically direct them that in respect of the higher rate of the mobility component regulation 12(1A) the claimant on the facts cannot succeed.  In these circumstances the claimant would not be able to establish any relevant ground of supersession based on the mobility component.   It is for the claimant in respect of the care component to establish that there are grounds for supersession.  The tribunal will note what is said by the Secretary of State in paragraph 14 about the apparent absence of grounds to supersede.  It is in these circumstances important that the tribunal establish what grounds of supersession the claimant is relying on for the purposes of the care component.  It is only if the tribunal are satisfied that a ground of supersession has been made out that they can consider the merits as to whether or not he satisfies the conditions for the highest rate of care component.  The Secretary of State in paragraphs 5 to 7 and 10 and 11 raises questions on the merits which the tribunal may wish to explore.  The tribunal will also note that the night time conditions for the allowance are rigorous and the threshold for them is high.  

		(Signed)
		D J MAY QC
		Judge of the Upper Tribunal
		Date: 29 August 2014