CDLA/2377/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Workington appeal tribunal dated 4 February 2002 and I substitute a decision that the claimant is entitled to the lower rate of the mobility component and the lowest rate of the care component of disability living allowance from 9 August 2001 to 8 August 2004.  Benefit paid in consequence of the tribunal’s decision must be treated as having been paid on account of this decision.

REASONS

2.	The claimant, who suffers from epilepsy, was awarded the lower rate of the mobility component and the middle rate of the care component from 6 December 1997 to 5 December 1999 and, on a renewal claim, a further award was made from 6 December 1999 to 5 December 2001.  However, when the claimant made a further renewal claim in July 2001, in anticipation of the expiry of her existing award, the Secretary of State not only declined to make a further award but also superseded the existing award with immediate effect from the date of the decision on 9 August 2001.  The claimant appealed.  The tribunal awarded the lowest rate of the care component but decided that the claimant was not entitled to the mobility component.  The claimant now appeals with the leave of a full-time tribunal chairman and the support of the Secretary of State.  Her representative, Mr Michael Plant of Whitehaven Citizens Advice Bureau, does not dispute the tribunal’s finding that the claimant’s condition had improved since the award made in 1999 and that she was entitled only to the lowest rate of the care component, but he seeks on her behalf the lower rate of the mobility component as well.

3.	The tribunal’s reasons for not awarding the mobility component were –

“She is not virtually unable to walk.  She is able to travel on the bus locally and goes to town on her own although she is reluctant to travel on her own to unfamiliar places because of her fear of having a fit.

“However the frequency of day-time fits is so uncommon that although she is reassured by the presence of another person when out of doors she is not unable to take advantage of the faculty of walking without guidance or supervision of another person whether on familiar or unfamiliar routes.”

4.	It is common ground, and I accept, that the tribunal did not really address the point made to them by the claimant’s representative.  In a written submission that was before the tribunal, it was said:

“[The claimant] does have great difficulty with walking outdoors, not because of the ongoing risk of fits (upon which a previous lower rate of mobility was awarded), but because of her extremely anxious state which has developed as a result of a lifetime of living with epilepsy.  [The claimant] requires the guidance and supervision of either of her parents on most occasions when she is in unfamiliar environments.  She is completely unable to manage in a strange environment.  [The claimant] is a very nervous individual, and states that if she were to find herself in a strange place she would undoubtedly become panicky and this could in turn trigger a fit.  [The claimant] has endeavoured to use public transport in the past but this has resulted in her becoming very nervous and panicky.”

The tribunal have not clearly indicated whether they accepted that as an accurate statement of the claimant’s difficulties.  If they did not, they have not explained why.  If they did, their finding that the claimant is “reassured” by having someone with her seems a little inadequate.  It seems to me that, if the claimant’s evidence is accepted, she requires supervision within the terms of section 73(1)(d) of the Social Security Contributions and Benefits Act 1992 when in an unfamiliar place in case she has a fit and the fact that the supervision may prevent the fit from occurring at all, because it reduces the level of anxiety, does not make what that person is doing anything less than supervision.  It is not just the company that the claimant requires but the knowledge that someone is keeping an eye on her.  As the claimant’s representative argues, one can hardly rely on the lack of fits as an argument for denying the requirement for supervision if the reason that there are no fits is that either supervision is provided or else the claimant avoids unfamiliar routes.  The question that needs to be asked is what would happen if the claimant went along unfamiliar routes without being supervised.  This situation has some similarity with the position when a potential suicide’s requirement for supervision is being considered.

5.	Mr Steele, on behalf of the Secretary of State, has made a clear and well-reasoned submission accepting the evidence presented on behalf of the claimant.  This means that it is unnecessary for me to refer the case to another tribunal.  With the consent of both representatives, I give the decision set out in paragraph 1 above.

	(Signed)	MARK ROWLAND
		Commissioner
		4 March 2003