DECISION OF SOCIAL SECURITY COMMISSIONER

1.	The decision of the Glasgow appeal tribunal (the tribunal) held on 7 August 2002 is wrong in law.  I set aside that decision and refer the case to a differently constituted tribunal for determination in accordance with directions below.

The legislative provisions

2.	The relevant statutory provisions are in s.73 of the Social Security Contributions and Benefits Act 1992 (the Act), the salient parts of which read:-

“73. – (1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of disability living allowance for any period in which he is over the relevant age and throughout which – 
……
(d)   he is able to walk but is 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.
…..
(8)   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.”

Concession

3.	At the outset of the oral hearing before me, Mr Brodie on behalf of the Secretary of State accepted that the tribunal applied the wrong approach to entitlement to the lower rate mobility component of disability living allowance (DLA), as set out in s.73(1)(d) of the Act.  This was because the tribunal in its statement observed that:-

	“…the appellant indicated in the course of his evidence that he did not like to go out alone”.

4.	Nothwithstanding, the tribunal concluded that the appellant was not entitled to an award of lower rate mobility component of disability living allowance (lower mobility) in any event because:-

	“…the appellant’s evidence was that he would not walk in unfamiliar places even if someone was with him.  Making an award would not, therefore, allow him to take advantage of the faculty of walking.”

5.	Mr Brodie submitted (and I agree) that the tribunal started at the wrong point.  For lower mobility, an adjudicating authority must ignore any ability to use familiar routes but may not ignore an inability to use such routes.  Therefore, the initial question is whether, on account of disablement, the appellant is unable to walk on familiar routes without guidance or supervision.  It is only if that question is answered in the negative, that the next step is to look at the appellant’s ability on unfamiliar routes.  The tribunal never properly considered whether the appellant satisfied the criteria for lower mobility by virtue of an inability to walk on familiar routes without guidance or supervision. If he did, it was necessarily irrelevant that he might not walk in unfamiliar places even if someone was with him.

6.	Before the tribunal, the appellant also put in contention his entitlement to higher rate mobility component and to middle rate care component.  It was the tribunal’s unanimous decision that the appellant was not entitled to an award of DLA at any rate of either component from the effective date.  These matters are now open again for determination by the new tribunal.

The main issue in dispute in this appeal

7.	In giving directions to the new tribunal on lower mobility, it is necessary to address the difference between Commissioners about whether a claimant to qualify must show that he is capable of walking out of doors if he is provided with guidance or supervision.  Standing the conflict in unreported decisions on the issue, a tribunal is not in error of law because it comes down, as it has to, on one side or the other.  However, it may assist the new tribunal on how to proceed in this appeal, although I cannot of course direct their approach in future cases raising the same dilemma.

8.	In CDLA/042/94, Mr Commissioner Mesher was considering the circumstances of a claimant which were found by a tribunal to be the following (see paragraph 4 of CDLA/042/94):-

	“[The claimant] cannot go out by herself and when accompanied she is still unable to take advantage of the presence of another person and because of her panic attacks she has to return home within a very short time.”

9.	At paragraph 15, Mr Commissioner Mesher said:-

	“The overall structure of the test in section 73(1)(d) is not entirely free from difficulty.  A claimant will fall squarely within it when she is unable most of the time to take advantage of the faculty of walking on unfamiliar routes out of doors without guidance or supervision from another person and is able to take advantage of that faculty with guidance or supervision.  However, I accept Mr Atkinson’s submission that it would be absurd if a claimant whose disablement was so severe that she 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 section 73(1)(d).  Because of the negative formulation of the provision, a claimant does not necessarily have to show an ability to take advantage of that faculty with guidance or supervision.  But section 73(1)(d) is manifestly not intended to assist a physically disabled claimant who is able to walk and is able to walk a sufficient distance at a sufficient speed in a sufficient manner not to be virtually unable to walk on the test provided by regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 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 her physical or mental disablement is such as could, in its general nature, be extended when guidance or supervision from another person is available.  With that qualification, a claimant fails within section 73(1)(d) when unable to take advantage of the faculty of walking even with guidance or supervision”.

10.	At paragraph 22(d), Mr Commissioner Mesher summarised the matter thus:-

	“The claimant meets the conditions of section 73(1)(d) if she is unable to take advantage of the faculty of walking even with guidance or supervision from another person, if the limits imposed on her ability by her physical or mental disablement are such as in their nature could be alleviated by guidance or supervision from another person.”

11.	Mr Commissioner Angus in CDLA/2364/95, at paragraphs 11 and 12, specifically disagreed with what was said by Mr Commissioner Mesher in the paragraphs quoted above.  The relevant passage from Mr Commissioner Angus’ decision is this:-

	“11. (1)     The object of the disability living allowance scheme is to provide disabled claimants with money which can be applied towards the expense of coping with the effects of their disablement.  In the case of the mobility component the benefit is paid at two rates.  The higher rate goes to claimants who satisfy the conditions for entitlement specified in paragraph (a) to (c) of subsection (1) of section 73 of the 1992 Act as read with regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991.  Those are people who are unable or virtually unable to walk out of doors by reason of physical disablement, those who by reason of the combined effects of blindness and deafness cannot reach any intended or required destination out of doors without the assistance of another person and those who by reason of defective development of the brain are, inter alia, so disruptive that they require constant watching over when awake and the frequent intervention of another person to prevent physical injury to themselves or others.  Clearly the beneficiaries envisaged are those with a high degree of disablement and dependence on others for any degree of mobility out of doors and whose needs will in many cases include, or be most conveniently met by, either private transport or frequent use of public transport.  In all cases the underlying cause of the restriction on mobility out of doors is physical.  The higher rate, is paid to those people by virtue of sub-section (11)(a) of section 73.

	(2)	On the other hand paragraph (d) of sub-section (1) as read with sub-section 11(6) (sic), provides for a lower rate for those who can walk but by reason of physical or mental disablement cannot make use out of doors of their ability to do so without  guidance or supervision from another person.  This differs from the higher rate provision in several ways.  The reference to guidance or supervision in sub-paragraph (d) is a reference to measures which can be expected to overcome or ameliorate the specified effects of the disablement whereas,  except in the case of regulation 12(3), the higher rate scheme makes no such reference: but the reference which is made in regulation 12(3) – assistance to walk to any intended or required destination out of doors – indicates a much greater  restriction on outdoor mobility than that envisaged by section 73(d) which need be no more than an inability to use unfamiliar routes.  The lower rate provision is for payment of benefit to those whose disablement is physical in origin whereas the higher rate provision is limited to those whose disablement has a physical origin.

	(3)	Therefore paragraph (a) to (c) on the one hand and paragraph (d) on the other provide for two distinct groups of people identified by both the cause of their disablement and the severity of its effect on their mobility.  The higher rate of benefit is for those suffering from severe disablement of a physical origin with a high degree of dependence for out of doors mobility on other people, on mechanical equipment or on both.  The lower rate is, for those who are either mentally or physically disabled but are restricted in their mobility only to the extent that although they can walk they cannot walk out of doors without guidance or supervision from another person.

	12.  (1)	    That being my understanding of the purpose and structure of the mobility component scheme, I disagree with what is said in paragraph 15 and 22(d) of CDLA/042/94…...  Despite the negative formulation of sub-paragraph (d) of section 23(1) (sic) I think that a claimant, to succeed in a claim under that provision, must establish that guidance or supervision from another person would overcome his inability to make use, out of doors, of the faculty of walking.  If, as CDLA/042/94 states, all that need be established is that the general nature of the limitations on the claimants ability is such that they could be alleviated by guidance or supervision, a claimant could be entitled to payment of benefit under section 73(1)(d) even although payment would never result in her being able to make use out of doors of her faculty of walking.  Moreover, in this claimant’s case and in similar cases sub-section (8) of section 73 would not preclude entitlement because any claimant who cannot go out of doors on foot but can travel by car can be said to be able to benefit from enhanced facilities for locomotion.  Therefore a claimant who did not qualify under section 73(1)(a) to (c) because the disablement was purely mental in origin or, although physical, was not of the qualifying degree of severity or of a qualifying category, could through sub-paragraph (d) obtain financial help towards the cost of a facility which under the section 73 scheme is appropriate only to those who come within the scope of sub-paragraphs (a) to (c).

	(2)	….
	….whether or not a person who avers a need for guidance or supervision when walking out of doors comes within the scope of section 73(1)(d) has to be decided by reference to the effect on the particular claimant of supervision or guidance and not by reference to the effect that supervision or guidance could be expected to have on any person who experiences limitations of the nature of those experienced by the claimant.”

12.	Each of these opposing viewpoints has its followers.  As decisions of single Commissioners are given equal weight each tribunal has the unenviable task of choosing between them and explaining its preference, which is unnecessarily burdensome.  Not surprisingly, the arguments put forward on behalf of the appellant in today’s appeal urge me to accept that the result in CDLA/042/94 is the correct one.  The Secretary of State, however, prefers the approach demonstrated in CDLA/2364/95.  It is very much to be hoped that a suitable case soon presents itself raising this issue of interpretation which a Tribunal of Commissioners may consider.  Then tribunals, advisers and claimants will know where they stand.  The current situation is invidious to all concerned, irrespective of the merits.

Oral hearing

13.	The case came before me for an oral hearing on 20 November 2003.  The appellant was represented by Mr Craig, a Welfare Rights Representative for Queen’s Cross Housing Association Limited, and the Secretary of State was represented by Mr Brodie, Advocate, instructed by Mrs Anderson, Solicitor, of the Office of the Solicitor to the Advocate General.  I am grateful to them both for their helpful submissions.

The arguments

On behalf of the appellant

14.	Mr Craig commended the approach of the Tribunal of Commissioners in R(DLA) 4/01 when, in its ultimate sentence of paragraph 15, it said:-

	“It is not necessary for the sensible interpretation of the wording for additional qualifications to be introduced.”

15.	Therefore, although Mr Craig endorsed the result of Mr Commissioner Mesher’s approach in CDLA/042/94, as one which allowed a claimant to qualify where disability was so severe that the said claimant could not walk out of doors even with guidance or supervision, Mr Craig disapproved of the suggestion that extending a person’s ability to walk by providing such help had any relevance.  This is a concept which is not in the legislation.  It is Mr Craig’s submission that on the plain words of s.73(1)(d), a benchmark is set.  If a claimant’s mobility is sufficiently limited so as only able to walk out of doors accompanied, clearly he or she qualifies for lower mobility.  But there is nothing on the face of the statutory text to preclude entitlement for one even more severely disabled, where guidance or supervision is irrelevant.  Mr Craig argues that it adds an unqualified gloss to require a claimant to demonstrate that guidance or supervision will enable him or her to take advantage of the faculty of walking.

16.	Mr Craig also points out (and I accept this, as indeed does Mr Brodie), that whichever approach is preferred, careful fact finding is required to establish the correct situation of the claimant.

On behalf of the Secretary of State

17.	Mr Brodie started with the premise of a claimant who, on account of disablement, could not walk out of doors (whether on familiar or unfamiliar routes or both), even if someone was with him, though could go out in a motor car.  Like Mr Craig, he too relied on the plain words of the statute but, in his case, it led to a preference for the reasoning of Mr Commissioner Angus in CDLA/2364/95.  

18.	In his submission, the only reading of s.73(1)(d) is that it requires, as a matter of fact, a claimant who is a person who is able to walk but who, because of disablement, is unable to do so out of doors unless he has guidance or supervision, although with such guidance or supervision he can use the faculty of walking.  Section 73(1)(d) provides a discrete test.  But this is one, whereby to qualify for lower mobility, the claimant must be able to take advantage of the faculty of walking with guidance or supervision.

19.	Mr Brodie respectfully disagreed with Mr Commissioner Mesher’s analysis at paragraph 15 of CDLA/042/94.  Mr Brodie submits that analysis is not helpful.  This is because Mr Commissioner Mesher excludes from qualification for lower mobility a claimant whose walking is limited by increasing pain or fatigue, whom he concludes is unable to rely on the point that guidance or supervision would provide no assistance in his particular circumstances, yet nevertheless allows an agoraphobic claimant who also would not be helped by guidance or supervision to qualify.  It is argued that this is inconsistent reasoning.

20.	Furthermore, Mr Brodie submits that Mr Commissioner Mesher’s analysis is rather difficult to understand.  The Commissioner seems to mean that, where the claimant’s disablement is one which, if it was suffered by other people within the population, is of a type that in most cases can be helped by guidance or supervision, then this claimant may still qualify even although in his or her case the condition is such that guidance and supervision does not help the claimant to walk out of doors.  This would appear to be an objective test.  However, the wording of s.73(1)(d) is subjective and refers to the circumstances of the particular claimant.

21.	It is said by Mr Brodie that Mr Commissioner Mesher’s reasoning is all the more surprising when (at the beginning of paragraph 16) the Commissioner points out that:-

	“The context for consideration of the meaning of guidance or supervision is thus the provision of something which may enable the claimant to take advantage of the faculty of walking.”

Yet the whole thrust of Mr Commissioner Mesher’s previous paragraphs is that a claimant may qualify even though the provision of such guidance or supervision makes no difference whatsoever in his or her case.

22.	Mr Brodie contends that the reasoning of Mr Commissioner Angus is correct.  The latter notes the dual nature of the mobility component (lower rate and higher rate) and points out that the higher rate criteria carry no reference to measures which can be expected to overcome the effects of the claimant’s disablement.  The lower rate, on the other hand, carries with it a reference to measures, “guidance and supervision”, which can be expected to overcome the effects of the disablement.  The mention of those measures means that the claimant must show that they would enable him to overcome his inability to walk out of doors.

23.	Mr Brodie further submits that, in the concluding part of paragraph 12(1), Mr Commissioner Angus is pointing out that the terms of section 73(8) would be subverted if section 73(1)(d) is given the meaning expounded by Mr Commissioner Mesher.  In CDLA/2650/2001, Mr Commissioner Jacobs expressly held (see paragraph 12) that:-

	“The decision in CDLA/2364/1995 is authority for the proposition that a claimant who will not walk over unfamiliar routes cannot qualify under section 73(1)(d) because of section 73(8).”

My conclusion and reasons

24.	I do not find the point at issue easy.  I have great sympathy with Mr Commissioner Mesher’s view.  It does seem perhaps “absurd” if a claimant whose disability is more severe than one who falls squarely within the terms of 73(1)(d) is excluded from the benefit of that section.  (Moreover, because the disablement is mental, such a claimant will be barred from either mobility rate.)  Furthermore, I consider the distinctions drawn by Mr Commissioner Angus between higher rate and lower mobility criteria are given more weight than they can truly bear for the purpose of his argument.  There is an acknowledged exception to the point made that the higher rate scheme makes no reference to measures expected to overcome or ameliorate the effects of the disablement; that lower mobility applies also to those with a mental disablement does not seem to assist in this context in determining the meaning of s.73(1)(d); the legislation constitutes two distinct groups but the severity of the effect of disablement on the mobility of members of each class is not consistent.  

25.	I do not consider that, at the end of paragraph 12(1) of CDLA/2364/95, Mr Commissioner Angus was doing anything other than underscore that section 73(8) is directed to a different point.  I am unable to accept Mr Commissioner Jacob’s view that Mr Commissioner Angus was interpreting section 73(1)(d) in the light of section 73(8).  In any event, I agree with Mr Commissioner Rowland in CDLA/2106/2002 (at paragraph 4) that section 73(8) prevents the frustration of the purpose of mobility awards:-

	“Only if the claimant cannot benefit from any enhanced facilities for locomotion does section 73(8) come into play”.

26.	On balance however, I prefer Commissioner Angus’ approach.  This is because I accept Mr Brodie’s submission that it is the one which best fits the statutory text.  Hard cases fall outside it, as Mr Commissioner Mesher demonstrates, but this cannot justify changing what the legislation actually says.  Contrary to what Mr Craig argues, Mr Commissioner Mesher’s result does require adding words.  It may be more rational but it is not an application of what the test states.  For such a meaning, the legislation would have to read:-

	“….he cannot take advantage of the faculty out of doors, either at all or without guidance or supervision from another person most of the time.”

27.	Moreover, with respect, Mr Commissioner Mesher’s analysis is suspect for the reasons put forward by Mr Brodie.  In order to exclude those who just miss out on entitlement to higher rate mobility from qualifying for the lower rate where their physical condition is not such as can be helped by guidance and supervision (unlike the claimant considered by Mr Commissioner Rowland in CDLA/2106/2002 who suffered from giddiness and difficulty in co-ordinating her crutches, a condition such that supervision or guidance could help her), Mr Commissioner Mesher is forced to use the unsatisfactory qualifying concept of a limit on the claimant’s walking ability imposed by physical or mental disablement which “in its general nature” could be extended when guidance or supervision from another person is available.  (Presumably, the extension relates to the walking ability rather than the limit on it, although the meaning is not easy to unpick.)  With respect, quite apart from the fact that this introduces an objective element to a test which, as Mr Brodie submits, is rather a subjective one, the test lacks sufficient specificity to be helpful.

Directions

28.	I therefore direct the new tribunal with respect to lower rate mobility as follows:-

(a)	First of all, it must determine whether, through disablement, the appellant is unable to walk on familiar routes without guidance or supervision, in which case he satisfies;

(b)	However, if the appellant does not qualify in this way, the tribunal must then ask if it is different if the routes are unfamiliar viz. is the appellant unable to walk on such routes without guidance or supervision?  If he is not so able, he satisfies.

29.	In each case, if the appellant is unable to walk out of doors even with guidance or supervision, then he does not succeed.  The claimant who is unable to take advantage of the faculty of walking out of doors even with guidance or supervision does not fall within the test as set out in s.73(1)(d).

Summary

30.	I reach this conclusion with reluctance, because it seems rational as Mr Commissioner Rowland states at paragraph 4 of CDLA/2106/2002 (but not in an identical context):-

	“Section 73(1)(d) merely provides a test to enable it to be determined whether a person’s practical mobility is sufficiently limited to justify financial help being provided.  No limit is placed on the type of enhanced facilities for locomotion that a claimant might use that help to obtain.”

31.	However, it is my view that the statutory wording does not encompass the relatively rare claimant who, while he or she could benefit from other forms of transport, through disablement will not walk out of doors even with guidance or supervision.  This is despite my sympathy for such a claimant’s predicament.

						(Signed)
						L T PARKER
						Commissioner
						Date:  24 November 2003