[2005] UKSSCSC CDLA_3831_2004 (07 February 2005)
CDLA/3831/2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I find that the decision of the appeal tribunal (“the tribunal”), given on 1 September 2004 (under registration number U/06/071/2004/01036) erred in point of law.  I allow the claimant’s appeal.  Under section 14(8)(b) of the Social Security Act 1998, I set aside the decision of the tribunal and remit the case for rehearing by a differently constituted tribunal.

2.	The claimant is a woman born on 2 June 1944.  She has animal phobia with panic attacks, hypersensitivity and irritable bowel syndrome.  She was awarded the lower rate of the mobility component of disability living allowance from 8 April 2004 to 7 April 2006.  She submitted a renewal claim for both components of disability living allowance and on 31 December 2003 was again awarded the lower rate of the mobility component from 8 April 2004 to 7 April 2006.  Again, no award was made of the care component.  

3.	On 2 April 2004 the Department for Work and Pensions sought a report on the claimant from her general practitioner.  That report was completed on 7 April 2004 and confirmed the diagnosis of the claimant’s disabling conditions, together with “ECG changes”.  It stated that the claimant’s hypertension was not yet fully controlled but was moderate.  The phobia and panic attacks were basically controlled and “moderate to severe”.  The doctor stated that the claimant appeared to be able to self care, had insight and awareness of danger and “normal” ability to get around. 

4.	On 16 April 2004, the decision maker superseded the decision of 16 November 2003, and the claimant was not entitled to either component from that date. The reasons given were that the general practitioner’s report showed that the claimant had insight and awareness and could get around normally and could self care.  The claimant herself had stated she could cook a meal most days.  At the claimant’s request, the decision was reconsidered but not revised and the claimant appealed.

5.	The tribunal met on 1 September 2004, the claimant being present and represented.  The representative confirmed that the claimant was seeking only the lower rate of the mobility component.  The tribunal unanimously refused the claimant’s appeal.  

6.	The claimant appealed with the leave of the chairman, on the grounds that it was put to the tribunal by the presenting officer that anxiety had to be a severe mental disability within the terms of section 72 of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”).  The tribunal had stated at paragraph 5 in its statement of reasons that the claimant’s condition of anxiety does not, in its judgment, contribute (sic, which is probably have been intended to read “constitute”) a severe mental disability which would satisfy the criteria for an award of lower mobility.  It was submitted on behalf of the claimant that this interpretation severs the language of section 72 of the 1992 Act in a way that was not intended, citing in support R(DLA)10/2002, where Mrs Commissioner Parker held that:

	“There is no free standing need for a severe disablement.  There has to be a physical or mental disablement resulting in care requirements fitting the statutory criteria.  But if such needs exist, and are so caused, this is sufficient.  From the wording of the phrase, the severity of the disablement determined by reference to the care needs which arise and is not to be considered by reference to the general nature of that disablement divorced from its actual consequences with respect to the claimant’s need for attendance.”

Although that decision related to section 72 of the 1992 Act, it is the claimant’s submission that the same reasoning applies to section 73(1)(d) given that that section is framed in an almost identical way to section 72.  In issuing directions, I observed that grounds of appeal may not have taken into account paragraphs 12(7) and (8) of the Social Security (Disability Living Allowance) Regulations 1991 (“the 1991 Regulations”).  

7.	The Secretary of State’s representative does not support the appeal.  He submits that the tribunal noted that “the claimant’s nervous condition, described as phobia and panic attacks [were] controlled although moderate to severe”.  He concludes that the tribunal, having explained that whilst it did not doubt the claimant preferred to be accompanied out of doors she was not so severely disabled mentally that she needed guidance and support from another person most of the time, her anxiety did not constitute a severe mental disability which would satisfy the criteria for an award of the lower rate of mobility.  It adequately explained, within the requirements of the 1991 Regulations, why it had found that the claimant was not entitled to the lower rate of mobility component and no error in law was revealed.

8.	The claimant’s representative has responded, reinforcing his submission, stating:

	“3.	If from its findings of fact the tribunal had progressed in a logical fashion to say that [the claimant] is not so severely disabled mentally and that therefore her anxiety does not constitute a severe mental disability which would satisfy the criteria for an award of the lower rate mobility [component], then that would be a different matter. If that were the case we would consider that the tribunal did not err in law.  

4.	However, the tribunal did not say that, nor, we submit, did it intend to say that, but just explained itself clumsily.  We stand by our original argument when applying for leave to appeal…

5.	Finally, in drawing attention to regulations 12(7) and 12(8) of the [1991 Regulations] we submit that the Secretary of State has not advanced his main argument.  Paragraphs 7 and 8 of regulation 12 were introduced following the decision in R(DLA)4/01 to negative the effect of allowing people who[se] fear or anxiety of going out unaccompanied in unfamiliar places was due to the effect of a non-mental disability (e.g. pre lingual deafness) from qualifying for the lower rate of the mobility component.  It therefore does not alter the basic test outlined in section 73 of the [1992] Act nor alter the dicta laid down in R(DLA)10/02.”

9.	The wording of section 72(1) is that:

“A person shall be entitled to the care component for Disability Living Allowance for any period throughout which –

(a)	he is so severely disabled physically or mentally that…he requires.”

The wording in section 73(1) is “a person shall be entitled to 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.”

The reference in both sections to a claimant being “so severely disabled physically or mentally that he requires/cannot” is therefore identical.

10.	The wording of Regulation 12(7) and (8) is:

“(7) For the purposes of section 73(1) of the [1992] Act, a person able to walk is to be taken not to satisfy the condition of being so severely disabled physically or mentally that he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time if he does not take advantage of the faculty in such circumstances because of fear or anxiety.

(8) Paragraph (7) shall not apply where the fear or anxiety is:
(a)	a symptom of a mental disability; and
(b)	so severe as to prevent the person from taking advantage of the faculty in such circumstances”.

This makes it clear that it is the severity of the anxiety which is for consideration, once the existence of a mental condition is established, not the severity of the mental condition.

11.	 I accept the arguments cogently put by the claimant’s representative, although the decision in R(DLA) 10/02 being a case on the care component, may not have been foremost in the tribunal’s consideration.  Following paragraph 29 of R(DLA)10/02, on which the Secretary of State did not comment, the severity of the disablement is determined by the claimant’s needs which arise, not by reference to the general nature of the disablement.  The tribunal did refer to “a severe mental disability which would satisfy the criteria”; it “noted” the claimant’s nervous condition “described as phobia and panic attacks – controlled – moderate to severe”.  It  “accepted” that she had panic attacks out of doors; it appears to have accepted that “if out of doors she needs to be taken home” (my emboldening).  It did not refer to paragraphs 12(7) or 12(8) of the 1991 Regulations, and in my judgment it did not apply the correct test or explain the reasons its conclusion sufficiently clearly.  It made no comment on the claimant’s doctor’s statement that the claimant’s phobia and panic attacks were “moderate to severe” although “controlled”.  I suggest that the new tribunal which rehears the case may wish to make further enquiry as to what this means, and the claimant may care to assist by obtaining such further medical evidence as she can from her general practitioner.  Any such report should relate to her condition at 16 April 2004 and not at the dates the report is given.  

12.	It is thus for the tribunal to decide whether in connection with the lower rate of the mobility component, the claimant may obtain the benefit of the proviso in paragraph 12(8) of the 1991 Regulations, taking into account paragraph 29 of R(DLA)10/02.

13.	The new tribunal must conduct a complete rehearing of the issues that arise for decision on both components of disability living allowance, subject to the claimant making the same concession as previously.  It must make, and record, full findings of fact on all necessary points, with reasons for its acceptance for the evidence which is preferred, taking note of my comments above. 

14.	It must not take account of circumstances which did not obtain at the date of the decision appealed against, but must take account of any evidence which came into existence after that date, but which relates to the circumstances as at that date.  I have already commented on additional medical evidence at paragraph 11 above.

15.	The claimant will bear in mind that my decision is limited to matters of law; the new tribunal will make its decision on the evidence before it and the outcome may not be different or more helpful to her.  

16.	For the reasons stated, the claimant’s appeal succeeds; my decision is set out in paragraph 1, and my guidance in paragraphs 11 to 15 above.

	(Signed)	E A Jupp
		Commissioner
	
	(Date)	7 February 2005