[2007] UKSSCSC CDLA_2470_2006 (19 July 2007)

CDLA/2470/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	This appeal is unsuccessful.  I set aside the decision of the Kettering appeal tribunal dated 4 Aril 2006 but I substitute a decision to the same effect as the tribunal’s.  The claimant is entitled to the lower rate of the mobility component and the highest rate of the care component of disability living allowance from 21 July 2005 for an indefinite period.

	REASONS

2.	The claimant was born on 18 October 1989.  He suffers from Down’s Syndrome, asthma and various other conditions.  He is clearly severely disabled.

3.	On 13 May 2005, a renewal claim was received for disability living allowance was received from the claimant’s mother on his behalf.  The claimant had been entitled to the middle rate of the care component of disability living allowance since 6 April 1992, when disability living allowance was first introduced.  He had also been entitled to the lower rate of the mobility component since reaching the age of 5 in 1994.  On the renewal claim, he was once again awarded the lower rate of the mobility component and the middle rate of the care component but this time for an indefinite period from 18 October 2005.  That decision was made on 25 June 2005.  On 21 July 2005, the claimant applied for a supersession but, on 29 September 2005, the Secretary of State declined to supersede the award and that decision was not changed on an application for revision.  The claimant appealed.  The tribunal allowed the appeal to the extent of awarding the highest rate of the care component.  Initially it made its decision effective from 18 October 2005.  This is not surprising because it had been told nothing about the award in force before then.  However, the chairman acceded to a request from the Secretary of State to amend the tribunal’s decision so as to make it effective from 21 July 2005.   The reason for the request has been clarified in a helpful submission by the Secretary of State’s current representative in response to a direction I issued asking for details of the awards made before 18 October 2005.  (In issuing my direction, I had, in fact, overlooked the correction altogether.)  The application for supersession dated 21 July 2005 had to be treated as an application for supersession of both the award on the renewal claim and the award subsisting on the date it was made.  There being no question of the claimant’s condition having changed in the three months before the application was made, the tribunal’s supersession decision was therefore effective from 21 July 2005.  (As the decision-maker’s award on the renewal claim was the same as the award on the subsisting claim and was not altered following the application for supersession, it is understandable that the refusal to supersede had not referred to the earlier award, although perhaps technically it should have done.  However, the submission to the tribunal should have informed the tribunal of the award in existence at the time the renewal claim was made.)  The claimant now appeals against the tribunal’s decision with my leave.  He seeks the higher rate of the mobility component.

4.	The Secretary of State concedes that the tribunal’s decision is erroneous in point of law.  His submission to the tribunal had neglected to deal with the mobility component and, indeed, it might have been arguable that entitlement to that component was not raised by the appeal.  However, the tribunal expressly made a finding that he claimant was not entitled to the higher rate of the mobility component without having explored the issue by asking relevant questions.  I accept that the tribunal’s decision is erroneous in point of law on that ground.  I held an oral hearing of the application for leave and I have received written evidence and I can give my own decision in place of the tribunal’s decision.

5.	There is no doubt that the claimant requires an immense amount of looking after.  He is unpredictable and has a limited understanding of the consequences of his actions, graphically illustrated in the papers before me by a newspaper news item recounting how his family had been woken up one morning to find that he had started a fire in the bathroom and was hiding in his bedroom.  However, in general terms, the needs that a person has for attention, supervision and guidance are met through the care component and the lower rate of the mobility component.  It is apparent from a comparison of the conditions of entitlement to the care component and the lower rate of the mobility component with the conditions for entitlement to higher rate of the mobility component and from a consideration of the reasons for the difference in the two rates of the mobility component that the purpose of the higher rate of the mobility component is primarily to meet the cost of transport rather than the cost of supervision, although there may be cases where the intention is to meet both needs.

6.	In any event, the criteria that must be satisfied for entitlement to the higher rate of the mobility component are fairly stringent.  Only two of the possible grounds for entitlement to the higher rate of the mobility component are relevant in this case.  The first calls for consideration of the question whether the claimant was virtually unable to walk at the time of the Secretary of State’s decision (see section 73(1)(a) of the Social Security Contributions and Benefits Act 1992) and the second calls for consideration of whether he was severely mentally impaired and displayed severe behavioural problems (see section 73(1)(c) and (3)).

7.	For the purpose of considering whether a person is virtually unable to walk, regard must be had to the limitations on his ability to walk out of doors “as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot” (see regulation 12(1)(a)(ii) of the Social Security (Disability living Allowance) Regulations 1991 (S.I. 1991/2890)).  The tribunal found, and with one qualification it is not seriously disputed, that the claimant could walk 500 yards or metres in ten minutes before feeling severe discomfort, caused by his asthma.  It found that his asthma was controlled by the use of inhalers.  The claimant’s mother says that he does not use his inhalers appropriately, but assistance with that falls within the scope of the care component.  The dispute arises because the claimant’s mother says that “he has to stop all the way” so that walking 500 yards or metres would take 25 minutes.  She supports this with a letter from a community paediatrician who says –

“When out with his mother he will suddenly sit down and refuse to walk any further and being a large individual is difficult to shift.  He is very stubborn and this makes it very difficult for his mother to take him out.”

A clinical psychologist, however, suggests that he sits down only after walking 500 yards, but I am prepared to accept that that is a misunderstanding and that there are occasions when he sits down well before that.

8.	Obviously, the claimant needs supervision whenever out walking and that entitles him to the lower rate of the mobility component.  I am prepared to accept that repeated refusals to walk can be relevant when considering the time taken to walk any distance and the manner of walking so that, in an extreme case, a person might still, at least in theory, be found to be virtually unable to walk due to such refusals, as was the case before mobility allowance was replaced by the mobility component of disability living allowance (see R(M) 3/86).  However, it has to be borne in mind that, when considering physical restrictions on mobility, a person is not usually regarded as virtually unable to walk if he can walk 100 yards before stopping and then can continue after a pause.  I accept that, because of his unpredictability, there is always a possibility that the claimant in this case will refuse to walk when he goes out, but I am not satisfied that in fact he usually does refuse to walk and, in particular, that he refuses to do so when such short distances as one or two hundred yards are involved except, perhaps, occasionally.  The claimant’s mother did suggest to me that he refused every time he went for a walk but that seems inconsistent with the evidence that, for substantial periods of time, he is reasonably well behaved.  There is no particular reason why the claimant’s behaviour should be very much worse when walking as opposed to other performing activities until his asthma creates discomfort, which is at too great a distance for the claimant to qualify as being virtually unable to walk.

9.	Turning to the question whether the claimant is severely mentally impaired and displays severe behavioural problems, I have no doubt that the first of those conditions is satisfied, despite the lack of detailed medical evidence specifically addressed to the criteria set out in regulation 12(5) of the 1991 Regulations.  The diagnosis of Down’s Syndrome and the description of the claimant’s behaviour is adequate evidence in this case.  The question whether the claimant displays severe behavioural problems is more problematic.  Regulation 12(6) provides –

“A person falls within subsection 12(3) of section 73 of the Act (severe behavioural problems) if he exhibits disruptive behaviour which –
    (a)	is extreme,
    (b)	regularly requires another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or damage to property, and
    (c)	is so unpredictable that he requires another person to be present and watching over him whenever he is awake.”

10.	It was held in R(DLA) 7/02 that this paragraph requires consideration of the claimant’s behaviour “at home just as much as outside it”.  I respectfully agree, not least because there is usually no good reason why a claimant’s behaviour when walking outdoors should be markedly different in degree from his or her overall behaviour and looking at the whole picture is likely to give a better idea of the degree of intervention really required on account of the severe mental impairment as opposed to other factors.  (Although there is no explicit provision to the effect that the severe behavioural problems must stem from the severe mental impairment, it seems to me that that is implicit in the legislation.)

11.	It is convenient to look at the three subparagraphs of regulation 12(6) in reverse order.  I am inclined to accept the submission made by the claimant’s parents that he fell within the scope of regulation 12(6)(c).  It is true that, as the Secretary of State points out, the claimant is allowed to do some things by himself at home, but it is also clear that his parents are in a permanent state of apprehension as to what will he will do whenever he is out of sight.  I am not convinced that the very strict approach taken to regulation 12(6)(c) by the tribunal with whose decision the Commissioner declined to interfere in R(DLA) 9/02 is not liable to deprive section 12(3) of the Act of any practical effect.

12.	Turning to regulation 12(6)(b), there is evidence that the claimant does, on occasions, behave aggressively and there is also evidence that he behaves recklessly and I am quite prepared to accept that he sometimes needs physical restraint on both accounts.  The word “regularly” is capable of having a variety of meanings.  It can mean the same as “frequently” and even then it is all a matter of degree.  A weekly occurrence can be regular in some contexts.  I can well understand why the claimant’s parents argue that he falls within the scope of regulation 12(6)(b) if that is read in isolation.

13.	However, regulation 12(6)(b) has to be read with regulation 12(6)(a) and in the context of the whole scheme of entitlement to the mobility component.  It might be argued that regulation 12(6)(a) does not add a great deal to the other subparagraphs and that the legislation should be read as though it said “is so extreme that it regularly requires …”.  On the other hand, more substance is accorded to subparagraph (a) if the word “extreme” is taken to indicate that the behaviour is of a type that regularly requires a substantial degree of intervention and physical restraint – i.e., something much more than merely taking the person by the arm – and that is the construction I prefer.  More importantly, it seems to me that the existence of the right to the higher rate of the mobility component under section 12(3) of the 1992 Act makes sense only if such a degree of intervention and restraint is likely to be required on a significant proportion of occasions when the claimant walks moderate distances outdoors.  In my judgment, the word “regularly” in regulation 12(6)(b) must be understood in that sense.  (Here, the position is also complicated by the fact that the claimant’s mobility is limited by his asthma.  It seems to me to follow from R(DLA) 7/02 that the fact that the claimant’s behaviour may be worse when walking because of the discomfort caused by his asthma must be ignored for the purposes of regulation 12(6) or at least be regarded as something to be taken into account only in considering the extent of his behavioural problems over the whole day.)

14.	As I have already said, the evidence in this case is that there are substantial periods of each day when the claimant is quite well behaved.  Moreover, even when he is not, he often does not require physical restraint and, when he sits down and refuses to walk, the intervention required to get him to move may be the opposite of “restraint” and will not necessarily be required “to prevent him causing physical injury to himself or another, or damage to property”.  There is really no evidence that his behaviour is generally or regularly “extreme” and I am very doubtful that he even falls within the scope of regulation 12(6)(b).  The occasions when he actually requires physical restraint to avoid injury or damage are probably not sufficiently frequent for that to be regarded as a regular requirement but the occasions when his behaviour is “extreme” are fortunately even rarer, notwithstanding that eternal vigilance is required and caring for the claimant must be very wearing for his parents.  

15.	Accordingly, I am satisfied that the claimant is not entitled to the higher rate of the mobility component.  I reach this conclusion with some regret but ultimately the needs of the claimant are predominately for attention and supervision and those are not relevant to the higher rate of the mobility component save in truly exceptional cases.

	(signed on the original)	MARK ROWLAND
		Commissioner
		19 July 2007