[2008] UKSSCSC CDLA_3839_2007 (08 May 2008) 

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is given under section 14(8)(b) of the Social Security Act 1998:
I SET ASIDE the decision of the Derby appeal tribunal, held on 24 August 2007 under reference 034/07/01139, because it is erroneous in point of law.
I REMIT the case to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration. 
In particular, the tribunal must investigate and determine the claimant’s entitlement to a disability living allowance on the 'renewal' claim for an allowance, specifically the mobility component at the higher rate. 
In doing so, the tribunal must follow my analysis of the law. It must also not take account of circumstances that were not obtaining at the time of the decision under appeal, which was made on 28 March 2007: see section 12(8)(b) of the Social Security Act 1998, as interpreted by the Tribunal of Commissioners in R(DLA) 4/05. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01. 

REASONS
The issue
2.	This case concerns the mobility component of disability living allowance at the higher rate in respect of a claimant who sometimes needs to be directed and sometimes refuses to walk.
The adjudication history 
3.	The claimant was born on 12 January 1996. He was in receipt of an award of disability living allowance consisting of the mobility component at the lower rate and the care component at the highest rate when a 'renewal' claim was submitted on his behalf. On renewal, the Secretary of State awarded a disability living allowance consisting of the mobility component at the lower rate and the care component at the middle rate for the inclusive period from 12 July 2007 to 11 January 2012.
4.	On appeal, his representative argued only for the mobility component to be increased to the higher rate. The claimant has autism, severe learning disabilities and epilepsy. However, the argument for the increase in the rate of the mobility component was based solely on autism. The tribunal dismissed the appeal, confirming the Secretary of State’s award. I gave the claimant leave to appeal. 
The legislation
5.	Disability living allowance is governed by section 71 of the Social Security Contributions and Benefits Act 1992.
6.	Section 73(1) of that Act provides for entitlement to the mobility component if the claimant
‘(a)	is suffering from physical disablement such that he is either unable to walk or virtually unable to do so;
…
(d)	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.’
(a) is payable at the higher rate and (d) at the lower rate. 
7.	The Secretary of State awarded the mobility component at the lower rate and this was confirmed by the appeal tribunal. The issue on this appeal concerns the mobility component at the higher rate.
8.	Section 73(5) authorises regulations to prescribe ‘circumstances … in which a person is to be taken to satisfy or not to satisfy a condition mentioned in subsection (1)(a)’. Regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 is made under that authority. It provides:
	‘(1)	A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) of the Act (unable or virtually unable to walk) only in the following circumstances-
‘(a)	his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to place of, or nature of, employment-
(i)	he is unable to walk; or
(ii)	his ability to walk out of doors is so limited, 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 without severe discomfort, that he is virtually unable to walk; or
(iii)	the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health’.
In this case, (ii) is relevant.
9.	For all practical purposes, the mobility component at the higher rate is the same as the mobility allowance on which it was based. This is relevant, because most of the relevant authorities concern the mobility allowance.
The evidence
10.	The claimant has autism. It is not in dispute that this is a physical condition. 
11.	The relevant evidence from the 'renewal' claim read:
‘[The claimant] has no concept of danger and needs to be constantly supervised outside. An adult has to link arms firmly with him – holding hands is not sufficient as he will just pull away. A wrist strap is also used. He is safest with 2 adults.
‘[He] will also climb over the garden fence. He has escaped from the house several times with no understanding of where he is going or the dangers involved.’
This was supported by a statement from the head of a Centre for Autism.
12.	There was also evidence provided through the representative’s written submission to the tribunal. The relevant passages read:
‘[He] loves to go to the park. He therefore does not become obstructive when visiting these places, but refuses to leave when its time to go. Getting him to leave is extremely difficult.
‘While he can be happy and cooperative about visiting places he likes, if his parents have to take him to any shops he will simply refuse to move.’
This last statement was supported by two detailed examples of recent visits, to MFI and to a shop, and was confirmed by oral evidence at the hearing. The MFI incident reported by the representative involved the claimant first refusing to enter the store and then, when he was persuaded to do so, leaving immediately. The oral evidence given by the claimant’s father related to the same store and involved the claimant refusing to leave and walking round and round the store.
The tribunal’s reasoning
13.	The relevant passages in the tribunal’s reasons are:
‘We found that [the claimant’s] refusal to leave MFI on the occasion described by his father was not the result of his autism but rather the result of his desire to say in MFI, which he was enjoying. … it is clear that [he] did not want to leave MFI and was walking round and round. He was not virtually to walk due to his autism but was exercising his choice, namely to remain in MFI where he could walk around. 
‘We found that the problem, for most of the time, in supervising [the claimant] involved restraining him from running away rather than persuading him to walk, he is very fast when he runs off and the family have a fenced area in the garden in order to prevent him from running away.
‘There are occasions, though we did not consider this to be most of the time, when it would be difficult to persuade [him] to move and this is probably due to his autism.
‘We considered that the problems are to do with a difference of opinion between [the claimant] and his parents as to where he should and should not go. He does not sit down in one place and refuse to budge. For example, in the incident referred to in the [representative’s submission], [he] was persuaded to go into MFI, despite his initial refusal but, having got inside, he came straight out again.
‘[His] autism does not render him incapable of deciding where he wants to go and where he does not want to go. … In leaving the MFI store [as recounted in the representative’s submission], he was not refusing to walk; on the contrary, he walked out of the store. On the occasion referred to in the oral evidence, [he] demonstrated his unwillingness to leave the store by walking around.
‘The Tribunal accepted that a person such as [the claimant], who cannot be persuaded to walk in a desired direction, might be regarded as virtually unable to walk, but this would depend on the evidence on a case by case basis. We also accepted that a refusal to walk that was frequent, sustained and not easily overcome could constitute an inability to walk. [His] situation raised interesting issues of law requiring careful analysis, but we concluded, after consideration of the authorities and the evidence, that [he] did not satisfy the test for being unable or virtually unable to walk for most of the time. The fact that he suffered from autism did not mean that he could not, on occasions, exercise his choice as to where he wished to go and where he did not wish to go.’
The grounds of appeal
14.	The claimant’s representative provided a detailed criticism of the tribunal’s reasoning. In essence, his points were:
•	The tribunal had apparently concentrated on the MFI incident. It had failed to take account of the length of time it took the claimant to walk a particular distance and the effort needed to persuade him. The tribunal failed to explain why this sort of incident did not happen most of the time.
•	The evidence showed that the claimant needed physical control to guide him. The tribunal failed to explain why the claimant’s refusal to walk was just the exercise of choice.
•	The tribunal failed to explain adequately how it had weighed all the evidence.
•	The claimant was not able to walk meaningfully between two points.
•	If the tribunal was concerned that the claimant was exercising choice, this should have been raised at the hearing. 
The observations on the appeal
15.	The Secretary of State’s representative did not support the appeal. He referred to the state of the case law and the evidence before the tribunal, before submitting that it was entitled to reach the conclusions that it did.
16.	The claimant’s representative has made a detailed submission in response, arguing that this was not just a case in which there was a battle of wills between parents and a recalcitrant teenager, but rather a case in which physical restraint was needed to prevent aimless walking.
Analysis of the authorities
17.	There are two aspects to the difficulties that the claimant manifests in respect of walking: (i) he may not be able to control the direction of his walking; and (ii) he may refuse to walk.
18.	As to (i), this is outside the scope of the mobility component at the higher rate. It was at first taken into account – by the Commissioner in R(M) 2/81 and by a Tribunal of Commissioners in R(M) 1/83 – but was inconsistent with the reasoning of the House of Lords in Lees v Secretary of State for the Social Services [1985] AC 930, as decided by the Tribunal of Commissioners in R(M) 3/86 at paragraph 6.
19.	As to (ii), this may be within the scope of the mobility component at the higher rate. It has been discussed in a number of cases. 
20.	In R(M) 2/78, the medical appeal tribunal found of the claimant that ‘while he walks for some yards he is liable to run, stop, lie down or refuse to go further; this reaction which seriously impairs mobility is directly due to the physical condition’. The tribunal concluded that the claimant was unable to walk or virtually unable to walk. Chief Commissioner Temple dismissed the Secretary of State’s appeal. He said:
‘17.	The medical appeal tribunal recorded a decision and a finding in terms that Robert was unable to walk or virtually unable to do so because of physical disablement, the condition from which he suffered being a physical disorder. They found that physical condition was directly responsible for “reaction” which seriously impaired his mobility. No doubt it was open to the medical appeal tribunal to have decided that what effectively prevented Robert from exercising any physical ability to walk was attributable to a mental state, stemming from but operating independently of any disabling physical condition. They did not do so. In so far as there was any mental element which prevented Robert from walking (he has an accepted mental age of 2 years) they attributed his virtual inability, not to conscious volition or mental disability, but to “reaction” itself directly due to his physical condition. I read their decision as concluding that a physical factor was present throughout in the causation of his inability to walk.’
21.	In that passage, the Chief Commissioner envisaged three possibilities. One was (a) that the restriction on the claimant’s walking was a consequence of his physical condition – ‘reaction’ as the tribunal had called it. The other was that it was a consequence of the claimant’s mental state. This divided into two possibilities: (b) that it was a consequence of the claimant’s mental disability; and (c) that it was an act of conscious volition.
22.	It is important to appreciate this because of a later discussion by a Tribunal of Commissioners in R(M) 3/86. The claimant had sustained brain damage at birth. The medical appeal tribunal found that ‘he is perfectly capable of carrying out the physical movements of walking and, indeed, running, but his behavioural problems are such that for substantial periods of time his behaviour is entirely erratic and unpredictable. Sometimes he will walk or run so that he has to be physically restrained and on other occasions he will simply refuse to move.’ However, the Consultants who formed the majority of the tribunal found that ‘one must disregard the behavioural problems, albeit resulting from the physical disability’. The Tribunal allowed the appeal and directed a rehearing. The Commissioners, having noted that control over the direction of walking was not relevant, accepted the continuing authority of R(M) 2/78.
23.	Paragraph 8 of their decision has caused some misunderstanding. The paragraph began with the argument by counsel for the Secretary of State, which concluded:
‘The criterion was whether the claimant could not walk, as distinct from would not walk.’
The Commissioners then said:
‘We agree with the importance of that distinction. Manifestly, if a child, who has been walking perfectly satisfactorily decides to stop, but his refusal to continue further can be overcome by the promise of a reward or the threat of punishment there can be no question of his stopping having arisen out of a physical condition over which he has no control. In the case postulated, he was making a conscious choice, and on no footing could his refusal to walk be identified with a physical disablement. It is, of course, for the tribunal as a medical matter to determine whether a child’s propensity to cease walking is to be attributed to a deliberate election on his part or to a physical disablement.’
24.	I do not read that passage as qualifying R(M) 2/78, which the Tribunal had approved. Nor do I read it as saying that there are only two possibilities: conscious choice or physical disablement. What the tribunal did was to give an example of a child whose refusal to walk could be overcome by a bribe or threat. It said that in this example (‘the case postulated’) the child was making a conscious choice. It was merely working out a particular example, not setting out a comprehensive statement of the law. Moreover, as an example it does not limit or define the distinction between a claimant who cannot walk and one who will not walk. That distinction must be read in the context of the three-fold distinction drawn by the Chief Commissioner in R(M) 3/78.
25.	R(M) 3/86 was discussed by Chief Commissioner Bromley in CM/005/1986. The claimant had autism and the medical appeal tribunal went wrong by failing to consider the reason why he stopped walking. In giving directions for the rehearing, the Chief Commissioner quoted from paragraph 8 of R(M) 3/86 and said:
‘11.	… In my judgment the Tribunal of Commissioners is not in the above passages seeking to lay down that wherever a refusal to continue walking can be overcome by a promise of reward or a threat of punishment then the conclusion has to be that the reason for stopping walking was a conscious choice. As Mr. James [the claimant’s representative] pointed out, if this were the true interpretation of this passage in its context, the causation of the stopping would apparently be determined by the means of re-starting. I am satisfied that read as a whole and in context the Tribunal of Commissioners was not purporting to lay down any such thing, in particular because in the last sentence which I have set out the Tribunal of Commissioners (accurately I respectfully agree) sets out the issue as between the propensity to cease walking being attributable either to a deliberate election or to a physical disablement. As both advocates before me agreed and I also agree, what has to be done to get a person to re-start walking, how long it takes, how frequently it has to be done, whether the circumstances vary and so forth are matters which are or may be relevant in the determination of the causation of the person concerned stopping walking – this is for the medical authority to decide. The Tribunal of Commissioners was giving an example and the premise in my judgment upon which it was proceeding for that example was that the child had voluntarily decided to stop walking and, under persuasion (as Mr. Brogan [the Secretary of State’s representative] put it) decided to start walking again. The passage should not however in my view be used other than as pointing to the possible relevance of the re-starting in connection with the causation and significance of the stopping.’
26.	The Chief Commissioner there clearly recognised that the Tribunal of Commissioners was giving an example and not laying down comprehensive propositions of law. I respectfully agree with that passage, except the sentence in which he identifies the choice as being ‘between the propensity to cease walking being attributable either to a deliberate election or to a physical disablement.’ That was the relevant distinction merely on the facts postulated in the example.
27.	In CM/098/1989, the claimant had sustained brain damage at birth. The medical appeal tribunal found that he was not unable to walk. The Commissioner held that the tribunal had not dealt sufficiently with the issue whether the claimant’s difficulties were attributable to his physical condition. He emphasised the importance of giving adequate reasons to support medical conclusions and identified relevant questions to be investigated:
‘4.	… in the case of a person who was so brain damaged at birth that he could not begin to lead a normal life and has a history of behavioural problems of various sorts, the adjudicating authority should provide very clear reasons for attributing the behavioural problems in question to something other than brain damage. If, in such a case as the present, the relevant behavioural problems have nothing to do with the physical damage what do they derive from?’
I respectfully agree with that passage.
28.	In CSDLA/4565/2003, a deputy Commissioner undertook a detailed analysis of these decisions. She considered that, although she was bound by R(M) 3/86, the Tribunal of Commissioners had extended R(M) 2/78 beyond what the Chief Commissioner had decided and beyond what was permissible in law. With respect, I believe that she was mistaken. She relied on the example given by the Tribunal of Commissioners and failed to appreciate that it was just that, and not a definitive statement of the law. 
Did the tribunal go wrong in law?
29.	Yes, it did.
30.	Given the authorities cited to the tribunal, especially confusion over the correct interpretation of paragraph 8 of R(M) 3/86, I cannot be sure that the tribunal directed itself correctly on the relevant law. This is particularly important given the fine and difficult distinctions that have to be drawn in order to determine the scope of the mobility component at the higher rate. I am specifically concerned about the tribunal’s finding that the claimant was exercising conscious volition in refusing to walk. It is possible that the tribunal may have drawn a false antithesis between physical disablement and conscious volition. Even if it did not, the tribunal has not explained adequately how it came to decide that the claimant was exercising his own volition. 
Disposal
31.	I have considered whether to direct a rehearing or substitute the decision that the tribunal should have made. I could make a decision on the basis of the tribunal’s findings. However, I am not satisfied that those findings are necessarily sound. It does not appear that they have asked all the questions suggested in CM/005/1986 and CM/098/1989. In those circumstances, out of fairness to the claimant I have directed a rehearing.
32.	At the rehearing, the tribunal will have to take care to draw two distinctions.
33.	First, there is a distinction to be drawn in respect of the difficulties that impair the claimant’s mobility. Any difficulties that arise from the claimant’s inability to control the direction of his walking must not be taken into account in view of Lees. Any difficulties that arise from the claimant’s refusal to walk can be taken into account. However, this distinction may not be easy to apply to the evidence. This case is an example. The evidence was that the claimant would refuse to enter or leave a store. The tribunal at the rehearing will have to decide whether he is unable to walk or just unwilling to walk in a particular direction. 
34.	Second, there is a distinction to be drawn in respect of the causes of those difficulties. This is not a case in which the claimant simply has autism. He also has severe learning disabilities and they may be attributable to a mental disability that contributes to his difficulties walking. To the extent that they are, the tribunal will have to disentangle and disregard them.

Signed on original
on 08 May 2008	Edward Jacobs
Commissioner