IN THE UPPER TRIBUNAL			Case No  CDLA/36/2009
ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD 

Decision:  The appeal is allowed.  The decision of the appeal tribunal sitting at East Ham on 2 September 2008 under reference 160/08/02498 involved the making of an error of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 14 of the Reasons.

REASONS FOR DECISION

1.	The claimant claimed Disability Living Allowance on 14 January 2008, at which time she was aged 24.  She moved to the UK from Poland in July 2007.  She has profound hearing loss.  Despite this, she managed successfully to study for a degree in mathematics, physics and technology.  She does not use sign language.  She can lip read in Polish, although encounters difficulties if someone speaks fast, or is not facing her, or has facial hair obscuring their lips.  She cannot communicate in English, so the question of lip-reading in it does not yet arise.

2.	The appeal tribunal hearing was conducted with the help of a Polish interpreter, whose spoken translation of what was said the claimant had to lip-read.  It was in essence the lower rate of the mobility component and the care component which were in issue.  The appeal tribunal refused the claimant’s appeal.  She now appeals to the Upper Tribunal with my permission.  The appeal is supported by the Secretary of State.

Mobility component

3.	As regards the lower rate of the mobility component, the tribunal, in a rather short statement of reasons, rejected this element in the following terms: “[The claimant] had attended college in Poland and had returned to Poland for a week shortly before the hearing. She did not mention any difficulty in getting around unaided either generally or on her trip to Poland.”  In her claim form, which was completed by her brother on her behalf, the box had been ticked for “I may get lost or wander off” and a narrative added that “I am afraid of going to the new places for a first time”.  From the record of proceedings, there is no indication that the tribunal asked any questions about the ability to get around unaided generally. This is a matter which the tribunal ought to have asked about in the exercise of its inquisitorial jurisdiction given that it had been put in issue.  Further, I interpret the tribunal’s statement of reasons as saying in effect that there was no evidence of such problems when there was (the answers on the claim form).  For both these reasons, the tribunal was in error of law.

4.	I am also of the view that if the extract from the tribunal’s reasons quoted above is to be understood as a finding of fact, there was no evidence that the claimant had had no difficulty on her recent trip to Poland.  A question was put: “Since [sc. July 2007] ok, back to Poland?”.  It was answered in terms that the claimant had just been back to Poland.  There was no answer about whether she had been “ok” while so doing.  In a context involving both interpreting between languages and lip-reading, the dangers in the apparent double question are evident.  On this aspect therefore there was also in my judgment an error of law.  (For the sake of completeness, I would add with an eye to the re-hearing that even if the claimant had been “ok”, the tribunal would still have needed to establish whether she had required help in order to be “ok”.)

Care component

5.	The claim for the care component on the ground of attention needs was dismissed in the following terms:

“[The claimant] is able to lip read in Polish and to position herself so as to be able to do so (ROP page 6).  Her communication problems are founded in her lack of understanding of the English language rather than in her disability itself.”

6.	By section 72 (1) of the Social Security Contributions and Benefits Act 1992:

“…a person shall be entitled to the care component of a disability living allowance for any period throughout which he is so severely disabled physically or mentally that he requires in connection with his bodily functions attention from another person” [to the requisite extent for the rate in issue].

It is established law that “requires” means “reasonably requires”.

7.	In R v National Insurance Commissioner ex parte Secretary of State for Social Services [1981] 1 WLR 1017, also reported as Appendix to R(A) 2/80, Lord Denning MR said in relation to section 35(1) of the 1975 Act (at page 1022):
“In order to qualify at all, the person must be “so severely disabled physically or mentally” that he requires attention. This conveys the thought that the attention must be required so as to enable him to cope with his disability, whatever it is.”

8.	The impact of the phrase quoted by Lord Denning MR was further examined in R(DLA)3/06.  There the Tribunal of Commissioners at paragraph 38 asked the question “Sections 72 and 73(1)(d) refer to “disabled physically or mentally”.  What do the emphasised words add?”  They answered it in paragraph 39:

“… the scope of sections 72 and 73(1)(d) is not of course unlimited.  For the relevant provisions to apply, the claimant must be disabled, i.e. have some functional incapacity or impairment.  He must lack the physical or mental power to perform or control the relevant function.  Therefore, excluded from the ambit of the provisions would be, for example, attention needs resulting from religious beliefs or cultural habit (e.g. CA/137/1984…)

9.	In CA/137/1984, a child had a disability affecting his right arm.  He could have used his left arm instead, were it not for a practice linked to his culture or religion which prevented him from doing so.  The present case in my view is different: if the claimant does have a disability meaning that she needs help in communicating with people, then there is, at least for a while, no way which is within her power to work round her disability in the case of communication with non-Polish speakers.  The position of a claimant who despite having the ability to learn to lip-read in English failed to make efforts to learn to do so would have to be considered in a case where it arose.  

10.	The fact that a hypothetical person with knowledge of the English language might be able to lip-read it and thus avoid the need for attention is, save for the issue reserved in the above paragraph, immaterial.  In applying the test in section 72(1) one is concerned not with an abstract or hypothetical problem, but with the needs of an identified person.

11.	Notwithstanding the agreement of the parties that the tribunal was in error of law on the point, I have given careful consideration to the tribunal’s view but am of the opinion for the above reasons that in concluding that “her communication problems are founded in her lack of understanding of the English language rather than in her disability itself”, the tribunal erred in law in construing and applying section 72.  

12.	It is of course still necessary to go on to examine the extent of the claimant’s needs.  As Secretary of State v Fairey [1997] 1 WLR 799, reported as R(A)2/98, reminds us, in the case of a deaf claimant these include attention to enable the claimant to carry out a reasonable degree of social activity.  What is reasonable depends on the age, sex, interests of the applicant and other circumstances.  This suggests a need for further facts to be found.  If the claimant only had contact, and only wished or needed to have contact, with Polish-speaking people, then she might be able to get by with lip-reading, subject to the difficulties inherent in that process identified in paragraph 1 above.  But in circumstances where communication is required otherwise than in Polish, attention is likely to be needed, at least for a while, to enable the claimant to communicate notwithstanding her hearing loss.  

13.	It would be open to a tribunal, if it considered that the conditions for an award were met, to make an award for a fixed period.  Ideally one would wish to know such matters as what would be the anticipated impact of the claimant’s hearing loss on the ability (including how long it would take her) to learn to make the sounds needed to communicate in a spoken language that is not her own and as to how a person with such a disability may be expected to obtain a sufficient grasp of the English sounds produced by movements of the lips in order to make the necessary correlation between what she sees the speaker’s lips do and the intended meaning.  If either of the parties is able to obtain further evidence on this issue, it may assist the tribunal, but otherwise the tribunal will have to do the best it can.

14.	I direct that there should be a full re-hearing of the appeal.  The tribunal can only consider the circumstances obtaining at the date of the original decision (22 February 2008)  (section 12(8)(b) of the Social Security Act 1998), but may take into account more recent evidence insofar as it bears on the circumstances obtaining at that date: R(DLA) 2/01 and 3/01. The tribunal will need to make appropriate findings, with an adequate evidential basis, on the claimant’s need for guidance or supervision when walking out of doors on unfamiliar routes.  It will also need to make findings as to the extent of her attention needs in connection with her hearing loss, applying the guidance given earlier in this decision.  Before the case is re-listed, the file should be placed before a District Tribunal Judge to consider the giving of directions, including in relation to the provision of an interpreter and the filing of any further evidence.

(signed on original)					
C.G.Ward
 Judge of the Upper Tribunal
27 June 2009