[2007] UKSSCSC CDLA_3898_2007 (16 October 2007)
DECISION OF THE SOCIAL SECURITY COMMISSIONER
- The claimant's appeal to the Commissioner is disallowed. The decision of the Wakefield appeal tribunal dated 22 August 2006 is not erroneous in point of law, for the reasons given below, and therefore stands.
The issue and representation
- The claimant seeks a ruling of principle that someone whose visual problems, particularly when associated with anxiety or depression, prevent them from walking outdoors without guidance or supervision from another person can be entitled to the higher rate of the mobility component of disability living allowance (DLA) on those grounds. The crucial provision in the relevant legislation is regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 (the DLA Regulations):
"(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) of the [Social Security Contributions and Benefits Act 1992] (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;"
It is not now argued that regulation 12(1)(a)(iii) or regulation 12(2) (qualification for higher rate of the mobility component if blind (assessed at 100% disablement) and deaf (assessed at 80% disablement)) could assist the claimant.
- Mr Commissioner Williams directed an oral hearing of the appeal to the Commissioner jointly with the hearing of the appeal in another case decided by the Wakefield appeal tribunal on 22 August 2006, with the present case as the lead case. The hearing took place before me at Doncaster County Court on 18 September 2006, after some adjournments. The claimant attended, represented by Mr Robert Finnigan of Kirklees Metropolitan Council's Benefit Advice Service and accompanied by Ms Judith Land of the Dewsbury and Batley District of the Society for the Blind. The Secretary of State for Work and Pensions was represented by Mrs Gillian Jackson of the Office to the Solicitor to the Department for Work and Pensions. I thank both representatives for their clear and well-prepared submissions.
The factual background
- The claimant has an award of the lower rate of the mobility component of DLA and the middle rate of the care component (for frequent attention throughout the day) from and including 4 June 2003 for an indefinite period, by virtue of the decision of an appeal tribunal of 27 May 2004. On 18 November 2005 he made an application for supersession of the appeal tribunal's decision on the ground of relevant change of circumstances. The Secretary of State accepted that there had been a change, but decided on 25 November 2005 that the change was not sufficient to justify making a different decision. It was the decision not to supersede that was under appeal to the appeal tribunal.
- The appeal tribunal made the following findings of fact, which have not been challenged as outside the range of findings that it was entitled to reach on the evidence before it:
"7. As to the Appellant's condition and its development, the Tribunal accepts the report on the medical records at the Department of Ophthalmology, Dewsbury and District Hospital in the letter dated 26/04/2006, of Mr O Backhouse, Consultant Ophthalmic, Neuro-Ophthalmologist and Uveitis Specialist at Leeds General Infirmary. The Appellant was first seen in 1981 and had a visual acuity of 6/6 in each eye. In 1992 he was given the diagnosis of bilateral choroideremia. Due to marked field restriction he was registered as being partially sighted. This was changed to a fully blind registration on 2 July 2003. At the date of the letter, the Appellant had a profound field of restriction and although his central acuity was fair it was likely to deteriorate. In the Tribunal's view the Appellant has profound loss of sight.
8. From the Appellant's evidence, and that of Ms Judith Land ..., we find that the Appellant is physically able to walk in the sense of having the faculty physically to move one foot in front of the other. He did suffer from gout but this has been controlled by medication for five years and does not affect his faculty to walk. The Appellant does not need to be supported in order to walk. When guided and supervised the Appellant can physically walk normal distances, at a reasonable but slightly slower than normal speed, using a cane or stick, with good balance and without severe discomfort.
9. The appellant cannot use his faculty for walking out of doors unless he is at all times guided and supervised. The guidance takes the form of steering in the desired direction, avoiding obstacles, and the supervision is encouragement.
10. The Appellant is anxious about his loss of sight, not being aware of surroundings, not being able to foresee and avoid danger, and his loss of independence and general vulnerability. This anxiety relates to his state of mind and is not a physical condition."
The appeal tribunal's decision
- The documents put to the appeal tribunal on behalf of the claimant concentrated on the physical disablement caused by the visual problems resulting from his choroideremia. The supersession application form and some of the letters put in with it raised an issue of discrimination in the DLA legislation, in the argument that someone registered blind, who apparently did not qualify for the higher rate of the mobility component, could be more disabled and need more assistance with getting around than someone who did qualify for the higher rate. Even someone with no use of the legs at all might be able to get around independently in a wheelchair or be able to drive a car. However, there was also mention of a diagnosis of depression after the claimant had to give up work in 2003.
- The claimant attended the hearing on 22 August 2006, chaired by the regional chairman, with Mr Finnigan and Ms Land and gave evidence. His evidence included that going out was a very anxious time. He had foreboding, as he did not know where he was going, where steps were etc. He had left work, checking valves on cylinders, because of stress and anxiety, in that others relied on the cylinders being up to specification. He was on anti-depressants for six months. He had not had a panic attack as such, but he had fallen over things outdoors. In answer to the presenting officer representing the Secretary of State, he apparently agreed that he could walk out of doors, including unfamiliar places, with the assistance of other people. It was part of Mr Finnigan's submissions that the claimant's anxiety amounted to severe discomfort, and was linked to his physical impairment, so that his capacity to walk only subject to anxiety should be disregarded.
- The appeal tribunal disallowed the appeal. In its very clear and thorough statement of reasons it accepted that there had been a change of circumstances since 4 June 2003, in the registration as blind, and since 27 May 2004, in a gradual deterioration in the claimant's eyesight. In relation to virtual inability to walk it posed itself the question "are the anxieties about walking out of doors and arising from a profound loss of sight to be regarded as part of the Appellant's `physical condition as a whole' for the purpose of determining `severe discomfort'?" The statement continued:
"23. Again, in terms of ordinary language the answer would be certainly so. However, the Tribunal is bound by Harrison v Secretary of State for Social Services [1987] see R(M) 1/88. The claimant had a back injury. His inability to walk was adjudged to be `hysterical in origin' and Mobility Allowance was not renewed by a Medical Appeal Tribunal. The claimant's appeals were dismissed by both a Social Security Commissioner and the Court of Appeal. It seems to us that Harrison confirms propositions, later applied by Commissioners' decisions, that if the restriction on walking is solely of the mind it cannot be a physical disablement, but if the condition of the mind is itself a consequence of a physical condition directly affecting the physical faculty to walk (for example a genuine anxiety that a spinal or heart condition prevents the physical action of walking when it does not) it is open to a Tribunal as a matter of fact and opinion to find the mental state comes within what is now termed by regulation 12 part of the `physical condition as a whole'.
24. The Commissioners' decisions discussed [in the notes in Volume I of Social Security Legislation 2005] show the difficulty in deciding the extent to which a mental state falls to be included or excluded from consideration of an Appellant's `physical condition as a whole'.
25. In this case we have decided:
The Tribunal must find a physical cause related to the capacity or otherwise to perform the physical act of walking. It is not sufficient to say manifestly the Appellant cannot make progress on foot to a destination of his choice. On the binding authority of Lees profound loss of sight is a disability which is unrelated to the capacity or otherwise to perform the physical act of walking, `the physical power to move one leg in front of another'. The Appellant is not unable or virtually unable to walk on the interpretation given by that decision.
The Appellant's anxiety at not being able to move from one place to another by himself, not being aware of his surroundings, not being able to foresee and avoid danger, and his loss of independence and general vulnerability, relate to his state of mind. That state of mind arises from the Appellant's profound loss of sight. It does not arise from a physical disablement which reduces or potentially reduces his ability to perform the physical act of walking as defined by Lees. On the binding authority of Harrison, the anxiety cannot be regarded, either alone or together with the profound loss of sight, as part of a physical condition as a whole for the purposes of the legislation. The Appellant's physical condition as a whole is not such that he is unable or virtually unable `to make progress on foot without severe discomfort'.
The Tribunal agree with the argument put for the decision maker that the present entitlement to the lower rate of the mobility component is the correct entitlement specifically provided for the Appellant's circumstances: he is physically able to walk out of doors but requires guidance and supervision in order to exercise that faculty.
26. The Tribunal has to apply the law it understands it to be. If it had been left to us we would have interpreted the law in this way: `physical condition as a whole' includes the effects of the profound loss of sight. But, even then, after considering the MANNER of the Appellant's walking with the guidance and supervision provided by the lower rate, the Appellant is still not unable or virtually unable to walk in accordance with the statute. He is still able to walk as interpreted by Lees, to an appreciable extent and without severe discomfort. Similarly, if in spite of Harrison the anxiety fell at first to be considered as part of the physical condition influencing the ability to walk, that anxiety in turn would be allayed by the guidance and supervision so that the Appellant would not have severe discomfort when walking."
The chairman noted finally that a copy of Tribunal of Commissioners' decision R(DLA) 4/06 issued in June 2006 did not come to light until after the hearing (although the decision reported under that reference in appeals CDLA/2879/2004 and CDLA/2899/2004 had been signed on 25 November 2005 and made publicly available, including on the Commissioners' website, shortly afterwards).
The appeal to the Commissioner
- The claimant now appeals to the Commissioner with the leave of the chairman of the appeal tribunal. I agree with the appeal tribunal that Lees v Secretary of State for Social Services [1985] AC 930, appendix 2 to R(M) 1/84, if not completely decisive in the present case, is at least central to it. A Commissioner is of course bound to apply the legal principles for which that case stands, but I consider that it expresses a result that must follow from the terms of the conditions of entitlement to what is now the higher rate of the mobility component. As illustrated by the arguments in the present case, the apparently simple words now in regulation 12(1)(a)(ii) of the DLA Regulations raise many difficulties around the edges of their application. Indeed, the point is sometimes reached where the issues appear unjusticiable, in the sense that it is not possible to draw a rational and consistent line between cases that fall within entitlement and cases that fall outside entitlement. In such circumstances it is necessary to hold fast to fundamental propositions such as are contained in Lees. It is therefore worth setting out what was decided in that case.
- Miss Lees was, as found by the medical appeal tribunal in that case, totally blind and had some hydrocephalus with symptoms including some impairment of balance and marked impairment of capacity for spatial orientation. Outdoor walking was feasible only with the help of an intelligent adult to guide her. With that help she could walk for reasonable distances at a satisfactory pace and without undue distress and without risk to her health. It was argued for Miss Lees that as a result she was not able to make progress on foot, since that test contained a purposive element, the ability to direct oneself to a desired destination. The House of Lords rejected that argument. Lord Scarman, giving the only substantive speech, confirmed that the meaning of "walk" and "walking" in the context of the particular legislation was a question of law. He accepted that, while the primary legislation, the predecessor of section 73(1)(a) of the Social Security Contributions and Benefits Act 1992, appeared to emphasise physical difficulty in the act of walking, the crux was in the regulations (a point expanded on considerably in R(DLA) 4/06). Lord Scarman concluded that the ability to make progress on foot referred to the physical ability to move on foot, not to the direction of the movement. He rejected the argument that Miss Lees's ability to walk out of doors was limited by her need for help from a guide for two reasons. First, the language of the regulation indicated very clearly that "the disability which has to be shown to exist is in the physical movement on foot". Second, the argument went too far: it would mean that any blind person would qualify even when the physical act of walking was as much within their ability as within that of a sighted person. There had to be a limitation on the physical ability to move herself on foot.
- Thus the arguments with which this case started were doomed to failure in law. It cannot in the face of the decision in Lees be concluded as the legislation currently stands that a person qualifies for the higher rate of the mobility component merely by virtue of blindness. The new factor added by Mr Finnigan in argument to the appeal tribunal was severe discomfort in the form of anxiety arising from the physical disablement of visual impairment. He submitted to me that Lees is not decisive against the taking into account of such severe discomfort because that point was not argued before the House of Lords. It is true that there was no specific discussion of severe discomfort in Lord Scarman's speech. However, the factual basis was that Miss Lees could not in practical terms walk out of doors without guidance from another person. And Mr Commissioner Rice, in his decision (R(M) 1/84) that was upheld by the House of Lords, rejected an argument that psychological stress or emotional distress could count as a serious deterioration in health under the predecessor of regulation 12(1)(a)(iii), because it did not arise from the exertion of walking, ie the physical process of moving her feet. In doing so he accepted that if Miss Lees went out on her own without a guide she might be severely upset. Thus, it cannot be ignored that the House of Lords reached its conclusions of principle in that context.
- Accordingly, it must follow in my judgment that a claimant's ability to walk, ie to put one foot in front of the other, out of doors must be judged by reference to that ability when assisted by the guidance or supervision or other assistance (short of physical support) of another person and the use of any appropriate aids (like a stick), if there is nothing in the claimant's condition to limit the times at which benefit would be gained from such assistance. There appears to be no such factor in the present case. The test is subject to the principle that walking which is achieved at the cost of severe discomfort, even though assisted by another person, is to be disregarded. I doubt, in the light of Lees and of the decision of the Tribunal of Commissioners in R(M) 3/86, whether "mere" mental distress, turmoil or anxiety (as opposed to physical manifestations like breathlessness, palpitations, dizziness, chest pain or nausea) can amount to severe discomfort even where a physical disorder contributes to the effect to more than a minimal extent. There would also, if such things could count, be difficulty in distinguishing a perfectly rational heightening of caution, vigilance and concentration, which presumably could not be regarded as severe discomfort on any basis. However, I do not have to decide such questions (including whether Mrs Jackson for the Secretary of State went too far in submitting that paragraph 26 of Tribunal of Commissioner's decision R(M) 1/83 and Hewitt v Chief Adjudication Officer, R(DLA) 6/99, decided that only severe physical discomfort resulting from the physical action of walking counts), in view of the findings of fact and conclusions expressed by the appeal tribunal of 22 August 2006.
- The crucial finding of fact was that when guided and supervised the claimant could physically walk normal distances, at a reasonable but slightly slower than normal speed, without severe discomfort (paragraph 8 of the statement of reasons)). The crucial conclusion was, on the basis that the appeal thought it could not adopt of the claimant's anxiety being considered as part of his physical condition influencing the ability to walk, that that anxiety would be allayed by the guidance and supervision, so that he would not have severe discomfort when walking (paragraph 26). There was thus an express conclusion that the claimant did not suffer from severe discomfort, taking account of the effects of his anxiety, as a result of walking out of doors. Unless that conclusion can be shown to have been legally flawed, the only result that could properly have followed it was a disallowance of the higher rate of the mobility component. Anxiety in advance of walking cannot be relevant if a claimant is in fact able to walk out of doors without severe discomfort when accompanied.
- Mr Finnigan's submission was that the appeal tribunal had made an assumption that guidance and supervision would allay the claimant's anxiety. It should have asked him specifically about that point and, if it had, it would have been told that the anxiety was not allayed. There had to be a special bond between the person providing assistance and the claimant for him to be given any significantly increased confidence and even in those circumstances he remained anxious when walking. It was submitted that the claimant's answer mentioned in paragraph 7 above was only about whether the claimant was able to walk out of doors, not about whether or not that was at the cost of severe discomfort.
- In my judgment, the appeal tribunal cannot be faulted in law on this ground. The issue of severe discomfort was being developed by Mr Finnigan at the hearing on 22 August 2006. Previously the claimant himself had put his case more on the ground of safety and on the drawing of analogies with others who did qualify for the higher rate of the mobility component. It was fundamentally for Mr Finnigan to ask the necessary questions to draw out the relevant evidence from the claimant on the issue. The presenting officer's question gave the claimant the opportunity to describe how his walking was affected when he was out with another person and came after a discussion between the chairman and Mr Finnigan about whether severe discomfort included mental discomfort as well as physical discomfort. The claimant had already talked of going out being an anxious time, but without apparently being specifically asked whether that was when walking alone or also when accompanied. Although he mentioned that he needed a lot of assistance in unfamiliar places, his reply was apparently that he could walk with assistance, without a specific mention of mental or physical discomfort. In those circumstances, there was no unfairness in the appeal tribunal's reaching the conclusion in paragraph 26 of the statement of reasons without having sought a further view from the claimant on it. The appeal tribunal was entitled to reach that conclusion on the evidence that it had and gave an adequate explanation. Of course, the conclusion that the claimant could walk normal distances without severe discomfort (on the assumption that anxiety could be taken into account) was consistent with the existence of discomfort at less than that level. And for these purposes, distinctions between familiar and unfamiliar routes are not relevant.
- I am not sure that I follow the appeal tribunal's reasoning in the second sub-paragraph of paragraph 25 of the statement of reasons or whether its view of the effect of Harrison is consistent with the decision of the Tribunal of Commissioners in R(DLA) 4/06. But that is not material to its decision. The basis adopted in paragraph 26 was consistent with R(DLA) 4/06 and made an assumption in favour of the claimant about the meaning of severe discomfort. On that basis, the appeal tribunal's conclusion cannot be faulted in law by the claimant.
- The claimant's appeal to the Commissioner must therefore be dismissed.
(Signed) J Mesher
Commissioner
Date: 16 October 2007
