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Test case ruling on DLA lower mobility component

A decision by a tribunal of Social Security Commissioners, given on 15 June 2000, should make it easier for many profoundly deaf BSL users to qualify for the lower rate mobility component of disability living allowance (DLA). The decision should also mean that people with conditions such as epilepsy, whose need for supervision is not directly related to their walking ability, will be able to qualify for lower mobility component. The tribunal considered four cases: CDLA/714/1998 (an epilepsy case), CDLA/2460/1998 (a post-traumatic stress disorder case), CDLA/414/1999 and CDLA/823/1999 (both profoundly deaf BSL users).

Background

Section 73(1)(d) Social Security Contributions & Benefits Act 1992 provides that a person shall qualify for DLA lower mobility if:

‘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.’

Before the decision by the tribunal of commissioners there had been conflicting commissioners’ decisions on how to interpret this section. The tribunal decision takes precedence over previous decisions by individual commissioners. The main questions in dispute were:

  • Can the same act of outdoor guidance or supervision enable someone to qualify for both care and mobility component? A person can qualify for DLA middle rate care if he or she needs ‘continual supervision throughout the day in order to avoid substantial danger to himself or others’.[1] Does it follow that someone who qualifies for middle rate care on ‘continual supervision’ grounds is automatically passported onto lower mobility? The Secretary of State’s representative argued that Parliament cannot have intended for two benefits to be awarded for the same need.
  • Can someone qualify for lower mobility component if supervision is needed to prevent the risk of harm (e.g. from epileptic seizures or falls), but is not directly related to their actual walking ability? In CDLA/757/1995 the Commissioner held that a woman who has a propensity to fall could did not qualify because ‘Supervision was not a pre-requisite for her exercising her power of walking: it was an additional advantage rendering her walking less open to risk’. However, in the case of a person at risk of epileptic seizures, a Commissioner took the opposite view ‘that a need to be accompanied when walking may amount to a need for supervision’ (CDLA/52/1994).
  • Can reassurance needed by a profoundly deaf person, because s/he suffers from fear and anxiety in unfamiliar places, constitute ‘supervision’? In CDLA/14307/1996 Commissioner Goodman held that ‘If a fear of being attacked or attacks of panic on getting lost, are a consequence which a person of reasonable firmness would suffer from profound deafness…then the fear and panic are legitimately to be taken into account’. However,Commissioner May took the opposite view in CSDLA/840/97 & CSDLA/867/97, saying that ‘there would require to be a link between fear or a fear of danger when out of doors and a mental disablement…the link between the disablement and the inability to take advantage of the faculty of walking must be direct’.
  • Can a profoundly deaf person qualify for lower mobility if s/he needs an interpreter to explain and follow directions on unfamiliar routes? In CDLA/14307/1996 Goodman held that interpreting for a deaf person who needs to ask for directions can count as ‘guidance’. In CSDLA/840/97 & CSDLA/867/97 Commissioner May disagreed with this approach saying ‘I do not see how a person accompanying the claimant asking a stranger for directions on an unfamiliar route could be said to be giving guidance to the claimant’.

What the Commissioners decided

The Commissioners decided in favour of the claimants in all four cases. The decision effectively settles the disputed issues in the following ways:

Overlap between care and mobility

The tribunal of Commissioners ruled that there was nothing in the statutory language ‘which dictates that attention or supervision requirements which are taken into account for the purposes of entitlement to the care component should not also be taken into account for the purposes of the lower rate of the mobility component’ (para 11). Therefore, it would be wrong to exclude a deaf person’s need for an interpreter when travelling outdoors from being taken into account for both care and mobility components. It does not, however, follow that someone who passes the ‘continual supervision’ test for middle rate care component is automatically passported to lower mobility component. Instead ‘decision makers and tribunals should determine such entitlement by reference to the criteria set out in section 73(1)(d) and not by reference to any other criteria’ (para 14).

The meaning of ‘take advantage of the faculty’ of walking’

The Commissioners ruled that s73(1)(d) does not contain the words ‘cannot exercise the faculty of walking’ but uses the words ‘cannot take advantage of’ that faculty. These words have a wider meaning and ‘carry with them the connotation that the claimant is not able most of the time to walk over unfamiliar routes so as to be able to get to the desired destination whenever he wants without the prescribed supervision or guidance’ (para 11). The phrase ‘cannot take advantage of the faculty’ of walking therefore can encompass types of supervision which are not directly related to walking ability. This means that people who need supervision because, for example, they are prone to epileptic seizures, but do not have problems with orientation, can qualify for lower mobility component. The Commissioner’s approach in CDLA/757/1995 should therefore no longer be followed.

Reassurance and deaf people

The Commissioners decided that ‘mere reassurance cannot constitute supervision’ - there has to be an additional ‘element of monitoring or readiness to intervene’ as described by in CDLA/42/1994. Aprelingually deaf personwith ‘consequent severely impaired comprehension of English’ who never travelled alone on unfamiliar routes because he or she was too frightened or nervous,can qualify for lower mobility component.

‘The prelingually deaf person derives reassurance and is able to walk in unfamiliar places because he has the knowledge that the person accompanying him will be ready to intervene or guide if and when occasion arises’ (para 18)

Commissioner May was wrong to say that there must be ‘a link between fear or a fear of danger when out of doors and a mental disablement’ (CSDLA/840/97 & CSDLA/867/97). If the fear and anxiety is caused by deafness, and prevents someone from walking alone in unfamiliar places, ‘the necessary causal nexus is established between the disability and the inability to take advantage of the faculty’.

The inability to follow directions

It was argued on behalf of the Secretary of State that the inability of a deaf person to ask directions from a passing stranger did not constitute guidance and that, in any case, this did not occur ‘most of the time’ as s73(1)(d) requires. However the Commissioners decided that ‘a requirement for guidance most of the time might me made out’ for profoundly deaf people who had little or no ability to communicate by speaking, reading, writing or lipreading.

‘Such claimants may need someone with them on unfamiliar routes to ensure that they do not get lost: although the guide may only intervene occasionally – for example to indicate whether or when the claimant should take a turning – he will nonetheless be guiding (or possibly supervising) all of the time since otherwise the claimant will not know whether or when to change direction’ (para 19)

By the same logic, many deaf people will only require limited guidance because ‘they will be capable of studying maps, reading street signs or communicating with passers by, either in writing or by speaking or lip reading’.

How this will affect deaf people?

It is estimated that 11,000 deaf people are getting DLA lower mobility component.[2] Until now it has been easier for deaf children to get lower mobility than for deaf adults.[3] The tribunal of Commissioners’ decision should enable profoundly deaf adults, whose first language is BSL, and whose ability to communicate in written or spoken English is limited, to qualify for lower mobility. A deaf person who cannot communicate through lipreading or speaking, and who finds it difficult to follow maps or understand written directions, needs to be accompanied on unfamiliar routes ‘most of the time’. The deaf person’s escort will be providing guidance by helping them to understand and follow directions, or supervision by reassuring them if they are too frightened or nervous to travel on their own. Not all profoundly deaf people will be able to qualify for lower mobility as a result of this decision. Deaf people, whose ability to communicate with non-signers or read maps and directions is relatively good, will find it harder to show that they need guidance ‘most of the time’.

What to do next

If a deaf person has a current award of DLA, but has been refused lower mobility component, he or she should apply for either:

  • a revision:[4] within one month of the initial decision (or later in special circumstances); or
  • a supersession:[5] if the last decision was made more than one month ago.

A decision can only be superseded in specified circumstances.[6] If the original decision was made by a Benefits Agency decision maker, it should be possible to apply for a supersession on the grounds that the decision was erroneous in law. If the original decision explicitly states that interpreting directions for a deaf person cannot count as guidance, this is a clear error of law. Even if the reasons given were not so explicit, a decision is, arguably, still erroneous in law if it does not clearly follow the approach adopted by the tribunal of Commissioners. It may be harder to show that has been an error of law if no written reasons were given for refusing the lower mobility component.

Tribunal decisions cannot be superseded on error of law grounds. Therefore, if a deaf person’s current award was made by an appeal tribunal, the only means of redress is a late appeal to the Commissioners. A late appeal to the Commissioners must be made within a year of the tribunal decision.

If the last decision was made ‘in ignorance of some material fact’ this also constitutes grounds for superseding a decision made by either a decision maker or a tribunal. If the decision maker or tribunal was not in possession of all relevant facts about the deaf person’s mobility problems (e.g. they did not know that the deaf person could not understand maps or written directions), this should be sufficient grounds for supersession.

Duleep Allirajah

Welfare Benefits Policy Officer

26 June 2000

[1] s72(1)(b)(ii) Social Security Contributions & Benefits Act 1992

[2] DSS Analytical Services Division estimates at 31 May 1999

[3] see for example CDLA/2268/1999

[4] s3 Social Security Act 1998

[5] s10 Social Security Act 1998

[6] Reg 6 Social Security & Child Support (Decisions & Appeals) Regulations 1999