KH v The Secretary of State for Work and Pensions (DLA)

The issue raised in this appeal is whether the appellant is entitled to a renewal of her award of disability living allowance.

The appellant was born on 23 February 1959. As at the date of the decision under appeal (2 November 2012) she was aged 53 years. She suffers from what doctors treating her have described as severe agoraphobia. She has also said she suffers from osteoporosis and has made mention of problems with her knees, back and hands. There is no doubt, though, that her most significant medical difficulty is the agoraphobia.

The appellant made a claim for disability living allowance which was treated as having been made on 14 February 2008. She completed a claim pack in which she indicated that she had not ventured out-of-doors for 23 years. This was, she said, due to her agoraphobia. She said, for the most part, she would stay in her bedroom. She said that her daughter would prepare meals for her and would communicate with people on her behalf. She would also collect her prescriptions. In that context, she said that she was taking Zopiclone and Co proxamol. A report prepared by her GP, and dated 27 March 2008, indicated that she suffered from longstanding severe agoraphobia but that her ability to self-care and her insight and awareness of danger was normal. No other disabling condition was mentioned. As to her ability to mobilise it was said that she never leaves her home and will not see strangers.

On 17 April 2008 the respondent decided that the appellant was entitled to the lower rate of the mobility component and the middle rate of the care component of disability living allowance from 14 February 2008 to 13 February 2013 inclusive. Prior to the expiry of that award the appellant applied for renewal.

In completing a renewal claim pack the appellant made reference to her agoraphobia and to the problems with her knees, back and hands which are mentioned above. She did not claim to have any physical difficulties in walking. She said that she did not need someone with her to supervise her when walking outdoors though it is plain from what else she says in the form that she was not doing any walking outdoors. She did not claim any specific need for assistance in connection with her ability to self-care nor did she claim any need for supervision in the home.

On 2 November 2012 the respondent decided that the appellant was not entitled to either component of disability living allowance from and including 14 February 2013. Thus, the award was not to be renewed. The appellant appealed to the First-tier Tribunal (F-tT).

The appellant, when appealing, submitted various letters to the F-tT including some written by doctors who had treated her, concerning her agoraphobia. It is fair to say that the impression given by those letters was that the agoraphobia was severe as she had claimed.

The F-tT held an oral hearing. The appellant, not surprisingly in view of the history of her not having been out of her home for many years, did not attend. However, her adult daughter did attend and did provide oral evidence. The appellant was not represented at this hearing. The respondent was represented by Mr Bedford, a presenting officer. The F-tT had the benefit of a considerable volume of documentary evidence including that referred to above and the appellant’s medical records which had been obtained as a result of an earlier tribunal direction.

The F-tT dismissed the appeal and upheld the respondent’s decision of 2 November 2012. On 9 July 2013 (the date of hearing) it issued a decision notice to that effect. It subsequently produced its statement of reasons for decision (statement of reasons).

As to possible entitlement to the care component of disability living allowance the F-tT found that the appellant was “a self-caring recluse”. It noted that in completing her renewal claim pack she had not indicated any care needs. It noted that she lived alone albeit that she was visited by her daughter and her sister. It observed that there was no medical diagnosis of osteoporosis. It found that she was able to self-care during the day and that she had no night time needs. It found that she did not require supervision. It found that she could prepare a cooked main meal for herself.

The F-tT then turned to consider possible entitlement to the mobility component. Uncontroversially, it concluded that she was not unable to walk or virtually unable to walk so was not entitled to the higher rate of the mobility component. As to the lower rate, it said this:

“ 3.2 We looked at the lower rate of mobility component of DLA and the criteria. We were assisted by the submissions of the presenting officer, as we were considering an unusual case of a recluse, who had not taken advantage of the faculty of walking out-of-doors as she is agoraphobic. We considered if she would take advantage of the faculty. She had not been outside the door of her own property, even into the back garden of her property to hang out the washing for instance, since 2008.

3.3.

Section 7(3)(8) Social Security Contributions and Benefits Act 1992 states that a person shall not be entitled to the mobility component for a period unless during most of that period her condition will be such as permits her from time to time to benefit from enhanced facilities for locomotion.

3.4

We found that she is not likely to derive benefit from an award of lower rate mobility component. She refuses to go out-of-doors anyway, even into her own back garden. To be entitled to an award, there has to be some benefit out-of-doors. [The appellant] cannot satisfy the conditions for an award of lower rate mobility component because she never ventures out-of-doors.”

The F-tT did address the point that it was dealing with a renewal claim rather than a fresh claim. In that context, it said this:

“ 3.5 We were not bound in law by the decision made on [the appellant’s] old claim in 2008. Even if there had been no change in [the appellant’s] mental and physical condition since 2008, we are entitled to reach our own decision on the evidence before us, and there is no requirement for us to show an improvement.”

Hence, the appeal failed. However, the appellant, through her representatives at the Hastings Advice and Representation Centre, applied for permission to appeal. Permission was granted by a district tribunal judge of the First-tier Tribunal.

The grounds of appeal were to the effect that, with respect to possible entitlement to the lower rate of the mobility component, the F-tT had overlooked what was said in CDLA/3317/2012 (now reported as IN v Secretary of State for Work and Pensions (DLA) [2013] UKUT 0249 (AAC)) and that, generally, it had reached a decision which was not supported by the oral evidence it had received.

When issuing case management directions I expressed the view that what is said about section 73(8) of the Social Security Contributions and Benefits Act 1992 in BP v Secretary of State for Work and Pensions [2009] UKUT 90 (AAC) might be of relevance. I also raised the possibility that the F-tT may not have sufficiently enquired into or made sufficient findings regarding the possibility of the appellant ever being persuaded to venture out-of-doors. Finally, I wondered whether the F-tT had sufficiently explained its decision to depart from the previous award bearing in mind that the decision before it was one taken on renewal.

Mrs J Camponi, who now acts for the Secretary of State with respect to this appeal to the Upper Tribunal, has provided a written response to the grant of permission. She does not support the appeal. She submits that the case of BP is not of assistance. She submits that section 73(8) means that there can be no entitlement to the mobility component of disability living allowance in circumstances where a claimant cannot, from time to time, benefit from enhanced facilities for locomotion. She says that to satisfy the “guidance or supervision” test, in the context of the lower rate of the mobility component, a claimant must be able to show that the guidance or supervision he or she receives will overcome an inability to take advantage of walking out-of-doors. Therefore, someone with agoraphobia who refuses to leave home because of the severity of the condition cannot satisfy the requisite test. There is, she says, strong evidence that the appellant does not go out-of-doors and has not done so for many years. Whilst the F-tT did not make clear findings about the likelihood of her ever going outside in future, any failure to do so could not have impacted upon the outcome. The F-tT were aware that they were dealing with a decision on a renewal claim and had addressed that aspect sufficiently.

The appellant’s representatives, observed that the respondent had failed to deal with the suggestion that the decision in IN had been overlooked. The representatives did not seek to make any further points other than that.

There has been no request, by either party, for an oral hearing. I have not considered it necessary to hold one because there is sufficient material before me to justly decide the appeal without one.

The test for the mobility component of disability living allowance is to be found at section 73 of the Social Security Contributions and Benefits Act 1992. The salient parts read as follows:

“ 73. - (1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which –

(a)

…

(a)(b) …

(b)

…

(c)

… or

(d)

he is able to walk but is so 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….

(8)

A person shall not be entitled to the mobility component for a period unless during most of that period his condition will be such as permits him from time to time to benefit from enhanced facilities for locomotion.”

It is, first of all, necessary to consider what the F-tT can be taken to have decided. In the section quoted above, in which it sought to explain its conclusion regarding the lower rate of the mobility component, it only referred to one statutory provision, being section 73(8). It was stating that it considered the appellant was not entitled because she was caught by that sub-section. However, it also made the point that she refuses to go out-of-doors anywhere and said she cannot satisfy the test “because she never ventures out-of-doors”. It had also indicated that it was considering if she could take advantage of the faculty of walking. That sort of language appears to relate not only to the conditions in section 73(8) but also to the test in 73(1)(d). The F-tT appeared to conflate the two tests but it seems to me clear that whilst it was deciding her condition did not permit her from time to time to benefit from enhanced facilities for locomotion it was also deciding, in effect, that because she did not venture out-of-doors, any guidance or supervision from another person she might receive would not lead to her doing so.

Another way of looking at it might be that given the findings it did make, had it specifically asked itself, in terms, whether the appellant could, with guidance or supervision, take advantage of the faculty of walking out-of-doors it would have concluded she could not.

There has been some historical judicial disagreement as to whether a claimant who cannot take advantage of the faculty of walking out-of-doors, even with guidance or supervision, can succeed in establishing entitlement to the lower rate of the mobility component. Various earlier decisions were considered in CDLA/2364/1995. The Social Security Commissioner deciding that case considered an argument to the effect that if a particular type of disablement was such that, in its general nature, it could be alleviated by guidance or supervision from another person then entitlement would follow even if the particular claimant would not benefit from that guidance or supervision. The claimant in that case also suffered from agoraphobia and would not walk out-of-doors.

The Commissioner stressed that the object of the disability living allowance scheme was to provide claimants who have disabilities with money which can be applied towards the expense of coping with the effects of their disablement. He said that if the above argument were correct this would result in claimants becoming entitled to a payment of benefit under section 73(1)(d) even if such payment would never result in them being able to make use of the faculty of walking out-of-doors. He observed:

“Section 73(1)(d) has to be decided by a reference to the effect on the particular claimant of supervision or guidance and not by reference to the effect that supervision or guidance could be expected to have on any person who experiences limitations of the nature of those experienced by the claimant.

Further, to my mind ‘supervision’ within the meaning of section 73(1)(d) is supervision of somebody who is out-of-doors and who either is or has been walking as a result of that supervision in the course of that particular outing or in the course of past outings. That supervision does not include unsuccessful attempts to persuade somebody who has not done so since the onset of disablement to walk out-of-doors. None of the efforts of the claimant’s helpers amounts to supervision for the purposes of sub-paragraph (d) until those efforts overcome with reasonable frequency the claimant’s inability to make use out-of-doors of the faculty of walking. Until that point is reached the lack of somebody to supervise her would have no bearing on the claimant’s failure to walk out-of-doors. I think that even if that were not the import of the language of section 73(1)(d) it is the construction that would have to be put on that provision to comply with the purpose of the legislation. Any less strict a construction would result in payments to claimants who would not benefit from the assistance which the scheme is intended to finance or to claimants for whose benefit the scheme is not intended. This claim fails because the claimant has not established that there is any amount of supervision from another person which can overcome her inability to make use out-of-doors of her faculty of walking.”

That would seem to be impeccable logic. The approach was followed in CSDLA/12/2003. That was a case where a claimant suffered from both claustrophobia and agoraphobia and could not be persuaded to walk outdoors. It was found that there was no entitlement to the lower rate of the mobility component. Perhaps more importantly, these decisions were upheld by the Court of Appeal in Northern Ireland in Mongan v Department of Social Development [2005] NICA 16. The Court of Appeal in Northern Ireland, echoing the views expressed in CDLA/2364/95 said:

“The basis on which this particular species of benefit is payable is that the claimant has some limited ability to walk and the benefit is designed to allow him to exploit that ability by having someone present to assist. If the presence of that person failed to increase the claimant’s capability it would be somewhat pointless. The final aspect of eligibility for the benefit that should be noted is that the supervision and guidance from another person should be required ‘for most of the time’.”

Of course, the point can be made that a judgment of the Court of Appeal in Northern Ireland does not bind the Upper Tribunal in England. In R (SB) 1/90, though, it was pointed out that identically worded provisions operating in Northern Ireland and Great Britain should be interpreted uniformly. This meant, in that case, that a decision of the Court of Appeal in Northern Ireland was to be followed in preference to a differing decision of a Tribunal of Commissioners in England. At least as a matter of comity, it seems to me that Mongan is to be followed.

The upshot of all of the above is that the F-tT was concluding, in effect, whatever else it was concluding, that the appellant did not meet the requirements of section 73(1)(d) of the Social Security Contributions and Benefits Act 1992 because, even with guidance or supervision from another person, she would not be able to take advantage of the faculty of walking out-of-doors. The balance of the authorities is significantly in favour of the proposition that a person who cannot actually take advantage of the faculty, even with guidance or supervision, is not entitled to the lower rate of the mobility component. The approach set out in Mongan as stated above, is to be followed.

It does seem to me it was certainly open to the F-tT, on the evidence before it, to conclude that the appellant could not walk out-of-doors even with the guidance or supervision of another. That is what it did conclude. The evidence was that she did not, as at the decision date, venture out-of-doors at all even though there was an indication that she had, until 2008, been able to go into her garden. She had herself indicated that she had not gone out of her home for many years and those treating her had described her agoraphobia as being severe and had mentioned that she did not go out-of-doors.

The F-tT did, as noted, address section 73(8). However, it need not have done so. It could have simply said the statutory test in 73(1)(d) was not met and concluded its analysis there and then. This does mean that, in fact, the decision in BP does not have relevance and I need not say anything more about it.

The appellant’s representatives grounds have been summarised above. As to the first one, it is necessary to consider the decision in IN. That case involved a claimant who had mental health difficulties and had been refused the lower rate of the mobility component of disability living allowance. The F-tT, in that case, had said “we … found that it was unlikely that the [claimant] would avail himself of the accompaniment of another person in mobilising nor pay much heed to any supervision or guidance”. However, the Upper Tribunal judge pointed out that, in that case, the F-tT had not actually made a finding that supervision or guidance could not even to some extent overcome the danger (danger being the issue in that case) faced by the claimant when walking out-of-doors unaccompanied. So, unlike the case before me, there was not a finding or what amounted to a finding that there could be no benefit gained from guidance or supervision. Accordingly, the case is not on point. The other ground advanced by the representatives contends that the decision was not supported by the oral evidence given to the F-tT but does not give examples of any evidence which, for example, the F-tT has overlooked nor does it explain which findings are incompatible with which matters of oral evidence. The ground is undeveloped. That said, there is no specific direct reference to the appellant’s daughter’s oral evidence in the statement of reasons. Nevertheless, it is clear that it did have regard to the oral evidence. For example, at paragraph 2.5 of its statement of reasons it notes that the appellant rings her daughter on a mobile phone at night a couple of times a week. That appears to relate directly to what the daughter is recorded as having said in the record of proceedings (page 186 of the appeal bundle). Similarly, the F-tT’s finding that she prepares her own meals is reflected in its record of proceedings to the effect that she can make a hot drink and can cook. The oral evidence, in truth, did not suggest that the appellant requires care or supervision to any significant extent nor that she would benefit from guidance or supervision out-of-doors and it cannot be said, in my judgment, that the F-tT’s conclusions are inconsistent with the oral evidence though, in any event, the F-tT was obliged to reach conclusions on the basis of all of the evidence before it, including, amongst other things the written evidence provided by the appellant herself and the medical evidence, not just the oral evidence.

As to the renewal aspect, the F-tT was aware that it was dealing with a decision which had been made in response to a renewal claim. It was right to say it was not bound by the decision made on the appellant’s original claim which had been lodged in 2008. It was right in saying that it did not have to be satisfied that there had been an improvement in the appellant’s condition for it to reach an outcome differing from the original award. There is, though, the very well known decision of R(M) 1/96. It was stated, therein, that the requirement for a tribunal to give reasons for its decision means that it is necessary for such a tribunal to explain why, if that be the case, it is not renewing a previous award unless that is obvious from its findings. Here, with respect to the lower rate of the mobility component, it is obvious that the F-tT considered a matter which appeared not to have been considered when the original decision was made, to the effect that there was no evidence that the appellant would benefit from guidance or supervision to any extent. Effectively, the F-tT had thought of a point that had not been thought of previously. As to the care component, the F-tT clearly found, in effect, that the evidence relevant to the date of the decision it was considering was such that there was no entitlement. That seems to be what it was getting at when it made the point that it was not bound by the earlier decision and does not have to identify any improvement in order to divert from it. It also highlighted the point that the appellant had not claimed to have any care needs when she completed her renewal claim pack. I note that in her original claim pack she had claimed such needs, albeit, not very many. In the renewal claim pack she had also indicated she did not need anyone to keep an eye on her during the day and did not need any help or watching over at night. She had said she did not have any difficulty preparing and cooking a main meal for herself.

In light of all of the above I conclude that it was obvious from the F-tT’s findings why it was departing from the earlier decision.

Finally, I considered whether it might be thought that the F-fT had erred in law in not considering whether to hold a domiciliary hearing. However, no such hearing was sought. The appellant’s daughter was able to and did attend to give evidence. The appellant had set out her circumstances in her renewal claim pack and in a subsequent letter. Her representative has never contended that the F-tT should have considered adjourning to arrange for a domiciliary hearing. Against that background I cannot conclude that it erred in law in failing to do so.

In light of the above, the F-tT did not err in law.

I conclude that the F-tT, in making the decision of 9 July 2013, did not make an error of law. Accordingly, that decision shall stand.