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Neutral Citation Number:
Reported Number: R(DLA) 4 01
File Number: CDLA 714 1998
Judge/Commissioner: Three-Judge Panel / Tribunal of Commissioners
Date Of Decision: 15/06/2000
Date Added: 26/03/2002
Main Category: DLA, MA: mobility
Main Subcategory: guidance or supervision
Secondary Category:
Secondary Subcategory:
Notes: Mobility component - lower rate - whether guidance or supervision also constituting attention or supervision for the purposes of the care component may be taken into account Mobility component - pre-lingually deaf - whether guidance or supervision arising from fear and anxiety may be considered In each of these four cases it was accepted that the claimant was, by any criteria, severely disabled, one of the claimants suffering from post-traumatic stress disorder, one suffering from epilepsy, and the other two having been profoundly deaf since birth. The question of whether severity of disablement is to be treated as a separate and additional test of entitlement or is to be judged by reference to the statutory criteria relating to care or mobility needs and as part of those criteria was therefore not in issue. In each case the claimant had been awarded some rate of the care component of disability living allowance. The main issue in these appeals, and one which had caused a divergence of views amongst Commissioners, was whether supervision or attention requirements which qualify or which might go towards qualifying a claimant for an award of the care component under section 72 of the Social Security Contributions and Benefits Act 1992 should or should not be taken into account when assessing the need for supervision or guidance under section 73(1)(d) of that Act. The other issues were whether the words "cannot take advantage of" should be subject to some implied qualification and, in the cases involving the pre-lingually deaf claimants: (i) whether any attention with the bodily function of hearing which counted towards potential entitlement to the care component should be disregarded; (ii) whether a pre-lingually deaf person with consequent severely impaired comprehension of English, who was too frightened or nervous to walk on unfamiliar routes and never did so unaccompanied, could ever be entitled to the lower rate of mobility component; and (iii) whether "guidance" included assistance with communication in order to ask for directions. Held, in each case allowing the appeal, that: 1. in determining whether a claimant cannot take advantage of the faculty of walking out of doors without guidance or supervision for most of the time, the fact that the guidance or supervision necessary, or elements of that guidance or supervision, may also constitute attention or supervision which qualifies, or could go towards qualifying, the claimant to entitlement to the care component is to be ignored (paragraph 14, and paragraphs 11 and 13 for the reasons for rejecting the submissions to the contrary on behalf of the Secretary of State) and Commissioners' decisions to the contrary, including CDLA/757/1994, are not to be followed; 2. the application of the words "cannot take advantage of" in particular cases is left to the good sense of decision-makers and tribunals (para. 15); 3. in relation to deaf claimants, and in particular the pre-lingually deaf: (i) attention with the bodily function of hearing is not to be disregarded (para. 17); (ii) fear or anxiety (not in itself amounting to a physical or mental disability) which results from the disablement may be taken into account (para. 18); and (iii) in some cases of a limited ability to communicate and to receive information, a need for guidance from another person most of the time may be made out (para. 19). In case CDLA/2560/1998 the tribunal substituted its own decision awarding lower rate mobility component in addition to the existing award of middle rate care component (which was not in dispute); the tribunal remitted each of the other three cases for rehearing by a new tribunal.
Decision(s) to Download: dla4_01.doc dla4_01.doc