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

A claimant is not entitled to the lower-rate mobility component merely because guidance or supervision could generally alleviate the type of disability from which they suffer. Under section 73(1)(d) of the Social Security Contributions and Benefits Act 1992, the assistance must enable the particular claimant, for most of the time, to take advantage of the faculty of walking out of doors.

Where the evidence establishes that guidance or supervision would not overcome the claimant’s inability to go outside, the statutory test is not met. On a renewal claim, a tribunal is not bound by an earlier award and need not find an improvement in condition, but must explain a non-renewal unless its findings make the reason obvious.

The appellant had previously received the lower-rate mobility component and middle-rate care component of disability living allowance. On renewal, the Secretary of State decided that neither component was payable. The First-tier Tribunal dismissed her appeal, finding that she had no qualifying care needs and that her severe agoraphobia meant she would not go outdoors or derive benefit from guidance or supervision.

The appellant appealed to the Upper Tribunal. She contended that the First-tier Tribunal had overlooked IN v Secretary of State for Work and Pensions (DLA) [2013] UKUT 0249 (AAC), had reached findings inconsistent with oral evidence, and had inadequately explained its departure from the earlier award. The central issue was whether she satisfied the lower-rate mobility condition despite her inability to leave home.

1. Appeal dismissed. The First-tier Tribunal made no error of law, and its decision of 9 July 2013 was to stand.

2. The First-tier Tribunal had imperfectly conflated section 73(1)(d) and section 73(8) of the Social Security Contributions and Benefits Act 1992. Properly understood, however, it had found that the appellant would not take advantage of walking outdoors even if another person gave guidance or supervision. That finding was sufficient to determine entitlement under section 73(1)(d).

3. The statutory inquiry concerns the effect of guidance or supervision on the particular claimant. The lower-rate mobility component is intended to assist a person with limited ability to walk to use that ability outdoors. It is not payable where proposed guidance or supervision would not enable the claimant to go out or make use of walking. The Upper Tribunal followed the approach in Mongan v Department of Social Development [2005] NICA 16.

4. The evidence entitled the First-tier Tribunal to find that the appellant’s severe agoraphobia prevented her from going outdoors, even with assistance. The decision in IN v Secretary of State for Work and Pensions (DLA) was distinguishable because, in that case, the tribunal had not found that guidance or supervision could not overcome the relevant danger.

5. On renewal, the tribunal was not bound by the 2008 award and did not need to identify an improvement in the appellant’s condition. Applying R(M) 1/96, the reasons for declining renewal were sufficiently apparent from its findings: in particular, the absence of evidence that assistance would enable outdoor walking and the absence of claimed qualifying care needs.

• Upper Tribunal (Administrative Appeals Chamber): Appeal dismissed. The First-tier Tribunal’s decision was confirmed as involving no error of law.
• First-tier Tribunal: On 9 July 2013, dismissed the appellant’s appeal against the Secretary of State’s decision not to renew either component of disability living allowance.
• Secretary of State for Work and Pensions: On 2 November 2012, decided that entitlement to disability living allowance would end after the previous award expired.