DB v Secretary of State for Work and Pensions (DLA)

A person aged 65 or over whose current award of the mobility component is at the lower rate cannot obtain the higher rate through supersession of a post-65 decision. Under Social Security (Disability Living Allowance) Regulations 1991, Schedule 1, paragraph 6 modifies the statutory scheme so that the mobility component remains payable only at the lower rate, even if the person could otherwise satisfy the higher-rate conditions.

An error of law does not require a tribunal decision to be set aside where the only lawful outcome is the same. In an appropriate case, an inquisitorial tribunal must consider whether further evidence or participation measures are needed, but a domiciliary hearing will be exceptional. Fairness requires a proportionate balance between participation, the importance and complexity of the case, and the costs and resources involved.

The claimant had received disability living allowance, including the lower-rate mobility component, before reaching age 65. Later applications to supersede his award did not increase the mobility component. Following a further application in 2014, the Secretary of State refused supersession and the First-tier Tribunal dismissed the claimant’s appeal.

The First-tier Tribunal treated the issue as whether the claimant had been virtually unable to walk before his 65th birthday in 2004. On appeal, the claimant contended that the tribunal should have obtained GP records and considered a domiciliary hearing. The Upper Tribunal considered both the statutory effect of the post-65 mobility rules and the procedural complaints.

1. Appeal dismissed. The First-tier Tribunal adopted an erroneous legal approach by investigating whether the claimant met the higher-rate mobility conditions before reaching 65. That error was immaterial because the claimant’s current award stemmed from a post-65 supersession decision, and no lawful supersession could increase the mobility component above the lower rate.

2. Section 75 of the Social Security (Contributions and Benefits) Act 1992 restricts entitlement after age 65, subject to the Regulations. Schedule 1, paragraph 1 to the Social Security (Disability Living Allowance) Regulations 1991 can preserve scope for revision or supersession where a relevant change occurred before age 65. However, where the decision under challenge is a post-65 award, paragraph 2 brings the case within the later Schedule provisions.

3. Paragraph 6 applied because the claimant was entitled to lower-rate mobility after attaining 65 and sought supersession. Paragraph 6(2) modifies section 73(11) so that the weekly mobility rate is the lower rate. Thus, even proof that the claimant had qualified for the higher rate could not produce an increased award. Setting aside the First-tier Tribunal decision merely to substitute the same result would be futile.

4. The procedural observations were obiter. An inquisitorial tribunal has, in an appropriate case, a freestanding duty to consider obtaining material evidence or facilitating participation. It need not take such steps automatically for every unrepresented appellant, but must remain alert to a genuine lack of understanding.

5. A domiciliary hearing is not routinely required where travel is difficult. Public-hearing requirements, practical arrangements, cost, and available alternatives such as transport or telephone participation are relevant. Under rule 2 of the procedural rules, the tribunal must reach a proportionate and fair balance; resources may be considered but cannot override the interests of justice. On the facts, the paper determination was fair and sustainable.

• Upper Tribunal (Administrative Appeals Chamber): The claimant’s appeal was dismissed. The First-tier Tribunal made an error of law in its approach, but the error was not material because no increase above lower-rate mobility was legally available.

• First-tier Tribunal: Sitting at Fox Court, it dismissed the claimant’s appeal on 28 November 2014 under reference SC 242/14/04704.