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You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> [1997] NISSCSC C71/97(DLA) (9 June 1998) URL: http://www.bailii.org/nie/cases/NISSCSC/1997/C71_97(DLA).html Cite as: [1997] NISSCSC C71/97(DLA) |
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[1997] NISSCSC C71/97(DLA) (9 June 1998)
Decision No: C71/97(DLA)
I consider there was no error of law in the decision of the Tribunal and I dismiss the appeal.
(1) The Tribunal had erred in not awarding the low rate mobility component as the claimant required supervision when walking and same could be constituted by reassurance, support and encouragement. The Tribunal had decided active measures were required.(2) The Tribunal failed to distinguish between "familiar" and "unfamiliar" routes.
(3) The Tribunal failed to take account of the claimant's psychological requirements
"The claimant likes to be accompanied when out of doors. She is aware
of her surroundings and does not need to be directed in any way. She sometimes becomes anxious and would have to stop unless this feeling
passes before she could continue further. She does not require to be monitored and if she felt anxious out of doors could communicate this
to the person accompanying her. The majority of the Tribunal do not
find that there is any evidence of clinical panic attacks.
Miss E…, dissenting, accepts that the claimant suffers from panic
attacks when walking out of doors and becomes confused when these
occur, and requires reassurance and assistance which amounts to
supervision during these episodes from the person accompanying her".
"The majority of the Tribunal considered that, although the claimant
sometimes experienced anxiety when out of doors, she did not experience clinical panic attacks which gave rise to a need for guidance or supervision. She did not require to be monitored for signs of any
need of intervention so as to prevent her ability to take advantage
of the faculty of walking being compromised. She derives reassurance
from the person accompanying her but no active measures from that
person are required. We have applied CDLA/42/94. We consider that
the claimant's ability to walk out doors without guidance or
supervision is the same whether on familiar or unfamiliar routes."
"... there is supervision of a claimant's walking when another
person is accompanying the claimant and is watching over her, in the
sense of monitoring her physical or mental or emotional state for
signs of something that might require some more positive action
by the person to enable or encourage the claimant to continue
walking (my underlining) or monitoring the route ahead for obstacles,
dangers or places or situations which might upset or disquiet the
claimant or otherwise affect her adversely. Such monitoring is
supervision even though it never results in the need for more active
action. Such action, which might still be essentially precautionary,
can also come within the meaning of supervision. The sorts of things
I have in mind here are encouraging, persuading or cajoling the
claimant, or providing distraction from possibly alarming situations
by conversation. I stress again that these are merely examples
of what in my view comes within the ordinary meaning of "supervision"
and I am not purporting to give a definition to be applied
mechanically to all cases. In different circumstances other kinds
of action may be supervision."
"Supervision, in the context of section 73(1)(d), means accompanying
the claimant and at the least monitoring the claimant or the
circumstances (my underlining) for signs of a need to intervene so as
to prevent the claimant's ability to take advantage of the faculty of
walking being compromised."
At sub-paragraph (l) the Commissioner states:-
"The fact that the claimant derives reassurance from the presence of the other person does not prevent action which would otherwise fall (my underlining) within point (j) or (k) from being guidance or supervision."
"The adjudication officer refers me to several passages from
CDLA/042/94 which he regards as supporting the claimant's appeal.
Those are the passages in paragraph 6 above and paragraphs 17
to 20 of CDLA/042/94. Paragraphs 17 to 20 deal with the meaning
of "guidance" and "supervision" as used in section 73(1)(d). In
those paragraphs the Commissioner expressed the view that "guidance"
could involve physically leading or directing a claimant or oral
suggestion or persuasion. "Supervision" he regards as including
encouraging, persuading or cajoling the claimant, providing
distraction from possible alarming situations or the mere provision
of reassurance by the presence of the helper."
I do not at all think that that is what the Commissioner said in CDLA/042/94. At paragraph 18 of CDLA/042/94 that Commissioner says -
"Supervision may be passive in nature, but it is not constituted by
mere presence. In the context of the care component of DLA and
of attendance allowance it implies sufficient monitoring to be
able to detect signs of a need for assistance."
At paragraph 19 the Commissioner says:-
"... there is supervision of a claimant's walking when another person
is accompanying the claimant and is watching over her, in the sense
of monitoring her physical or mental or emotional state for signs
of something that might require some more positive action by the
person to enable or encourage the claimant to continue walking or
monitoring the route ahead for obstacles, dangers or places or
situations which might upset or disquiet the claimant or otherwise
affect her adversely."
At paragraph 22 the Commissioner says:-
"Supervision, in the context of section 73(1)(d), means accompanying
the claimant and at the least monitoring the claimant or the
circumstances for signs of a need to intervene."
It seems to me apparent from the above that the Commissioner in CDLA/042/94 was not of the view that mere accompaniment was enough, he was of the view that there had to be monitoring. If there was no such monitoring the mere fact that the claimant derived reassurance from the mere accompaniment would be irrelevant. If the accompanying person did not have to carry out some element of monitoring then this would not constitute supervision. The fact that a claimant does not derive reassurance from the mere presence of another person is irrelevant to the meaning of supervision in s.73(1)(d).
In CDLA/2364/1995 the Commissioner states at paragraph 16(1):-
"It seems to me that what can be taken from the Mallinson decision
is that "supervision" in the context of section 64(2)(b) and
72(1)(b)(ii) includes any conduct on the part of a person other than
the claimant which avoids substantial danger to the claimant or
others and so achieves the purpose for which benefit is paid under
those two provisions. Accordingly I can accept that "supervision"
in the context of section 73(1)(d) includes any conduct on the
part of another person which enables a claimant who could not
otherwise do so to exercise out of doors his faculty of walking.
Therefore "supervision" can include something as non interventional
as the reassurance which in some cases a claimant derives from the
company of another person when he is out of doors."
Having read the judgments in Mallinson (and in particular the lead judgment of Lord Woolf) it does not appear to me that that construction can be taken. The Commissioner in CDLA/2364/94 does not cite any actual part of the Mallinson judgment but it is likely he was relying on page 30(6) paragraph (a) especially the following sentence "the attention is in connection with the bodily function if it provides a substitute measure of providing what the bodily function would provide if it were not totally or partially impaired". Lord Woolf was there dealing with the meaning of "in connection with" in the care component conditions, not with the meaning of either attention or supervision. The meaning of attention was not altered by the circumstances in which it was deemed to be in connection with a bodily function. By analogy the meaning of "supervision" remains the same whatever its purpose.
I can see no indication that the Tribunal did not consider encouragement reassurance etc as included in supervision, quite the reverse as it applied CDLA/042/94. The Tribunal in its reasons was simply making the distinction between a person who finds the mere company of another reassuring without that other having to do any monitoring and the situation where the companion has to monitor and may actually have to actively have to act to reassure the person. In light of CDLA/042/94 that is a proper distinction to make.
(Signed): M F Brown
COMMISSIONER
9 June 1998