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You are here: BAILII >> Databases >> Northern Ireland - Social Security and Child Support Commissioners' Decisions >> CF-v-Department for Social Development (DLA) [2012] NICom 281 (21 May 2012) URL: http://www.bailii.org/nie/cases/NISSCSC/2012/281.html Cite as: [2012] NICom 281

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CF-v-Department for Social Development (DLA) [2012] NICom 281

Decision No: C42/11-12(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 DISABILITY LIVING ALLOWANCE Application by the claimant for leave to appeal and appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 4 February 2011 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal from the decision of the appeal tribunal sitting at Belfast on 4 February 2011, leave having been granted by me on 11 January 2012.
2. I allow the appeal and set aside the decision of the appeal tribunal.
3. In accordance with Article 15(8)(a)(ii) of the Social Security (NI) Order 1998, I consider it expedient in the circumstances to make further findings and give the decision which I consider appropriate in the light of them.
4. I find that the applicant satisfies the conditions of entitlement to the lowest rate of the care component and the lower rate of the mobility component from 30 November 2010 to 29 November 2012 inclusive.
5. My reasons for this are set out below.

REASONS

Background circumstances

6. The applicant had previously been awarded disability living allowance (DLA) at the lower rate of the mobility component and the middle rate of the care component for a five year period until 29 November 2010. He made a renewal claim which resulted in a decision dated 29 September 2010 disallowing all entitlement.
7. He appealed to a tribunal which heard the appeal on 4 February 2011. The appellant did not attend but was represented by his sister. The tribunal considered the Department's submission, including a general practitioner (GP) factual report and an examining medical practitioner (EMP) report, the applicant's medical records and the previous papers relating to the applicant's claim.
8. The appeal tribunal allowed the appeal to the extent that they awarded the lowest rate of the care component for a period of two years from 30 November 2010 to 29 November 2012 inclusive. However, they disallowed the appeal relating to the mobility component.
9. The applicant sought a statement of reasons for the tribunal's decision on 14 February 2011. This was issued to him on 12 May 2011 together with a written record of proceedings.
10. He applied for leave to appeal to the Social Security Commissioner from the legally qualified member of the appeal tribunal, who refused leave to appeal on 28 June 2011, giving reasons.
11. The applicant renewed the application for leave to appeal directly to the Office of the Social Security Commissioners on 11 July 2011.

Grounds of application for leave to appeal

12. The applicant's grounds of application for leave to appeal are that the appeal tribunal erred in law in relation to its application of the conditions of entitlement to the lower rate of the mobility component of DLA and that the reasons for the appeal tribunal's decision are inadequate.
13. Specifically, by the first ground, it is submitted by the applicant that the appeal tribunal focused on the applicant's difficulties in walking on routes which are familiar to him but had not considered his difficulties on unfamiliar routes.
14. By the second ground, it is submitted that, while the appeal tribunal accepted the limitations of the applicant giving rise to an entitlement to the care component, it failed to consider the effects of his social withdrawal on mobility, and failed to explain why medical evidence of his difficulties was not accepted.

The Department's observations

15. The Department was invited to make observations on the applicant's grounds. For the Department, Mr Kirk submits that the tribunal had clearly considered all the evidence before it and, based on the evidence, concluded that there were no physical or mental factors that led to the applicant needing guidance or supervision when walking outdoors. This was in relation to both familiar and unfamiliar routes. Mr Kirk submits that, as well as the medical evidence before it, the tribunal took account of the applicant's ability to drive and what this ability indicated. He submitted that the tribunal had in fact applied the correct statutory test and had not erred as contended in relation to the first ground.
16. In relation to the second ground Mr Kirk submits that there is no link between the tribunal's award for attention needs and his contended guidance and/or supervision needs out of doors. He further submits, as to social withdrawal, that the issue for the tribunal was the applicant's need for guidance and/or supervision out of doors. He says that it was difficult to see how social isolation would lead to such a need unless it could be established that this could be overcome by prompting and/or encouragement to go out of doors. He submits that the evidence would suggest that the applicant had chosen to isolate himself and that there was no factor preventing him from going outdoors. He submits that the tribunal had correctly focused upon the need for guidance and/or supervision out of doors. As the tribunal found that there were no physical or mental factors that led to the applicant needing guidance or supervision when walking outdoors, it was not required to make any specific findings regarding the issue of social isolation. He submits that the tribunal has not erred as contended in the second ground.
17. Although disputing that the applicant had made out an arguable case in relation to his two grounds, Mr Kirk makes a further submission. He points out that the record of proceedings for the hearing dated 4 February 2011 shows that the applicant's sister attended the hearing on his behalf and queried some of the comments recorded by the EMP. At paragraphs 14 to 17 of page one of the record of proceedings the following exchange is recorded:

"Sister

Questions some of the comments recorded by EMP.

Dr Elwood

Reads from EMP report

Sister

Brother had been up all the night before and therefore was hyper –vigilant. Can deceive doctors."

18. Mr Kirk submits that, once concerns about the accuracy of what the EMP had recorded had been raised, there was an onus upon the tribunal to address them. He submits that the tribunal had failed to provide any explanation as to how it viewed the evidence of the applicant's sister regarding the comments contained in the EMP report or indeed if it asked her to state which questions she had regarding this report. In addition the tribunal failed to address the comment that the applicant could "deceive doctors". Mr Kirk submits that this was potentially a very significant statement, as in this case the EMP had accepted the applicant's account regarding his current mental health condition. On this basis he submits that the tribunal had erred in law in failing to investigate the contentions made regarding the EMP report, referring to paragraphs 17 to 20 of R3/01(IB) (T).

The applicant's response

19. Mr Hatton of Law Centre NI responded to the observations. He accepts that the appeal tribunal had erred in law on the basis identified by Mr Kirk. He maintains that the grounds as originally submitted established errors of law on the part of the appeal tribunal.

The tribunal's decision and its reasons

20. The tribunal's decision in relation to the refusal of the high rate mobility component and to the award of the lowest rate care component was not in dispute. The sole issue was the tribunal's approach to the lower rate of the mobility component.
21. The tribunal's statement of reasons for its decision placed weight on the applicant's recorded statement to the effect that he could walk unaccompanied to the local shop to buy groceries and newspapers. It further placed weight on the EMP's finding of no mental health problems apart from social withdrawal. It further placed weight on the applicant having recently recovered permission to drive. The tribunal stated that it "cannot identify any physical or mental health condition which reasonably requires him to have guidance or supervision walking outdoors". Subsequently, the reasons given by the legally qualified member for refusal of leave augmented the statement of reasons. I shall discuss those reasons below.

The Hearing

22. I held an oral hearing of the appeal. The applicant was not present, but was represented by Ms Loughrey of Law Centre (NI). The applicant's sister, who had given evidence to the tribunal, was present. The Department was represented by Mr Kirk.
23. Ms Loughrey made submissions based on the grounds of application and relied upon the case summary which she had prepared. In short, she submitted that the tribunal had erred in law in two respects.
24. Firstly, it had not made findings as to the applicant's ability to take advantage of the faculty of walking on unfamiliar routes. It had made findings about the applicant being able to go to a local shop on a daily basis. It was not stated whether the tribunal treated this as a familiar or unfamiliar route, but it was most reasonably viewed as a familiar route. However, Ms Loughrey submitted, the tribunal should have made findings about any difficulties the applicant might have in the context of unfamiliar routes.
25. Even had the applicant been found to be able to walk out of doors on familiar routes, as the tribunal appeared to have determined, the ability to walk on routes which were familiar to him fell to be disregarded under the legislation.
26. She further submitted that the applicant lacked insight as to his condition, to the extent that he had regularly avoided or refused medical intervention. His family members were reluctant to have him compulsorily admitted to hospital for treatment, as they had been advised that a more favourable outcome was likely where a patient had voluntarily admitted himself. While his GP recorded that he "has insight", she submitted that the GP had only seen him once.
27. Ms Loughrey further submitted that a factual error had arisen in the tribunal's record of proceedings. While the applicant had five convictions relating to driving prior to 1995, he had never been disqualified from driving. In the last three years in an effort to motivate him to go out more, his family had encouraged him to reapply for his licence, which had lapsed. Due to an incident of erratic behaviour after the date of hearing his licence was now likely to be revoked.
28. Secondly, she submitted that the tribunal had accepted the applicability of the lowest rate care component, based on the evidence of the applicant's sister. She submitted that it was implicit that his sister's evidence in relation to the applicant's mental health was accepted in this respect, and it was therefore unclear why the tribunal had rejected the evidence of the applicant's sister regarding his difficulties with going outdoors.
29. Mr Kirk addressed the applicant's grounds of appeal. He submitted that the tribunal had applied the correct test. There was a conflict in the evidence where the applicant's GP had stated that he did not go out at all, whereas he was recorded as telling the EMP that he went out to a local shop and garage. The tribunal had also taken into account an ability to drive. However, it was arguable that the tribunal should have investigated the question of ability to walk out of doors a bit further.
30. In relation to the lowest rate care component, the evidence of the applicant's sister was a decisive factor. Her evidence had been accepted by the tribunal. However, entitlement to lower rate mobility could not be "read across" from lowest rate care.
31. He noted from the record of proceedings that the applicant's sister had raised concerns about how the applicant presented himself to doctors. He noted that the medical member of the tribunal had read extracts of the EMP report, and that the applicant's sister had stated that he "deceives doctors". He submitted that this raised a question which needed to be addressed by the tribunal, but it had not been resolved. He submitted that this was an error of law analogous to that in R3/01(IB) (T), which concerned a failure of a tribunal to resolve a dispute over the content of an EMP report.
32. Ms Loughrey similarly submitted that the tribunal was faced with a conflict of evidence between what had been recorded as having been said by the applicant to his GP and the EMP. The applicant's sister had challenged the reliability of what was said to the EMP, but no reasoned finding was made to resolve that conflict once it had been raised.

The reasons for refusal of leave to appeal

33. When refusing leave to appeal, the legally qualified member of the appeal tribunal had added a further brief statement to the COMM 12 pro forma. This is a document approved by the President of Appeal Tribunals for recording decisions on applications for leave to appeal made under regulation 58(4) of the Social Security and Child Support (Decisions and Appeals) Regulations (NI) 1999. The statement amounted to the legally qualified member's reasons for the refusal of leave, but added some clarification to the tribunal's statement of reasons.
34. I invited comments on the desirability of the Social Security Commissioner taking into account the reasons of the legally qualified member for refusing leave to appeal when seeking to understand the tribunal's decision. Ms Loughrey submitted that it was not appropriate to take into account clarifications of the reasons arising from further statements in a refusal of leave to appeal, as this may lead to identification of further arguable errors of law which could not then be the subject of an application to the legally qualified member for leave to appeal.
35. I am conscious that where there is a statutory duty to give reasons, the adequacy of the reasons is in itself a condition of the lawfulness of the decision. Therefore, giving a statement of reasons under regulation 53 of the Social Security (Decisions and Appeals) Regulations (NI) 1999 which fails to explain the tribunal decision is in itself an error of law.
36. In the context of judicial review, the Administrative Court in England has held that only in exceptional circumstances will subsequent evidence of reasons for a decision be accepted (Nash v Chelsea College of Art [2001] EWHC Admin 538). Subsequent cases have suggested that this is too widely expressed. In R v Merton London Borough Council [2003] 4 All ER 280, Stanley Burnton J (as he then was) indicated that "reasons that merely elucidate reasons given contemporaneously with a decision will normally be considered …". The relevant authorities of the Northern Ireland High Court are consistent with this approach (see eg Harkin, Re Application for Judicial Review [2001] NIQB 6).
37. The Commissioners have taken a similar view. For example, in R (M) 2/78 at paragraph 13 it can be seen that the former GB Chief Commissioner held that reasons given upon a refusal of leave to appeal, while they could not be incorporated into the reasons for the decision, could serve to explain it.
38. The legally qualified member in refusing leave to appeal is exercising discretion in an individual capacity, whereas, in preparing the statement of reasons, she is a member of a three-member tribunal and speaking for all the tribunal members. Therefore the statement of reasons and the reasons for refusing leave come from distinct legal entities. Nevertheless, they are framed by the same individual. I consider that the approach taken in R (M) 2/78 is in accordance with the principles applied in judicial review proceedings.
39. I note that in AS v SSWP (ESA) [2011] UKUT 159 regard was had to similar questions in the context of the rule 36 of the First-tier Tribunal (Social Entitlement Chamber) Rules 2008. In that case, Judge Jacobs decided that adding to the reasons by way of the rule 36 slip rule was an error of law. Nonetheless, he proceeded to take account of additional reasons given by the First-tier Tribunal judge in deciding the legality of the decision. That case was decided under the different procedural regulations which exist in Great Britain. It involved the addition of nine lines of text to the reasons dealing with two areas in which the applicant submitted the tribunal had erred in law. This appeared to be an instance of the legally qualified member addressing the two issues in the reasons for the first time, rather than clarifying the reasons. I am not dealing with the same situation or the same procedural rules and I do not find the Judge's decision of assistance in this particular case.
40. I consider that, while caution should be exercised, reasons for refusal of leave can properly be considered in appropriate cases, to the extent that they elucidate and do not seek to augment or to vary the existing statement of reasons. I therefore have had regard to the legally qualified member's reasons for refusing leave to appeal.
41. In the further reasons, the legally qualified member clarified that the tribunal considered that the applicant did not require supervision or guidance walking outdoors whether on familiar or unfamiliar routes. The tribunal could not identify any physical or mental health condition which reasonably requires him to have guidance or supervision walking outdoors. The legally qualified member added that the GP in his factual report "incorrectly stated that (the claimant) does not go out. He does go out to local shops and this was noted by the Tribunal as recorded in the medical records. The GP's statement is not factually accurate but is not relevant to the Tribunal decision as stated above."
42. In the context of the present appeal these comments are helpful and have clarified the reasoning of the tribunal. They suggest that the issue of whether the applicant actually goes out or not was not material to the tribunal's reasoning. As I understand it, the tribunal reasoned that social withdrawal was a condition which did not give rise to any guidance or supervision need out of doors.

Assessment of the submissions

43. The tribunal has a difficult task at the best of times. A particularly difficult type of case is that concerning mental disablement where the medical condition experienced by the appellant is a condition, perhaps like depression, where symptoms are on a continuum of severity and can affect individuals very differently. Oral evidence and the presentation of the appellant can be very important in the assessment exercise carried out by the tribunal. Therefore difficulty is compounded when the appellant does not attend a hearing to enable the tribunal to assess him, but is represented by a family member or friend. I have considerable sympathy for the tribunal which heard the present appeal because of the difficulty of the task before it.
44. As is well established, the tribunal has an inquisitorial function. Arising from that function it has an obligation to investigate and make findings on matters which are in dispute. Here there was a conflict in the evidence concerning the applicant's ability to go out of doors, represented by hearsay evidence in the form of the applicant's statements to the EMP and GP, and the oral evidence of his sister questioning those statements and giving a contrary account.
45. In R3/01(IB) (T) the Tribunal of Commissioners considered a case where the findings in the report of a medical assessor were challenged by the appellant. The appellant on appeal to the Commissioners submitted that the substantive issues raised had not been dealt with. At paragraphs 17-19 the Tribunal of Commissioners said:

'17. We are in agreement with both representatives that the reasoning is inadequate in this case. The claimant set out a very detailed submission in the appeal letter which was referred to again at the Tribunal hearing as to claimed inaccuracies in the Examining Doctor's report. This was obviously a live issue in the case. It was equally obvious that the Tribunal did not accept the Examining Doctor's report in full. However, it was a substantial and particularised part of the claimant's argument that the observations of the Examining Doctor and indeed his clinical findings were inaccurate. The Tribunal has not commented in any way on these contentions made by the claimant and, in a situation where it may well be (though the reasoning is not clear in that respect) that the Tribunal relied to some extent at least on the Examining Doctor's observations and report, it has not adequately addressed the claimant's contentions.

18. We consider that in this particular decision a reasonable person reading the decision would not find the reasons sufficient to explain it. A very substantial part of the claimant's submission was not addressed.

19. In general terms we would recommend to Tribunals the practice of identifying the issues which are specifically and expressly or by clear implication raised by the appeal letter. Often there will be no specific issues raised other than that the claimant disagrees with the decision or considers it to be wrong with no reasons given. In other cases grounds of complaint will be put forward but will be worded in vague or very general terms. For example, that the time allowed was insufficient or that the doctor concerned lacked competence. In all such cases the Tribunal by hearing the case will adequately deal with the appeal. That was not so in this case. Here very specific issues were raised.'

46. I consider that the circumstances of the present case are analogous to those in R3/01(IB) (T) in the sense that an issue arose about the accuracy of the EMP report. The circumstances here were rather different to R3/01(IB) (T), as this was not a simple direct challenge to the clinical findings.
47. The EMP recorded that the applicant said that he "can walk up to local shops and garage to get milk and cigarettes". Similarly, an entry in the applicant's medical records noted that the applicant went out every day to the shops. These were hearsay statements based on the applicant's representation of his own daily activity. However, in the absence of the applicant, his sister disputed this at hearing. Her evidence was that the applicant could cross the road to the shop only if his nephew was with him. She raised the issue that the applicant "deceives doctors".
48. The applicant's attendance with his GP was in the context of his mother and sister expressing concern about the applicant's social withdrawal and the GP asking to see him at the surgery. The applicant is recorded as saying to the GP that he went out every day to the shops, did not hear voices and did not have any problems. The part about not having any problems was clearly untrue. Indeed, the subsequent factual report from the GP states "long history of severe social withdrawal – not leaving the house". While the legally qualified member has characterized this as an incorrect statement, it can equally suggest that the GP held an opinion which was contrary to what was stated to him by the applicant and expressed this in his factual report.
49. The tribunal had found the applicant's sister to be a reliable witness as to his care needs. She related a history of the applicant's refusal to engage with medical professionals over a long period, to the extent that his family considered requesting that he might be "sectioned" under the Mental Health Order because of the severity of his symptoms. Where findings were to be made based on the hearsay statements of the applicant to the EMP and his GP, I consider that her submission that the applicant "deceives doctors" – i.e. misrepresents his symptoms to doctors – required further investigation.
50. I accept the submission of Mr Kirk that this disputed matter required investigation and finding of fact. I do not see that the challenge to the evidence raised by the applicant's sister has been addressed and resolved. I consider that, in all the circumstances of this case, the tribunal has erred in law by not addressing it.
51. However, the legally qualified member, in the reasons for refusing leave to appeal, has clarified that the issue of whether the applicant was able to walk out of doors unaccompanied was not material to the tribunal's decision. This suggests that, had the tribunal investigated this conflict of evidence, and made findings to the opposite effect - i.e. that the applicant did not walk to the shops daily but stayed at home due to social withdrawal - this would not have made any material difference to the outcome. This position needs to be examined further in the context of the legislation.

Legislative provisions relating to the low rate of the mobility component

52. The relevant legislative provisions are as follows:-

Social Security (Contributions and Benefits) Act (Northern Ireland) 1992

'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—

…

(d) he is able to walk but is so severely 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.'

Disability Living Allowance Regulations (Northern Ireland) 1992

Regulation 12—

'(7) For the purposes of section 73(1)(d) a person who is able to walk is to be taken not to satisfy the condition of being so severely disabled physically or mentally that he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time if he does not take advantage of the faculty in such circumstances because of fear or anxiety.

(8) Paragraph (7) shall not apply where the fear or anxiety is—

(a) a symptom of a mental disability; and

(b) so severe as to prevent the person from taking advantage of the faculty in such circumstances.'

Was the error of law a material error?

53. The tribunal concluded that the applicant does not need supervision or guidance out of doors, as it could not identify any physical or mental health condition which reasonably requires him to have guidance or supervision walking outdoors. This suggests one of two scenarios, or possibly, both. These are that the tribunal considered either that the applicant did not reasonably require guidance or supervision in any circumstances arising from his social withdrawal, or that social withdrawal was not a physical or mental condition.
54. Turning to the latter proposition first, it is well established that for the purposes of the care component or the lower rate mobility component there is no requirement for a claimant to show a specific diagnosis of a medical condition (see the discussion in R (DLA) 3/06 from paragraphs 25 to 45). I understand that "social withdrawal" is not in itself a recognised mental condition such as might be categorised in the World Health Organisation's ICD-10. It may well be a symptom of some other undiagnosed mental health condition. As far as each of these is concerned, I am not qualified to comment. But it is not necessary that either should be the case. All that is required is that the applicant has a functional disability, physical or mental. Social withdrawal is a functional disability. As it arises from the applicant's own behaviour, it is necessary to ask whether it is within his power to avoid behaving as he did. If not, he would be disabled within the terms of section 73(1) (d) (see paragraph 40 of R (DLA)3/06)). The resulting question would then be whether his social withdrawal gave rise to a reasonable requirement for guidance or supervision.
55. Therefore, if the tribunal required the applicant to demonstrate a diagnosis of a physical or mental condition as a prelude to consideration of entitlement to the lower rate mobility component, this would be erroneous in law. However, if this was not the approach taken, and the tribunal assessed instead that the applicant, despite his condition, did not require guidance or supervision, then it is necessary to address the scope of those words.
56. The test for the lower rate of the mobility component is not that an individual cannot walk without guidance or supervision, but rather than that an individual cannot take advantage of the faculty [of walking] without guidance or supervision. As stated by Commissioner Mesher in CDLA/42/94 (which was subsequently endorsed by Commissioner Brown in C67/98(DLA), "the meaning of guidance or supervision must be considered within the context of action which is aimed at enabling the claimant to take advantage of the faculty of walking despite the limits imposed by her physical or mental condition… ". Commissioner Mesher also said that "guidance means the action of directing or leading … for example be constituted by physically directing or leading the claimant or by oral direction, persuasion or suggestion". He said that "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 so as to prevent the claimant's ability to take advantage of the faculty of walking being compromised ….". I agree with this and consider that it is appropriate, in cases of claimants whose mental health or learning disability presents an obstacle to taking advantage of the faculty of walking, that aspects such as persuasion, suggestion and encouragement are taken into account at whatever stage.
57. The test for lower rate mobility component is a test of the ability of a claimant to take advantage of the faculty of walking out of doors. I consider that action aimed at enabling a claimant to take advantage of the faculty of walking out of doors must logically include any guidance or supervision needed to initiate the process of walking, whether or not that is given indoors before a journey is initiated. I have not been shown any authority to the contrary, as this issue has not been fully argued before me in the course of the present hearing. However, even if I am wrong about this, it does not affect my decision in the present appeal.
58. Guidance and supervision has been held by the GB Commissioners to involve concepts such as continuous reassurance and encouragement (R(DLA)3/04), provided that this is more than simply keeping another company. Similarly, the Court of Appeal in Northern Ireland in Mongan [2005] NICA 16 has indicated that guidance or supervision must enhance the claimant's ability to take advantage of their capacity for walking. It involves more than mere accompaniment and reassurance. However, as Commissioner Mesher has said,

"the fact that the claimant derives reassurance from the presence of the other person does not prevent action … from being guidance or supervision" (CLDA/42/94, paragraph 22(l)).

59. Each case will turn on its own facts. However, the elucidation of the tribunal's reasons by the legally qualified member shows that it found that it did not matter whether the applicant could or could not walk outdoors alone. It found that he did not reasonably require guidance or supervision. From my understanding of its reasoning, the tribunal must have discounted any support which the applicant needed to walk out of doors on the basis that it did not constitute guidance or supervision. I believe that it has thereby adopted an unduly narrow interpretation of those words and has erred in law.
60. Whether any particular claimant's need for reassurance and support amounts to guidance or supervision for the purpose of the statutory test is a matter of fact to be determined by the tribunal. Therefore a tribunal needs to make findings as to the difficulties which the claimant experiences with taking advantage of the faculty of walking and if and how these can be overcome with the assistance of a third party.
61. This was a case where the applicant did not attend the hearing, and I accept that he is highly unlikely to attend a future hearing. Evidence of his condition would most likely be given by his sister who attended the Commissioner hearing. As he was not engaging with medical professionals, there was no significant likelihood of additional medical evidence becoming available to a new tribunal. The material which was before the tribunal, with the exception of documentation from the previous claim, was largely before me. Although sitting without the benefit of a medical member and a disability qualified member, I therefore considered it expedient, rather than remit the case to a new tribunal, to make findings of fact and give a decision in the light of them.

Evidence of the claimant's sister

62. The claimant's sister stated that she saw him approximately two or three times each week at the time of the decision under appeal. She would have called to the house where he was staying with another brother. He was now spending more time at their mother's house, and staying there mostly, so she saw him most days at present.
63. She related that he appeared to have had some sort of breakdown in the early 1990's when he experienced irrational thoughts, became aggressive with people, cut his arms and once made a noose as if to hang himself. He was very distressed at times and through his conduct became estranged from friends and from his former partner who had care of their baby. His family tried to engage with the medical profession but he was hostile to his GP and refused to let a consultant psychiatrist who visited the house past the door. On another occasion he was prescribed medication but he could not be persuaded to take it.
64. His family had sought advice about having him admitted to psychiatric hospital but were advised that there were better outcomes with voluntary admission and had avoided this. He was brought back to the GP by his mother in 2010 due to continuing aggression, irrational behaviour and continuing withdrawn nature.
65. She did not accept that the description of the applicant's symptoms as "social withdrawal" was accurate. She described that he had lost social skills, was isolated and depressed and found it hard to keep a hold on what was going on around him. Her impression was that he had a serious mental health problem.
66. When asked why he refused treatment, she replied that he lacked insight into his condition, had paranoia and would not engage with doctors.
67. When asked about occasions when he goes out, she described him as a very heavy smoker. In extreme circumstances, if out of cigarettes, he would venture out alone if no one else would go for him. She described him on one occasion when she observed him to leave his mother's house to go to a shop on the corner across the road. He "hovered" in the doorway, then went to look out the window, then made a run for the path when he saw no one about. She further described erratic behaviour when taken out by car to a bank to get money by his brother, which led to him running out of the car when it stopped at traffic lights.
68. He had never been disqualified from driving but his licence had lapsed. His family had encouraged him to get his driving licence renewed in order to create a possibility of him resuming activities and friendships. He seemed to welcome this.
69. However, he was suspicious of strangers and hostile. He would "target" a family member and be aggressive. If he had an appointment he would be very anxious and "get into a state". He would never describe how he feels.
70. He very occasionally goes out with others from the family. She described a family christening. He had to be given a lot of notice of the occasion. He was agitated throughout and could not sit down. He wanted to go early.
71. He had once gone to the shops alone for his mother who is disabled. He walked to a petrol station which is two blocks down. He brought back inappropriate things in inappropriate quantities – she thought because he was too stressed to remember what it was he was asked to get.
72. He would not go out to buy clothes or shoes. These were bought for him and he was mainly given presents of clothes.
73. Shortly after he renewed his driving licence he went out in the car to collect his nephew from school – less than a mile from his home. On the way back he came upon a police checkpoint and abandoned the car and ran off. The police gave chase and took him to the police station but found that no offence had been committed and let him go.
74. It was put to the claimant's sister that her brother had said to the EMP that he walked up to the local shops and garage to buy milk and cigarettes. She said that he is not truthful about his condition to doctors. It was not correct that he would go out every day as the report implied.
75. The claimant's sister indicated that the applicant very occasionally goes out with accompaniment. That person would take action to keep him reassured and calm. He would be asking "who's that?" The person with him would talk to him and stay with him, would help him home and make him feel safer.
76. The claimant's sister indicated that the applicant would be much more anxious outside of familiar routes. Having said that, she related that on one occasion he had taken the car at night and driven through the night to Galway to a family member's house. He arrived in Galway and rang the doorbell at the family member's house at 5am. He came back and then took to his room for days. She thought this was March 2010.
77. More and more gradually he was spending more time at his mother's house in the period since the decision.
78. The claimant's sister confirmed that she had completed the applicant's DLA claim form. She indicated that it reflected the family's perception of the applicant. She reiterated the content of the form relevant to the mobility component. She indicated that the applicant would spend several days in bed two or three times per month. He would go out only with encouragement and accompaniment.
79. The claimant's sister confirmed that the applicant derived reassurance from being accompanied. It involved monitoring his condition. She also related events in the early days when the applicant had been violent or destructive to property. On one occasion he had smashed windows and then stood and waited for the police to come.

Findings

80. On the basis of what had been said by the claimant's sister, each of the parties submitted that the conditions of entitlement to the lower rate of the mobility component were satisfied.
81. The claimant's sister appeared to me to give a credible account of the behaviour of the applicant. She had similarly been accepted as a reliable witness by the tribunal. I consider that her evidence on the manner in which the applicant refuses to engage with medical professionals was reliable. I similarly accept her evidence that he can present himself to them in a way which is misleading. I accept the evidence of the claimant's sister to the effect that the applicant has misrepresented his abilities to the EMP and his GP.
82. I further accept that the applicant is precluded by his own behaviour patterns from taking advantage of the faculty of walking out of doors. I accept that he requires guidance or supervision, in the form of active reassurance and monitoring, in order to take advantage of the faculty of walking out of doors most of the time.
83. I note the evidence that the applicant has driven a car independently, but also the evidence that he has displayed erratic and irrational behaviour in this context. I do not consider that this evidence of driving is such as to bring the applicant within the ambit of R1/07(DLA).
84. I accept that at the date of decision the applicant could not take advantage of the faculty of walking out of doors without guidance or supervision most of the time, disregarding his ability to negotiate familiar routes.

Conclusion

85. I set aside the decision of the appeal tribunal dated 4 February 2011 on the basis of error of law in relation to the application of the test in relation to the lower rate mobility component.
86. I consider that I do not need to make fresh or further findings in relation to the lowest rate of the care component. I adopt the tribunal's findings of fact and I give the same decision which the tribunal gave, namely that the applicant satisfies the conditions of the lowest rate of the care component from 30 November 2010 to 29 November 2012 inclusive (significant portion of the day test).
87. On the basis of the documentary evidence and the oral evidence of the claimant's sister, I conclude that the applicant satisfies the conditions of entitlement to the lower rate of the mobility component from 30 November 2010 to 29 November 2012 inclusive.

(signed): O Stockman

Commissioner

21 May 2012