I was at an appeal resently and the PO stated that there was a decision saying that driving/ability to control a car could now be taken into account but it is a bit of a grey area.Could anyone give me a copy of this CD.

Hi Just come across your query. Are you sure it was a mobility question? There is caselaw around the ability to drive and consideration of the cooking test criteria(CDLA/772/94 & CDLA/14601/1996).
Was the Chair aware of such a decision as stated by the PO?

mairead,

could CDLA/936/2004 be the commissioners decision the presenting officer was alluding to?

The following is an extract from our briefcase summary -

'In setting the decision aside, the commissioner also says that the tribunal will be entitled to take the claimant’s driving abilities and activities into account, provided it explains itself intelligibly and does not act perversely. It may also take into account, if it sees fit, that the claimant and her husband had planned a holiday in Tenerife and that it was the husband’s illness, not the claimant’s condition, which caused it to be given up.'

(NB - the above link will not as work from next Monday, 23 May, when our new briefcase area will will be launched with subscriptions, providing fully key word searchable and cross referenced summaries of key commissioner's decisions added to the Social Security and Child Support Commissioners' website)

Two interesting points - firstly, that of a PO vaguely bringing up the subject of a Commissioners decision which hadn't been referred to prior to the hearing - we could all do that - to the displeasure of the Chair.....

Secondly, - when considering a client's ability to walk a tribunal can take into account any factors which appear to be relavant: however, surely the actions involved in sitting in/driving a car are entirely different to those required when walking, and therefore is there not a very tenuous link between the two activities?

My client's regulrly get asked if they can drive a car at Tribunals. I advise them beforehand that if they get asked this type of question to answer carefully, fully describing the type of car, the distance they drive and how difficult it could be to get in and out of their car. What the tribunal are looking for is conflicting evidence. i.e. if they have arthritis affecting their joints in their legs and they appear to happily hop in and out of a car without any apparrent pain or discomfort.
In elation to the original query, surely the presenting officer cannot vaguely bring up a commissioners decision without citing the reference. This should be pointed out to the Tribunal and if they are going to rely on it to give a decision then you must demand an adjournment, in the interests of justice (right to a fair trial, art 6 HRA, usually gets them worried) to be given the opportunity of giving the commissioners decision proper consideation to enable you to put your case on behalf of your client.

Ken
I've checked CDLA/936/04 and para 13 states: The cooking test is of cooking a main meal for one person only. The tribunal will be entitled to take the claimants driving abilities and activities into account, provided it explains itself intelligibly and does not act perversely.
Clearly the Comm. decided that consideration of driving abilities should be limited to the cooking test only.

hi Quinn,

point taken, although I think it could be argued that the Commissioner was also refering to the mobility component (not that I myself would ever want to do so).

The claimant in CDLA/936/2004 was disputing the decision of the tribunal not to award her the higher rate of the mobility component and in paragraph 5, Commissioner Fellner outlines that one of her grounds of appeal was that -

'the car she drove was an automatic, and so spared her left leg, and (she) argued that the tribunal had been wrong to take driving into account.'

The only further refence to driving is, as you point out in pargraph 13, where Commissioner Fellner could be taken to have dismissed the above ground of the appeal by saying -

'The tribunal will be entitled to take the claimant’s driving abilities and activities into account, provided it explains itself intelligibly and does not act perversely.'

Thanks for answering my questions just came across it again when checking for anything new. This is not the frist time that PO's in general have quote vauge comm decision. PO did not have a copy of CD with him, but LQM and the rest of the panel seems to have taken it into account when making their decision. I have tried to do this myself in the past and have been told very nicely by the panel that I needed ref number if I was to do this. Is there a differnet rule of PO than rep?!!!I never thought of looking for an adjourment but will do so in the future.

The basic rule is that a copy of an unreported decision relied on in argument by either side should be enclosed in the appeal bundle. If it is clear that the decision maker is relying on an unreported decision or a PO relies on it at the hearing but has failed to include it, then a tribunal should adjourn a hearing and direct that the party relying on it to produce it so that the other party can consider it and prepare a response.

Failure by the tribunal to do so would render its decision unsound.

There has been many an ocassion when tribunals have asked the appellant about driving in mobility appeals. Simple argument really for a representative to use is: If a tribunal ask questions anout driving to ascertain whether someone can or cannot walk, then one would be forced to argue that the "motability" scheme should be dismantled. This tends to rubbish any driving/mobility connections. Few, if any tribunal members or Commissioners have managed to present any logical argument overcoming this. Hope it helps a little.