I have on several occasions been told that the law was changed in such a way that low rate mobility cannot be paid in the case of physcial impairments.

This is what the Tribunal Chair said yesterday. The case concerned a guy who's back could get really bad suddenly so that he would need help. I thought it constituted a possible need for supervison.

The Chair talked about regulation changes in about May 2003. I do not see any such reference in the CURRENT 04-05 CPAG book. Have I missed something?

If not is there some specific reason for this idea being held by a full time Tribunal Chair?

Thanks

All I can think of is that the tribunal Chair was referring to Reg changes that took effect in April 2002 as Regulation 12(7) and (8) of the Social Security (Disability Living Allowance) Regulations 1991. This change was introduced to counter a fear by the govt that people with fear or anxiety not amounting to a mental disability may qualify for Low Rate Mob DLA after R(DLA)4/01. For example, if a claimant states they cannot go out alone because of anxiety about their back but they do not have a recognised 'mental disability'.

This is discussed in CPAG pg137. See also Vol 1 of 2004 Social Security Legislation para 4.61 and Cmrs decision CDLA/4438/2003.

However, these reg changes do not stop people with physical conditions generally from qualifying.

Regulation 12 of the DLA regulations was amended in April 2002 (paragraphs 7 and 8), following the (perfectly reasonable) decision R(DLA) 4/01, to say that if the need for guidance or supervision for low rate mobility arose due to fear or anxiety then such guidance or supervision would not count, unless the fear or anxiety arose as a result of a 'mental disability' and was so severe to prevent the person from taking advantage of the faculty of walking' (current Bonner pages 562 and 574 - 575).

So applying that knee jerk reaction piece of secondary legislation to your case, he would not qualify if the reason you said he needed guidance or supervision was because he was frightened or anxious his back would become bad quickly and he would need help.

Which is not necessarily the case. If his back has become bad in such a way and he has been out on his own and unable to summon help then he is probably frightened and anxious of going out. But the need for supervision arises because his physical condition is as it is.

Your chairman appears to me to be putting 2 and 2 together and getting 5.

CDLA/2106/2002 from Commissioner Rowland is helpful with this issue. This is a two page decision regarding someone with both arthritic problems and a liklihood of falling due to giddiness and difficulty with co-ordinating the use of crutches. Whilst chiefly ruling on a tribunal not being able to bar potential entitlement (higher or lower rate - frustration of the award) unless the claimant cannot benefit from any enhanched facilities with walking it is clearly a case involving physical disabilities alone, with no reference to mental health problems or learning difficulties being involved .

It also helpfully establishes that a tribunal is not entitled to ignore any inability to walk to use familiar routes that the claimant may have - this can be important in physical disability cases where the claimant may have the same difficulties whether they walk along familiar or unfamiliar routes.