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Tribunal of Commissioners                                                                                                    25 November 2005

Case Nos CDLA/2879/2004 and CDLA/2899/2004

DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

1.     In Case No CDLA/2879/2004, we allow the claimant’s appeal and set aside the decision of the Wakefield appeal tribunal dated 27 May 2004.  We direct that the case be remitted to be heard by a differently constituted tribunal, in accordance with our directions set out in paragraph 150 below.

2.    In Case No CDLA/2899/2004, we allow the claimant’s appeal and set aside the decision of the Birmingham appeal tribunal dated 7 June 2004.  We direct that the case be remitted to be heard by a differently constituted tribunal, in accordance with our directions set out in paragraph 170 below.

REASONS

Introduction

3.By section 73(1)(a) of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”) a person is entitled to the higher rate of the mobility component of disability living allowance (“DLA”) for any period throughout which “he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so…”.

4.In each of the appeals before us the claimant claims entitlement to that higher rate.  In the first appeal the claimant (Mr B) contends that severe low back pain substantially limits his ability to walk. In the second appeal the claimant (Mrs H) contends that severe vertigo and dizziness does so.  In each case the appeal tribunal decided that the claimant was not entitled.  In Mr B’s case this was on the ground that, even if there was something physically wrong with his back, there was no physical reason for the severe degree of pain that he experienced, and psychological problems might well be contributing to his walking difficulties.  In Mrs H’s case the tribunal’s decision was on the ground that her vertigo and dizziness did not have a physical cause, the implication being that these were psychological in origin.  The claimants now appeal those decisions.

5.The appeals raise an important issue as to whether difficulty in walking which is due to pain (in Mr B’s case) or dizziness (in Mrs H’s case) which is found to have no identifiable physical cause falls within section 73(1)(a) of the 1992 Act.  The number of previous decisions by Commissioners dealing with this issue - more than twenty were cited to us - and the divergence of views expressed in them amply demonstrates not only the difficulty of the issue but also its practical importance.

6.At the hearing of the appeals Daniel Kolinsky of Counsel (instructed by the Child Poverty Action Group) appeared for Mr B, Baljinder Bajwa of the Sandwell Metropolitan Borough Council’s Welfare Rights Unit appeared for Mrs H, and James Maurici of Counsel (instructed by the Solicitor to the Department for Work and Pensions) appeared for the Secretary of State.  We are grateful to all of them.

The Statutory Provisions

7.DLA is a non-contributory benefit for people who are so disabled that they need help to cope with their disability.  There are two components, designed to assist with care and mobility respectively.  There are three rates of the care component, and two rates of the

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