Tribunal of Commissioners 25 November 2005
Case Nos CDLA/2879/2004 and CDLA/2899/2004
12, for two reasons. First, as we have indicated, the critical words “physical condition as a whole” were not in fact amended by the 1979 Regulations. Secondly, the meaning the Committee attributed to those words is itself open to different interpretations.
39.With effect from 6 April 1992 (by amendments made to the Social Security Act 1975 by the Disability Living Allowance and Disability Working Allowance Act 1991), attendance allowance (save for those over 65) and mobility allowance were respectively replaced by the care and mobility components of DLA. At the same time, the 1975 Regulations were replaced by the Social Security (Disability Living Allowance) Regulations 1991.
40.At this time two substantive amendments of note were made. First, the lower rate of the mobility component was introduced, in order to assist persons such as the blind claimant in Lees v Secretary of State  1 AC 930 who, although physically able to walk (and therefore, it was held in Lees, not entitled to mobility allowance), require guidance or supervision when walking out of doors in order to make use of that ability. The lower rate of the mobility component is available to a person who is “so severely disabled physically or mentally” that he requires such guidance or supervision.
41.Second, an additional category of entitlement to the higher rate of the mobility component was introduced (now found in section 73(1)(c) and (3) of the 1992 Act). It applies where a claimant (a) is severely mentally impaired and (b) displays severe behavioural problems and (c) fulfils the conditions of entitlement to the highest rate of the care component. For this purpose a person is severely mentally impaired “if he suffers from a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning” (regulation 12(5) of the 1991 Regulations).
42.Harrison had been decided in 1987. The 1991 Act and the 1991 Regulations in effect re-enacted the provisions that were at issue in Harrison (and whose successors - i.e. section 73(1)(a) and regulation 12(1)(a) - are now in issue before us). It is therefore clear that the 1991 legislation did not intend to alter the meaning (whatever it may properly be considered to be) which the Court of Appeal gave to those provisions in Harrison. Whether Parliament, by re-enacting the provisions in (in substance) identical form, can be said to have affirmed the construction of them arrived at in Harrison is a different question. It is one which does not concern us, because the ratio of Harrison is of course binding on us. That question would only become material should this case go further.
43.The provisions in the Social Security Act 1975 relating to DLA were then consolidated, without amendment, in the 1992 Act, with regulation 12 of the 1991 Regulations having continued effect as if made under that Act. With that consolidation the present position was reached.
44.Mr Kolinsky submitted that it is difficult to conceive of any rational policy reason for excluding from the higher rate of the mobility component persons who, by reason of a mental condition, suffer physical symptoms such as to render them unable or virtually unable to walk. The purpose of the benefit is to assist in coping with functional difficulties. Those