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Tribunal of Commissioners                                                                                                    25 November 2005

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

required that a person be “so severely disabled physically or mentally that”, the mobility allowance provisions used the wording “suffering from physical disablement such that”, rather than the wording “so severely physically disabled that...”.  It is therefore not necessarily correct to regard the mobility allowance provisions as having been drafted directly by reference to the attendance allowance provisions, but with mental disablement simply excised.

55.Nevertheless, we agree with the parties’ submission that the absence of any reference to mental disablement or to the claimant’s mental condition in section 73(1)(a) and regulation 12(1)(a) must indicate some limit on the types of disability which can give rise to entitlement to higher rate mobility.

56.As we have indicated (paragraph 14 above), Mr Kolinsky submitted that only those with a mental disablement which does not have physical manifestations (what he described as “pure mental disablement”) would be excluded.  He cited as examples a person with agoraphobia or, perhaps, schizophrenia who can walk perfectly well indoors but will not walk out of doors; or a person with seasonal affective disorder who will not leave the house at certain times of the year; or a person with depression who is physically able to walk but lacks all interest in doing so and consequently does not do so.

57.However, Mr Maurici submitted that such a limitation would be no limitation at all, because in practice it would exclude no one with a disability from entitlement to higher rate mobility component.  Persons with a mental illness such as agoraphobia which is sufficiently severe to render them virtually unable to walk out of doors would almost certainly suffer some physical manifestations (such as breathlessness or palpitations) if they were to attempt to do so. Mr. Maurici submitted that because Mr Kolinsky’s suggested limitation would not in practice exclude anyone it must be wrong.

58.We do not agree with that submisson because we consider that Mr Kolinsky’s limitation excludes some persons who at least arguably would have been included if regulation 12(1)(a) had referred to the claimant’s physical and mental condition.

59.First, there is the category of person who, although physically perfectly able to walk (in the sense of moving their legs), cannot effectively make use of that ability in order to get from A to B by reason of mental impairment.  In Lees (see paragraph 40 above), the House of Lords gave leave to appeal on the issue whether a person who is physically able to walk but by reason of physical disability (in that case blindness and impairment of capacity for spatial orientation) cannot direct his movement towards a desired destination can be regarded as “virtually unable to walk”.  It was therefore clearly arguable, prior to the decision in Lees, that such a person was unable or virtually unable to walk within the meaning of the provisions (see the decision to that effect in R(M) 2/81).  Given the importance which Lord Scarman attached to the references in the mobility allowance legislation to physical disablement and to the claimant’s physical condition (see [1985] AC 930 at page 935 D-F), it would plainly have been arguable, if that legislation had referred to both physical and mental disablement (and to the claimant’s physical and mental condition), that a person who, although physically able to walk, was unable to guide himself from A to B by reason solely of mental impairment, qualified for mobility allowance.  The absence of a reference to mental disablement (and, in the regulations, to the claimant’s mental condition) make it clear that such a person could not qualify.

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