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Tribunal of Commissioners                                                                                                    25 November 2005

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

“… [T]he claimant must be disabled, i.e. have some functional incapacity or impairment.  He must lack the physical or mental power to perform or control the relevant function.”

63.Mr Kolinsky submitted that CDLA/1721/2004 strongly supports the claimants’ case in these appeals.  He submitted that on the basis, as there held, that the words “so severely disabled physically or mentally that...” in sections 72(1) and 73(1)(d) focus not on cause but on functional incapacity, it would be strange if that were not also the case in relation to section 73(1)(a) and regulation 12(1)(a).

64.In our view that submission has considerable force, especially as DLA is a single benefit with two components.  However, it cannot be conclusive.  First, the view of the Commissioners in that case (see paragraph 38 of CDLA/1721/2004) was that “the words “physically or mentally” are intended to show that entitlement to care component and lower rate mobility component, unlike higher rate mobility component, is not limited to some types of disability alone. In our judgment they are words of inclusion, not exclusion.”  As the words which we have emphasised recognised (see also paragraph 23 of that decision), and as is common ground in these appeals (see paragraph 53 above), the fact that section 73(1)(a) and regulation 12(1)(a) refer only to physical disablement and the claimant’s physical condition respectively means that those references have an exclusionary purpose, and the issue is as to precisely what is excluded.

65.Second, as we have already noted (see paragraph 54 above), the provisions relating to higher rate mobility have an independent history, and of course they use different language: neither section 73(1)(a) nor regulation 12(1)(a) used the wording “so severely physically disabled that…”.

F.Adjudication difficulties which arise if a physical cause is required

66.It is the Secretary of State’s contention that in order to obtain an award of the higher rate of the mobility component a claimant must show that his difficulty with walking has a physical cause.  Mr Kolinsky submitted that this would give rise to such difficult questions of law and fact in distinguishing between causative physical and mental conditions that this cannot be correct.  He submitted that it could not have been Parliament’s intention to make the decision making process so difficult.  We have considerable sympathy with these submissions.  

67.Whatever the criteria might be, decision making on many DLA claims will be difficult.  Even on the claimants’ case, findings of fact would have to be made in respect of a claimant’s physical symptoms and their effect upon his functional ability.  Such findings are often far from easy, but fall within the broad fact-finding scope of decision makers and appeal tribunals identified by Lord Hoffmann in Moyna v Secretary of State for Work and Pensions R(DLA) 7/03; [2003] 1 WLR 1929 (at paragraph 20).  

68.However, if the Secretary of State’s submissions in these appeals are right, we consider that the difficulties for decision makers and appeal tribunals would be substantially increased in some (although probably only a small proportion) of cases in which the higher rate of the mobility component is in issue.  Decision makers and appeal tribunals would have to consider not only the extent to which the claimant’s ability physically to make progress on foot is impaired (which they would of course have to do on either submission), but also (if the

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