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Tribunal of Commissioners                                                                                                    25 November 2005

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


11.Fulfilment of the conditions in section 73(1)(a) of the 1992 Act, as amplified in regulation 12(1)(a) of the 1991 Regulations, entitles a claimant to the higher rate of the mobility component (currently £42.30 a week).  There are other routes to the higher rate, but they are rarely relied upon and these appeals are not concerned with them.  Fulfilment of the condition in section 73(1)(d) entitles the claimant to the lower rate (currently £16.05 a week).

12.There is therefore a contrast between the language used in relation to the care component and the lower rate of the mobility component on the one hand and, on the other, that used in relation to the higher rate of the mobility component.  As regards the former, it is sufficient that the claimant is “so severely disabled physically or mentally” that the relevant qualifying conditions are fulfilled.  As regards the latter, section 73(1)(a) requires that the claimant be “suffering from physical disablement such that he is either unable to walk or virtually unable to do so”, and regulation 12(1)(a) requires that “his physical condition as a whole is such that” the relevant consequences follow.

13.In sections 72 and 73(1)(d), the words “physically or mentally” are words of inclusion not exclusion - they show that entitlement to the care component and lower rate mobility component is not limited to some types of disability alone (CDLA/1721/2004, at paragraph 38).  The omission of any reference to “mental” disablement in section 73(1)(a) (and to “mental” condition in regulation 12(1)(a)) can only be construed as some form of restriction on the types of disablement that will satisfy the conditions of entitlement for the higher rate mobility component.  This appeal concerns the extent of that restriction.

The Parties’ Submissions in Outline

14.Put briefly, the submission by Mr Kolinsky for Mr B, which was adopted by Mr Bajwa on behalf of Mrs H, is that the restriction is defined in terms of the manifestation of the disability, the only exclusion from the entitlement criteria being of what Mr Kolinsky described as “pure” mental disablement, i.e. mental disablement which does not have physical consequences in terms of the claimant’s ability actually to put one foot in front of the other.  Symptoms having a physical manifestation (e.g. pain or dizziness) are sufficient to satisfy the criteria, whatever their cause might be.  

15.Mr Maurici for the Secretary of State contended that the restriction must be defined in terms of the cause of the disability, thereby restricting entitlement to the higher rate of the mobility component to cases in which the inability or virtual inability to walk has a physical (i.e. organic) cause.  For this purpose symptoms such as pain and dizziness which are mental or psychological in origin are insufficient for entitlement.  Mr Maurici submitted that this is the proper construction of the relevant statutory provisions but, in any event, it is the construction adopted by the Court of Appeal in Harrison v Secretary of State for Social Services [1987] (reported as an Appendix to (R(M) 1/88) and that we are bound by that decision.

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