Tribunal of Commissioners 25 November 2005
Case Nos CDLA/2879/2004 and CDLA/2899/2004
23.Attendance allowance, the forerunner of the care component, was introduced by the National Insurance Act 1970. From the outset, the legislation included a requirement that the claimant be “so severely disabled physically or mentally” that a particular test was satisfied.
24.Assistance for people with mobility needs was originally provided in kind rather than in money (see generally The Law of Social Security, Ogus & Barendt, 1st edition (1978), pages 183-5). From 1946, in exercise of his powers under the National Health Service legislation, the Minister of Health made a single seat three-wheeler invalid carriage available to a disabled person who came within any of the following categories (the criteria being set out in a DHSS Circular):
(i)loss of both legs, one being amputated above or through the knee;
(ii)defects in the locomotor system, or a severe chronic lung or heart condition such that, to all intents and purposes, he was unable to walk; or
(iii)a disability which was slightly less severe but which still seriously limited walking ability, and as a result he needed personal transport to get to and from work.
25.From 1968 the relevant power was contained in section 33 of the Health Services and Public Health Act 1968 (later replaced by section 5(2)(a) of the National Health Service Act 1977) which gave power to the Minister to “provide invalid carriages for persons appearing to him to be suffering from severe physical defect or disability …”.
26.These provisions came to be regarded as inadequate because (i) facilities were distributed inequitably (in particular, they were limited to persons who themselves were able to drive) and (ii) the three-wheeler carriage provided was itself unsatisfactory (it was dangerous, noisy, uncomfortable, liable to break down, and could not carry a passenger). Following various proposals, a flat-rate non-contributory allowance was introduced as an alternative to the three-wheeler. This mobility allowance, the predecessor of the higher rate of the mobility component of DLA, was introduced with effect from 1 April 1976 by inserting section 37A into the Social Security Act 1975. Attendance allowance was by then dealt with in section 35 of that Act.
27.Section 37A provided for the mobility allowance to be payable to a person “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” (that is, the same wording as now governs the primary condition for the higher rate of the mobility component). Further, power was given to prescribe by regulations the circumstances in which a person was or was not to be “treated as suffering from such physical disablement”. Regulation 3(1) of the Mobility Allowance Regulations 1975 (SI 1975 No 1573), in its original form, provided:
“A person shall only be treated, for the purposes of section 37A, as unable to walk or virtually unable to do so, if his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to place of residence or as to place of, or nature of employment, -
(a)he is unable or virtually unable to walk; or