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Tribunal of Commissioners                                                                                                    25 November 2005

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

with severe mental handicap, amended regulation 3(1) of the principal regulations by providing that the qualifying conditions for the allowance would be satisfied if, because of a physical condition, a person:- (a) was unable to make the physical movements of his body necessary for walking, or alternatively that his ability to move on foot was so severely impaired that he was unable to make any real progress; or (b) ….”

34.The report then went on to explain that the NIAC had felt that there was a danger that the revised wording, in seeking to cover a small number of particular cases, would restrict the criteria for the generality of claimants, and that it had invited the Department to produce a further draft “retaining as far as possible the wording of the existing regulation 3(1) but expanding illustratively the phrase “virtually unable to walk””.

35.The amended draft was enacted with effect from 21 March 1979 by the Mobility Allowance Amendment Regulations 1979 (SI 1979 No 172).  The amended regulation 3(1) was in substantially the same terms as the present regulation 12(1)(a) of the 1991 Regulations.  The substance of the amendment was therefore to set out a list of factors (distance, speed etc) by which virtual inability to walk was to be judged.  However, it also altered the terms of the deeming provision so that, if the conditions of the regulation were met, a claimant was deemed not just to be unable or virtually unable to walk, but also to be suffering from physical disablement such that he was unable or virtually unable to walk.  Therefore, if the regulation 12(1)(a) criteria are met, all of the conditions in section 73(1)(a) are deemed to be met, including the condition of suffering from physical disablement.

36.It is notable that both the original regulation 3(1) and the amended version (which, as described above, has been carried through into the current regulation 12) state that the claimant’s “physical condition as a whole” must be such that he is unable or virtually unable to walk.  In paragraph 7 of its Report, the NIAC said that it agreed with the Department’s view that “the amending regulations should relate to the effect of a disabling condition, rather than its causation”.  In R(M) 3/86, a Tribunal of Commissioners (in paragraph 5) expressed the view that this meant that the amending regulations  had left untouched the requirement in R(M) 2/78 that the effective cause be physical and should concentrate simply on seeking better to define what degree of diminution in the ability to walk would suffice.   

37.However, we do not consider the meaning of paragraph 7 of the Report to be clear.  It could be said that the widening of the effect of the deeming in regulation 3(1)(a) (from a deeming of merely inability or virtual inability to walk to a deeming of suffering from physical disablement such that…) did indicate a positive intention to affect the requirement that the effective cause of inability to walk be physical and that that wider intention was acknowledged in paragraph 6 of the NIAC Report.  It might also be said that paragraphs 14 and 15 of the Report point the same way.  It was noted there that some respondents had suggested substituting “functional” for “physical” in the regulation, but that the Department had assured NIAC that the suggestions added nothing legally to the revised draft.  However, the difference in the width of the deeming could merely have been to bring the terms of the regulation into line with the terms of the statutory power in section 37A(2), without any intention to alter the substance.  And it would have been curious, if such a fundamental change had been intended, for it not to be signalled more clearly in the NIAC Report.

38.Therefore, whilst on its face the NIAC Report suggests that the intention of what is now regulation 12 was to focus on “the effect of a disabling condition, rather than its cause”, we are able to attribute only limited significance to the report in construing the current regulation

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