Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CDLA/1153/2010

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge S M Lane

 

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

The decision of the tribunal heard on 21/12/09 under reference 185/09/01321 is SET ASIDE because its making involved an error on a point of law.

 

The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

 

REASONS FOR DECISION

 

The claimant, a child with Down’s Syndrome, bring this appeal through his appointee with my permission.  The tribunal decided that the child did was not virtually unable to walk section 73(1)(a) or 73(3) of the Social Security Contributions and Benefits Act 1992.  The former is the straightforward route to the higher rate of the mobility component on the basis of physical disability while the latter is based on severe mental impairment coupled with severe behavioural problems. The further requirements for both routes are set out in regulation 12(1)(a) and 12(5)(6) respectively of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. 

 

It is only necessary for me to deal with section 73(1)(a) since both parties agree that the tribunal erred in making insufficient findings of fact and in giving inadequate reasons.  The tribunal considered that the child would be able to walk at least 50 metres though he might refuse to continue to walk.  It described this refusal as ‘a wilful act about which little could be done’.  Presumably the tribunal meant that his refusal was connected with the Down’s Syndrome.  If so, and since Down’s Syndrome is a chromosomal disorder which could be classified as a physical disorder of the brain, it was open to the tribunal to find that the child was virtually unable to walk.  His refusal might have been wilful, but so intricately tied up with the disorder that it was part and parcel of a physical disability and physical condition.  The Secretary of State’s helpful response and Judge Parker’s decision in CDLA/1533/2009 are included in the appeal papers for the next tribunal’s convenience.

 

The appellant’s representative asks me to substitute my own decision, but this is not possible.  There are too many factual issues to be addressed including the frequency of refusal and the distance the child walks before he refuses to go on.  Further evidence from the school about his routine walking during the school day might be helpful though his usual school-day activities as described in the existing papers might give the tribunal some impression of the point at which his refusal is likely to occur.  If he only refuses to walk when at home with his family, the next tribunal might draw the conclusion that his problem does not stem from his disability.

 

The appeal is therefore remitted to a freshly constituted First-tier Tribunal to rehear.  The appellant should be aware that success before the Upper Tribunal is no indication of the outcome of the appeal before the First-tier Tribunal. 

 

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 13 October 2010