Hi guys,

Just got back from holiday and already need another!
Caught up on most of my appeal subs before I went just in case, but one of my newer cases has been listed for tomorrow. AA appeal for a guy who would have qualified for high mob if possible. Got a feeling I've seen CD on mobility problems as care need, but can't locate it and running out of time. Can anyone help?

....depends on his medical conditions(s) ...............?

Arthritis lumbar spine and hips, confirmed by GP as causing 'significant pain'.

The only scenario I can think of where one could apply the care component to outdoor activities is in cases where a person is blind and requires attention in connection with the bodily function of seeing..... which is why I asked.

Not a CD, but I recall that the DWP sent a reminder to its Decision Makers in about September 2009 saying that help with getting about outdoors can constitute attention for DLAcare/AA. I can’t find this in the list of DMG memos on the DWP site, so maybe it wasn’t accorded DMG memo status.

The issue that help with getting about outdoors can constitute attention for DLAcare/AA was relevant when I was working with deaf people who are frightened of being run over by traffic they can’t hear – who can’t get LR mob for fear and anxiety unless it’s also a symptom of mental disability.

So that their fear and anxiety would get taken into account elsewhere, we’d argue that needing someone with them because they were frightened of being run over by traffic they can’t hear constituted a care need.

I’m not sure how this helps your client with Arthritis of the lumbar spine and hips causing 'significant pain'. I think the main question for you and him is, what would he want his carer to do in terms of helping him with getting about outdoors?

Mon 08-Feb-10 12:54 PM by nevip

This is fairly old hat and goes back to Packer's case in 1981 where Lord Denning said "bodily functions include breathing, hearing, seeing, eating, drinking , walking, sitting, sleeping, getting in or out of bed, dressing, undressing, eliminating waste products - and the like - all of which an ordinary person - who is not suffering from any disability - does for himself".

So if a person reasonably requires someone to hold on to when walking (indoor or outdoor) then this can be aggregated with all other attention reasonably required. It is essentially a question of fact. The case law is well settled and I don't think you need to be providing tribunals with copies of commissioners' decisions.

Sorry - should have explained. Client not able to attend hearing and, bearing in mind that I hope to fax sub through this avo, I am trying to be as thorough and comprehensive as possible. I seldom use case-law in lower tier appeals, but sometimes it is necessary. I thought I had seen a CD that stated that point in fairly simple unambiguous terms, and, as GP report supports mobility needs was hoping to avoid adjournement and relisting.

Thanks for your help guys.

That's almost 30 years ago Nevip.... - most of us will have either nearly forgotten it, or never heard of it, and I can't imagine that many, if any, decision makers would have heard of Packer.

I seem to spend an inordinate amount of my time pointing young errant DM's in the direction of Mr Mallinson and his equally important successors, primarily because their submissions clearly show they have sparse knowledge of caselaw : which in turn accounts for the high numbers of Recon's and Appeals.

Was it maybe R(DLA) 4/01. That was about low mob and supervision for the care component but it might be helpful. At para 11(b)

(b) There is nothing in the language of either section 72 or section 73 which dictates that attention or supervision requirements which are taken into account for the purposes of entitlement to the care component should not also be taken into account for the purposes of the lower rate of the mobility component.

Any help?

David

the decision is here

http://www.osscsc.gov.uk/judgmentfiles/j39/dla4_01.doc

"I seldom use case-law in lower tier appeals,"

i always do when I can, as it then can either prevent an error of law, or make a foundation for an appeal on error of law. just because we're supposed to assumed that tribunals know this stuff, there's no reason to omit at least a reference to something highly relevant...

see also CDLA/2333/2005 ...

Attention in connection with the bodily function of walking counts for the care component regardless of qualification for higher rate of the mobility component