CDLA/7090/1999 - urgently seeking full version

I have a pending tribunal and am urgently seeking a copy of CDLA/7090/1999 where it was held that, for the DLA HRMC ‘deaf and blind’ provision, testing for hearing should be in the open air rather than in an enclosed environment.

thanks in advance.

Its on our social security law CDROM.  I can’t paste it from gotomypc on an iPad.  Are you at NAWRA on Friday?  I’m in Manchester at the moment and away from my PC.

CDLA/7090/1999

DLA high rate mobility on grounds of being deaf and blind

Background

Section 73(ii) of the Social Security Contributions and Benefits Act 1992

says that where a person is both blind and deaf s/he is entitled to the

higher rate mobility component of DLA.

The conditions are prescribed in regulation 12(2) of the Social Security

(Disability Living Allowance) Regulations 1991. It states that for the

purposes of section 73(2)(a) of the Act (Mobility Component for the Blind

and Deaf) a person is taken to satisfy:

the condition that he is blind only with the degree of disablement resulting

from the loss of vision amounts to 100%, and

the condition that he is deaf only where the degree of disablement

resulting from the loss of hearing when using any artificial aid which he

habitually uses or which is suitable in his case amounts to not less than

80% on a scale where 100% represents absolute deafness.

The first condition about blindness is quite clear as to satisfy it you have to

be registered blind or someone who could be register blind.

However, the second condition is not so clear. In R(DLA)3/95 the

Commissioner said the test to use should be an audiogram. The claimant

should be treated as 80% disabled through deafness if his/her average

hearing loss is more than 87 decibels at 1, 2 and 3 kHz in each ear.

Previously claimants were treated as 80% disabled if you were “unable to

understand a simple instruction shouted from 1 metre”.

A problem with the audiogram approach is that it took no account

of background noise. Another problem is that since R(DLA)3/95 the

regulations have been amended so that a claimants hearing ability with a

hearing is taken into account.

How the 80% deafness test should now be implemented was therefore

unclear.

The appeal

The appellant in this case, a woman with Ushers Syndrome raised several

arguments that the tribunal had made errors in law. One of these was that

it had applied the wrong test with regard to the deafness condition. In its

decision it said:

“Applying the usual ‘rule of thumb’ test that 80% deafness is when a

person cannot hear a shout from a metre away, it was apparent that even

without the medical assessment of percentage deafness her hearing was

better than this”

The decision

Deputy Commissioner Kirkwood said the tribunal’s approach was wrong.

In setting aside the decision he issued directions to a new tribunal which

said:

“The ability or inability to hear a shout beyond one metre using both ears

with aids (but without sight of the person shouting) should not be regarded

as conclusive in determining the matter.”

Looking at R(DLA)3/95 he says:

“With regard to deafness the legislation has of course been altered,

therefore the standard of assessment laid down in R(DLA)3/95 cannot

now apply. However, it seems to me undesirable that, whilst the test for

loss of sight follows that under the General Benefit Regulations, the test

for deafness should be wholly divorced from the corresponding provisions

under the Prescribed Diseases Regulations re occupational deafness. The

amendment under regulation 12 (2B) of the relevant statutory provisions to

the effect of inclusion of hearing aids requires that the standard of hearing

loss should be attained with the use of hearing aids.”

He therefore issued the following guidance to the re-hearing:

“(a) they should consider the terms of [a consultants] report and if

necessary obtain further evidence or interpretation of the audiogram. They

should then find the level of the appellant’s hearing loss without the benefit

of her hearing aids.

(b) They should then determine to what extent if any the use of her

hearing aids reduces her hearing loss. This is very likely to involve

expert evidence, but that is for the tribunal to determine. It may be that

of necessity this matter will have to be determined on a broad basis.

Assessment of her hearing loss with hearing aids should be calculated

in the open air rather that in an enclosed environment, having regard

to the fact that it is related to the mobility component of disability living

allowance.”

Gareth - I’m afraid I can’t make NAWRA due to another commitment.

Bryan - thanks for that extract, very helpful.

If anyone has access to the full version, my email is: .(JavaScript must be enabled to view this email address)

Cheers

Big thanks to Gareth Morgan (for the case law) and Sense (technical advice). The tribunal awarded higher rate mobility under the blind/deaf route for six years today. Will make a huge difference to the family who can now get their much-needed motability car back.

Paul.

great result paul ....

Glad to hear the result.