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Higher rate mobility component of DLA for claimant using crutches

New Court of Appeal decision

07 September, 2010

In a new judgment, the Court of Appeal has considered the higher rate of the mobility component of disability living allowance for a claimant who could only walk with the aid of crutches.

In Sandhu v Secretary of State for Work and Pensions [2010] EWCA Civ 962 (10 June 2010) the claimant had had repeated surgery on his right leg, following a road traffic accident, and could only walk slowly and with the aid of crutches.

With a First-tier Tribunal having disallowed his appeal against the refusal to award the higher rate mobility component of disability living allowance, the claimant then appealed to the Upper Tribunal.

The Upper Tribunal decided that there had been no error of law in the First-tier Tribunal's decision since the question of whether the claimant was 'virtually unable to walk', for the purposes of  section 73 of the Social Security Contributions and Benefit Act 1992, was 'essentially a jury question for them' and the tribunal had made a reasonable judgment on the facts found. The claimant then appealed to the Court of Appeal.

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Lord Justice Maurice Kay holds that the Upper Tribunal was wrong in law since, on any view, the facts found by the First-tier Tribunal were flawed by inconsistency, but declines to remake the decision of the tribunal, holding that  -

'For this court to be able to re-make the decision, we would have to be in possession of clear factual findings by the First-Tier Tribunal. The very error of law which lies at the heart of this successful appeal, the inconsistency of the First-Tier Tribunal's findings, renders such a disposal inappropriate.' (paragraph 6)

Lord Justice Maurice Kay also declines to provide guidance on the meaning of 'unable to walk or virtually unable to do so' in the circumstances of a case such as this -

'... I consider that it would be wholly inappropriate to do so without satisfactory findings of fact. Moreover, at this stage, I do not accept that there is a need for such guidance. There are Commissioner decisions of some vintage that address this admittedly difficult area; the leading case, R(M) 2/89 is a well-known decision, and reference has also been made to CDLA/97/2001. In the present circumstances, it is not necessary for us to go into detail about the findings of those decisions. For my part, I do not consider them to be obviously wrong or unintelligible. It is to be noted that the Secretary of State...  accepts their correctness. They should continue to be applied by decision-makers. Only if a future appellant comes to this court with clear and unassailable findings of fact which underpin a different approach to the statutory language should this court even contemplate embarking on a re-think. On the present material, I do not see such a need.' (paragraph 7)

For these reasons, Lord Justice Maurice Kay allows the claimant's appeal, and remits the matter to the First-Tier Tribunal.

Sandhu v Secretary of State for Work and Pensions is available from the BAILII website.