MEMORANDUM FROM THE DEPARTMENT FOR SOCIAL DEVELOPMENT

SOCIAL SECURITY (DISABILITY LIVING ALLOWANCE) (AMENDMENT) REGULATIONS (NI) 2002 (SR 2002/97)

Background

1. On 6th February 2001, the Department wrote to inform the Committee that it was proposed to make a Statutory Rule to clarify the law relating to the gateway to the lower rate mobility component (LRMC) of Disability Living Allowance (DLA). The conditions for entitlement to the LRMC are that a person is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time. A decision by a Tribunal of Social Security Commissioners in Great Britain in 2000 decided that if "fear and anxiety" resulting from any disability is the cause of a disabled person's inability to walk out of doors etc., then the necessary causal link between the disability and that inability is established, and entitlement to LRMC is made out.

2. The Department takes the view (as does the Department for Work and Pensions in Great Britain) that the Commissioners adopted too broad an interpretation of the legislation and went beyond the policy intention by accepting that anybody who has a disability which results in "fear and anxiety" is potentially eligible to LRMC. The amendment regulations are designed to end the confusion and keep the scope and coverage of the component within those parameters and to avoid any subverting of the purpose of the legislation. They do so by making it clear that people who experience "fear and anxiety" when walking out of doors on unfamiliar routes without guidance or supervision from another person most of the time, cannot satisfy the conditions of entitlement to the LRMC by reason of that "fear and anxiety" alone unless it is a symptom of a mental disability.

3. The Committee approved the policy proposal from the Department. The corresponding Great Britain regulations were submitted to the Social Security Advisory Committee (SSAC) which noted that similar but separate regulations were proposed for Northern Ireland. SSAC consulted on the proposed regulations and reported to the Secretary of State for Work and Pensions who took into account the views expressed by SSAC when coming to a decision on whether or not to make the regulations. Similar considerations applied to the decision in relation to the Northern Ireland regulations.

4. The Northern Ireland regulations were made on 12th March 2002 and came into operation on 8th April 2002.

Prayer of Annulment

5. A prayer of annulment against the Great Britain regulations has been entered by Liberal Democrat MPs. A similar prayer against the Northern Ireland Regulations has been put down by David Ford MLA. The Committee was approached by the Citizens Advice Bureau (CAB) to consider putting down such a prayer but decided against this course of action. The CAB and independent advice centres have written to MLAs to urge them to support any move to revoke the Regulations.

6. In the material which CAB etc. have circulated, it has been suggested that those already entitled to LRMC will lose that entitlement and have their benefit withdrawn. That is not so. The Regulations do not alter basic qualifying conditions for LRMC. Severely mentally and physically disabled people will still be able to qualify if they cannot take advantage of the faculty of walking out of doors on unfamiliar routes without guidance or supervision from another person most of the time. For example blind people, deaf people whose deafness is so severe that they have difficulty in communicating with others, people with agoraphobia amongst others, will retain entitlement to LRMC.

Effects of Annulment

7. If the prayer of annulment were successful, LRMC of DLA would be paid subject to different conditions than in Great Britain. This would be contrary to the parity principle and the requirement enforced upon the Minister and the Secretary of State under Section 87 of the Northern Ireland Act 1998 to operate single systems of social security in Northern Ireland and Great Britain. Under the funding arrangements for social security in Northern Ireland agreed with HM Treasury, any consequential additional expenditure would not be provided as part of the transfer of funds but would have to be found from within the Northern Ireland Block as would any administrative expenditure brought about by the need to account separately for such payments.

8. It is difficult to provide a meaningful estimate of the likely costs of making payments in line with the Commissioner's decision. The decision is a relatively recent one which is as yet not widely known and consequently the number of awards made since (both here and in Great Britain) does not represent a base figure for the calculation of future costs. Each successful claim would cost (at current rates) £775 per year. As knowledge of the new potential for claims spreads, a substantial uptake could be expected here where DLA take up rate runs at 3 times the Great Britain level. In addition an award of any component of DLA to an Income Support recipient brings on entitlement to a Disability Premium award in Income Support which could be either £1196 or £1705 per year.