In CA/137/1984, a child had a disability affecting his right arm. He could have used his left arm instead, were it not for a practice linked to his culture or religion which prevented him from doing so. The present case in my view is different: if the claimant does have a disability meaning that she needs help in communicating with people, then there is, at least for a while, no way which is within her power to work round her disability in the case of communication with non-Polish speakers. The position of a claimant who despite having the ability to learn to lip-read in English failed to make efforts to learn to do so would have to be considered in a case where it arose.
The fact that a hypothetical person with knowledge of the English language might be able to lip-read it and thus avoid the need for attention is, save for the issue reserved in the above paragraph, immaterial. In applying the test in section 72(1) one is concerned not with an abstract or hypothetical problem, but with the needs of an identified person.
Notwithstanding the agreement of the parties that the tribunal was in error of law on the point, I have given careful consideration to the tribunal's view but am of the opinion for the above reasons that in concluding that "her communication problems are founded in her lack of understanding of the English language rather than in her disability itself", the tribunal erred in law in construing and applying section 72.
It is of course still necessary to go on to examine the extent of the claimant's needs. As Secretary of State v Fairey [1997] 1 WLR 799 , reported as R(A)2/98, reminds us, in the case of a deaf claimant these include attention to enable the claimant to carry out a reasonable degree of social activity. What is reasonable depends on the age, sex, interests of the applicant and other circumstances. This suggests a need for further facts to be found. If the claimant only had contact, and only wished or needed to have contact, with Polish-speaking people, then she might be able to get by with lip-reading, subject to the difficulties inherent in that process identified in paragraph 1 above. But in circumstances where communication is required otherwise than in Polish, attention is likely to be needed, at least for a while, to enable the claimant to communicate notwithstanding her hearing loss.
It would be open to a tribunal, if it considered that the conditions for an award were met, to make an award for a fixed period. Ideally one would wish to know such matters as what would be the anticipated impact of the claimant's hearing loss on the ability (including how long it would take her) to learn to make the sounds needed to communicate in a spoken language that is not her own and as to how a person with such a disability may be expected to obtain a sufficient grasp of the English sounds produced by movements of the lips in order to make the necessary correlation between what she sees the speaker's lips do and the intended meaning. If either of the parties is able to obtain further evidence on this issue, it may assist the tribunal, but otherwise the tribunal will have to do the best it can.
I direct that there should be a full re-hearing of the appeal. The tribunal can only consider the circumstances obtaining at the date of the original decision (22 February 2008) (section 12(8)(b) of the Social Security Act 1998), but may take into account more recent evidence insofar as it bears on the circumstances obtaining at that date: R(DLA) 2/01 and 3/01. The tribunal will need to make appropriate findings, with an adequate evidential basis, on the claimant's need for guidance or supervision when walking out of doors on unfamiliar routes. It will also need to make findings as to the extent of her attention needs in connection with her hearing loss, applying the guidance given earlier in this decision. Before the case is re-listed, the file should be placed before a District Tribunal Judge to consider the giving of directions, including in relation to the provision of an interpreter and the filing of any further evidence.
(signed on original)
C.G.Ward
Judge of the Upper Tribunal
June 2009