England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
(DISTRICT JUDGE MAY QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th June 2010

Lord Justice Maurice Kay:

1. This is an appeal from a decision of the Upper Tribunal in a matter to which the Secretary of State for Work and Pensions is the respondent. The appellant, Mr Sandhu, was injured in a road traffic accident on 11 May 2008. He sustained a compound fracture of the right tibia. He was in hospital for a period of time and underwent surgery on a number of occasions involving the internal fixation of the fracture with a nail and plastic surgery to close the wound over the fracture. In due course he made a claim for disability living allowance. As a result, the Secretary of State obtained a report from the appellant's consultant orthopaedic surgeon and, on the basis of that report, rejected the claim. The appellant appealed to the First-Tier Tribunal, but his appeal was dismissed. The written reasons given by the First-Tier Tribunal were expressed in this way:

"The appellant is not entitled to the higher rate of mobility component of DLA because he is not virtually unable to walk. The Tribunal accepted the evidence of the appellant that he could not put any weight or stand in any way on his right leg and that the appellant could only stand on his left leg. The appellant uses a pair of crutches (observed at the hearing). The appellant was also observed to be tall, well-built and with strong arms and hands able to use his crutches without difficulty (observed at the hearing). The Tribunal decided that the appellant could walk using his crutches (using the crutches standing first on his right leg his crutches at his side his left leg held off the ground at his side he would then balance using his crutches move his left leg forward then bringing his right leg above the ground at the same time moving his crutches forward to compensate for being able to use his right leg or he could use such other method (without swinging through the crutches) which was more suitable to him as all people cannot use crutches in the same manner) walking slowly…using his crutches for balance and gait walking a distance of at least 50 yards before pausing for a moment and without suffering severe discomfort he could then walk on in a similar manner without severe discomfort."

2. The appellant then appealed to the Upper Tribunal, but his appeal again failed. In the Upper Tribunal, District Judge May QC said:

"I am persuaded by the Secretary of State's submission that no error of law has been demonstrated on the part of the tribunal. The tribunal in its statement set out the basis upon which it concluded that the claimant could walk notwithstanding their acceptance of his evidence that he could not put any weight or stand in any way on his right leg. The matter was essentially a jury question for them and in my view they have made a reasonable judgment on the facts found. RM2/89 was a case in which the claimant had only one leg. Accordingly, the case was determined on that factual basis. Mr Commissioner Skinner in that case did, however, say in paragraph 8:

'It appears to me in the instant case that the tribunal substituted the concept of progress without walking. A man with two legs who has to use crutches may manage himself in such a way as to walk, but not so a person with one leg only.'

The claimant in this case was such a two-legged man. Thus that authority is of no assistance to him."

3. The appellant now appeals to this court. It is necessary to set out the relevant statutory provisions briefly. Entitlement to the mobility component of the disability living allowance is governed by section 73 of the Social Security Contributions and Benefit Act 1992. It can be awarded at two levels, the higher rate and the lower rate. It is the higher rate that is in issue on this appeal. So far as material, section 73 provides:

"Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over [the relevant age] and throughout which—

(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so;"

The concept of being unable or virtually unable to walk receives further statutory attention in the Social Security (Disability Living Allowance) Regulations 1991, and in particular regulation 12. We do not need to refer to the detail.

4. An appeal from the Upper Tribunal to this court lies only on a point of law. On behalf of the Secretary of State, Mr Buley makes the well-judged concession that the Upper Tribunal erred in law by failing to recognise that the decision of the First-Tier Tribunal was vitiated by legal error. On any view, the reasoning of the First-Tier Tribunal was flawed by inconsistency. The following passages are patently irreconcilable:

"The Tribunal accepted the evidence of the appellant that he could not put any weight or stand in any way on his right leg and that the appellant could only stand on his left leg."

And:

"The Tribunal decided that the appellant could walk using his crutches (using the crutches standing first on his right leg his crutches at his side his left leg held off the ground at his side…)"

5. It is therefore common ground that the appeal must be allowed. However, the parties do not agree as to the consequential disposal. By section 14(2) of the Tribunals, Courts and Enforcement Act 2007, the relevant appellate court:

"(a) may (but need not) set aside the decision of the Upper Tribunal, and

(b) if it does, must either—

(i) remit the case to the Upper Tribunal or, where the decision of the Upper Tribunal was on an appeal or reference from another tribunal or some other person, to the Upper Tribunal or that other tribunal or person, with directions for its reconsideration, or

(ii) re-make the decision."

Mr Rutledge submits that we should proceed under section 14(2)(b)(ii) and re-make the decision ourselves without more ado. Mr Buley, on the other hand, seeks a remittal to the First-Tier Tribunal.

6. 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. Mr Rutledge seeks to preserve and elevate the first of the two inconsistent sentences, and says that it amounts to an unequivocal finding of an inability to put any weight or stand in any way on the right leg. However, that is to cherry-pick from the basket of inconsistency. It seems to me that with such flawed findings of fact, there is no alternative but to remit to the First-Tier Tribunal for a determination de novo.
7. Mr Rutledge formulated his appeal to this court on a broader basis than the one which has led us to allow it, and with a mind still on that broader basis, he has invited us not only to re-make the decision, but also to take the opportunity to provide authoritative guidance on the meaning of "unable to walk or virtually unable to do so", in the circumstances of a case such as this. Again, however, I consider that it would be wholly inappropriate to do so without satisfactory findings of fact.
8. 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, through Mr Buley, 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.
9. For all these reasons, I would simply allow the appeal, and remit the matter to the First-Tier Tribunal.

Lord Justice Sedley:

10. I agree.

Lord Justice Sullivan:

11. I also agree.

Order: Appeal allowed.