Scottish Court of Session Decisions

[1] The petitioner and reclaimer presented a petition for judicial review of a decision of the Social Security Commissioner dated 22 December 1995. By that decision, the Commissioner refused the petitioner's application for leave to appeal against a decision of a Social Security Appeal Tribunal dated 8 September 1995. Answers were lodged on behalf of the respondent and in due course a debate was heard by a Lord Ordinary who, on 7 October 1999, refused the prayer of the petition. The petitioner now appeals to this court.

[2] The question to be decided in this reclaiming motion is a short one but it is necessary to set out the background in a little detail in order to identify it. The petitioner claims to be disabled and to suffer from restricted mobility, and on that ground he claims to be entitled to certain benefits. He initially claimed benefit in 1991. At that time, the relevant benefit was known as mobility allowance and the governing statutory provision was section 37A of the Social Security Act 1975. That section provided that, subject to certain conditions, a person would be entitled to mobility allowance for any period throughout which he was suffering from physical disablement such that he was either unable to walk or virtually unable to do so. Conditions were prescribed in relation to that benefit by the Mobility Allowance Regulations 1975, regulation 3 of which provided inter alia that a person would only be treated as qualifying for the benefit if his ability to walk out of doors was so limited that he was virtually unable to walk or that the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health. Certain other conditions, including blindness, were also taken to satisfy the requirement. In 1992, the Social Security Contributions and Benefits Act 1992 made certain changes to the allowances payable for disability. One of the effects of the changes was that mobility allowance ceased to be payable. Instead a person who met the necessary conditions became entitled to the mobility component of disability living allowance (DLA). Eligibility for the mobility component of DLA was prescribed by section 73 of the 1992 Act and by regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991. The primary qualification continued to be that the claimant should be suffering from physical disablement such that he was either unable to walk or virtually unable to do so, and regulation 12 repeated, in similar, though not identical, terms the requirements which a person must satisfy in order to qualify as virtually unable to walk, including the provision that he should be regarded as virtually unable to walk if the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health.

[3] In 1992, the petitioner claimed DLA. He maintained, at the Tribunal to which reference will be made in a moment, that he had earlier claimed mobility allowance in 1991. The claim for DLA was refused by an adjudication officer on 2 December 1992 and a review was refused on 26 May 1993. The petitioner appealed and his appeal was heard by a Disability Appeal Tribunal held on 25 March 1994 (DAT1). That Tribunal was informed that the petitioner claimed to have made an earlier application for mobility allowance the presenting officer, on behalf of the department, at that time was unable to confirm or deny that any such claim had been made. DAT1 considered a number of medical reports and also heard evidence from three witnesses on behalf of the petitioner, namely his son, his daughter and a Mr. Sutherland, a friend. In brief the petitioner's claim was that he had had a severe accident at work some time previously, that he suffered from cervical spondylitis and that he had experienced a number of collapses, which caused him to fall. On the occasions when he fell, he suffered a complete loss of power in his body, although he did not lose consciousness, and as a result required to be assisted. On occasions, the loss of power would last for a few days. The frequency of the episodes varied very considerably: at times he would go nine weeks without an attack but on other occasions he suffered an attack every day. As a result he required, he claimed, to have someone with him as a precautionary measure. The petitioner's daughter, son and friend gave evidence supporting the occurrence of these attacks. The decision of the Tribunal was to award certain benefits, namely attendance allowance at a lower rate and a benefit described as the care component of DLA but to adjourn the appeal in respect of any claim to mobility allowance and the mobility component of DLA. The reasons for the decision note that the medical evidence was to some extent contradictory and inconclusive, including references to possible functional overlay and social factors, and that no firm diagnosis was available. DAT1 said, however, that there was consistency between the reports of the collapses given to the various doctors and the evidence given by the three witnesses who appeared before the Tribunal as to the nature, frequency and consequences of the petitioner's attacks.

[4] On 8 June 1994, a further Disability Appeal Tribunal (DAT2), again adjourned the claim so that papers could be produced in relation to the alleged claim for mobility allowance in 1991. On 29 August 1994, a further Disability Appeal Tribunal (DAT3), again adjourned the hearing. A further hearing, however, took place on 27 September 1994 (DAT4) at which the remainder of the petitioner's claim was refused. By the time of that hearing, it had been clarified that the petitioner had applied for mobility allowance on 24 June 1991 and that that claim had been refused on 23 August 1991. The findings of DAT4 were that the petitioner had physical symptoms which did not fit any known disease: that he could walk and that his walk allowed him to carry out a reasonable lifestyle: and that he already had an award of middle rate care component which covered the help he required at home.

[5] The petitioner applied to the Tribunal Chairman for leave to appeal against the decision of DAT4. Leave was refused by the Chairman but granted by the Commissioner on 23 June 1995. It may be observed that the adjudication officer had put forward a written submission in which she accepted that the findings of DAT4 were inadequate. The ground, in brief, on which leave to appeal was granted was that DAT4 had failed to make adequate findings, in particular in relation to the extent and limitations of the claimant's outdoor walking ability and in relation to the extensive medical evidence.

[6] As a result, a further Disability Appeal Tribunal hearing (DAT5), took place. The decision of that Tribunal, dated 8 September 1995, was that the petitioner did not satisfy the medical criteria for the award of mobility allowance in respect of the claim lodged on 24 June 1991 and that he was not entitled to either rate of the mobility component of DLA in respect of the claim lodged on 23 October 1992. The petitioner again applied for leave to appeal. Leave was refused by the Tribunal Chairman and on this occasion was also refused by the Commissioner by a decision, without reasons, dated 22 December 1995. It is this decision which the petitioner seeks to have reviewed.

[7] The decision of DAT5 is lengthy and it is not necessary for the purposes of this reclaiming motion to set out in detail what was heard and decided. It is recorded that the Tribunal proceedings began by the chairman explaining to the petitioner that there would be a complete rehearing of his claims. The petitioner lodged an extensive written submission and gave evidence to, and answered questions by, the members of the Tribunal. He explained in detail what happened to him at the time of his collapsing attacks. He was asked whether he had ever suffered injury in such an attack and said that he had not. He explained the effects of the attacks and their frequency. He made reference also to a report by a Mr. Campbell, an alternative medical therapist, who concluded that the petitioner was suffering from myalgic encephalomyelitis. DAT4 also had before it a wide range of medical reports including reports from the petitioner's general practitioner and from a number of doctors who had carried out a variety of investigations into his complaints at different times. The Tribunal's reasons for its decision include the following passages:

[8] The Tribunal then referred to a number of medical reports, all of which it said had been taken into consideration and later said:

[9] The Tribunal also considered whether the petitioner might be suffering from a mental condition but rejected that possibility.

[10] The petitioner was represented by counsel before the Lord Ordinary. The only point argued on the petitioner's behalf was that there had been a failure on the part of the Tribunal to comply with the rules of natural justice, giving rise to a good ground of appeal, so that leave to appeal should have been granted by the Commissioner. The argument was that the findings of DAT5 proceeded on a different view of the evidence from that taken by previous tribunals and that it was incumbent on the Tribunal to intimate to the petitioner that they did not accept his evidence before reaching their conclusion. That argument was rejected by the Lord Ordinary. Before this court, the petitioner appeared on his own behalf and expressly stated that he did not insist in that argument. The arguments which the petitioner did advance were that the findings of DAT5 were not supported by the evidence before them; that DAT5 had failed to comply with the directions of the Commissioner who granted leave to appeal against DAT4 in respect of the findings that required to be made; that there were no adequate reasons for a number of the findings made; and that DAT5 had not dealt with conflicting evidence and, in particular, had not dealt with the evidence from the petitioner's witnesses which was before DAT1 to establish that he did suffer from these complaints and in particular was liable to collapse.

[11] As we indicated at the outset, once the issues in this appeal have been identified, the question for us is a short one. Leaving aside the fact that the issues raised by the petitioner before us were not argued before the Lord Ordinary, it is manifest that all his complaints are directed to the assessment of the evidence by DAT5. It is clear from the decision in DAT5 that the Tribunal did consider the petitioner's evidence and the material put before it in the shape of medical reports and records in great detail. The only matter which is not explicitly mentioned by DAT5 in its reasons is the evidence given by the petitioner's witnesses at DAT1. That evidence did tend to support the petitioner's claim that he suffered episodes of falling. However, DAT5 did not say that they found that the petitioner had not suffered episodes of falling: what they held was that his episodes of falling were controlled. DAT5 had ample material before them to entitle them to conclude that the petitioner was not suffering from any condition which satisfied the stringent requirements laid down for qualification for either mobility allowance or the mobility component of disability living allowance. In these circumstances the petitioner has failed to show that there was any error in law in the approach of DAT5 and accordingly failed to show that there was anything before the Commissioner which should have led him to grant leave to appeal. This reclaiming motion must therefore be refused.

[12] In the course of the appeal, reference was made by counsel for the respondent to R. v. Secretary of State for Social Services, ex parte Connolly [1986] 1 W.L.R. 421 with regard to the proper approach to be taken by the court in assessing a decision given by a Commissioner without reasons. For the reasons we have given, we think that in this case there was no reason for the Commissioner to grant leave to appeal and it does not seem to us to be necessary to examine the decision in ex parte Connolly. That is particularly so since the petitioner was not legally represented and while he did make some reference to the decision in his submissions, he was not really in a position to provide the court with much assistance.