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Cite as: [1991] UKSSCSC CM_331_1988

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Cassinelli v. Secretary of State for Social Security [1991] UKSSCSC CM_331_1988 (29 November 1991)

R(M) 2/92
(Cassinelli v. Secretary of State for Social Security)

CA (Dillon, Glidewell and Stuart-Smith LJJ) CM/331/1988
29.11.91

"Severe discomfort" - whether same as "severe pain or distress"

The medical appeal tribunal of 22 August 1987 decided that the claimant was not virtually unable to walk for the purposes of regulation 3(1)(a)(ii) of the Mobility Allowance Regulations 1975 after they observed the claimant whilst walking to be "slightly breathless. There was no evidence that the exertion caused severe pain or distress. The pace was not slow." The claimant's appeal to the Commissioner was dismissed because the Commissioner saw no distinction between the words "severe discomfort" and the words "severe pain or distress". The claimant appealed to the Court of Appeal. It was submitted on behalf of the Secretary of State that the whole phrase "severe pain or distress" ought to be considered, and "distress", was in this context, synonymous with discomfort. The tribunal could thus be taken to mean "severe discomfort" when they used the words "severe distress" thereby applying the right test and answering the right question by inference.

Held, allowing the appeal, that:

the tribunal had adopted the wrong test. If the Secretary of State's submission was correct, there was no reason why the tribunal should not have used the word "discomfort". Secondly, the tribunal's use of the words "severe pain or distress" appeared to draw a distinction between pain (of which discomfort was a lesser concomitant) and distress (which could arise from pain or discomfort as well as other reasons such as breathlessness).

The appeal was remitted to a differently constituted medical appeal tribunal for reconsideration.

DECISION OF THE COURT OF APPEAL

Mr. R. Drabble (instructed by Messrs. Bindman and Partners, London Agents for Sheffield Law Centre, Sheffield), appeared on behalf of the Appellant.

Mr. R. Jay (instructed by the Solicitor to the Department of Social Security) appeared on behalf of the Respondent.

LORD JUSTICE DILLON: I will ask Lord Justice Glidewell to give the first judgment.

LORD JUSTICE GLIDEWELL: This appellant, Mr. Charles Cassinelli, for some years has had the misfortune to suffer from osteo-arthritis. It has affected, materially so far as this appeal is concerned, both hips and both knees. It has also apparently affected his wrists.

On 17 January 1983 he was awarded a mobility allowance under the Social Security Act 1975, section 37A, because it was held that he was virtually unable to walk. That was for three years, and it expired on 16 January 1986. Later in 1983, on a date that is not wholly clear, he had a total replacement of the right hip joint. No application was made because of that change of circumstance to terminate the mobility allowance, and it continued therefore to be paid until 16 January 1986. Before that time he applied for the payment to be renewed or extended.

On 25 November 1985 he was medically examined in connection with that claim for the allowance to continue. The report of that medical examination assesses his walking ability as "fair quality walk, with knee pain, to 100 yards plus." The diagnosis of the basic disorder is given as "osteo-arthritis of knees, early osteo-arthritis of left hip, right hip replacement ... Prognosis .... Likely to deteriorate". In answer to the questions, "(Is he) unable to walk?" or "[Is he] virtually unable to walk", both questions were answered "No".

As a result of those answers to the questions, the claim for the mobility allowance to be continued was refused. He appealed, and on 24 February 1986 a medical board reached the same decision. On 14 April of that year he appealed to a medical appeal tribunal. Unfortunately, no doubt because of the waiting list for such appeals, it was not until 22 August 1987 that there was a hearing of his appeal before the medical tribunal.

Amongst the evidence which that tribunal had before them was a letter from Mr. Getty, the surgeon who had performed the right hip joint replacement on Mr. Cassinelli and in whose charge he had been since that time. In that letter, which was dated 13 January 1987, Mr. Getty said:

"Having observed him walk he appears to manage approximately 100 yards before getting into severe trouble, and at that stage is already considerably restricted in his activity."

Under "Clinical Impression" he says:

"His inability to walk more than approximately 100 yards before being restricted because of pain, relates to this condition" - that is to say, rheumatoid arthritis."

Further he expressed his opinion that:

"Mr. Cassinelli's condition certainly has deteriorated since I first treated him in 1983 with his right hip, and it appears moreover to be deteriorating continually."

Of course the operative treatment, the insertion of the prosthesis into the right hip, it is accepted must have improved, and substantially improved, the condition of that hip. But I apprehend that that expression of opinion by Mr. Getty is an opinion as to overall deterioration, taking into account the improvement of the right hip.

The members of the medical appeal tribunal of course were not obliged to accept Mr. Getty's opinion. They themselves are distinguished medical practitioners, and they were entitled to form a different conclusion. They reached the same conclusion as had been reached by the medical examiner and the medical board, that is to say, they recorded their conclusion as that the claimant was not unable to walk and not virtually unable to walk. The reasons for that decision they expressed in the following passage:

"We examined his feet and found marked restriction of movements of all joints including MP joints. The main source of pain was prominence of metatarsal heads in the soles of both feet. We saw him walk using one walking stick out of doors and indoors down and up a slope a distance of about 120 yards. He stopped twice to rest for less than half a minute. He was slightly breathless. There was no evidence that the exertion caused severe pain or distress. The pace was not slow.

It appears that the right hip replacement has increased his mobility significantly since the original award of mobility allowance."

The appeal was therefore dismissed.

Mr. Cassinelli appealed further with leave to the Commissioner. That appeal is only on a point of law. The Commissioner dismissed the appeal to him. I should say that at that stage the Secretary of State had expressed the view that the medical appeal tribunal had applied the wrong test in referring to "severe pain or distress". The Commissioner, Mr. Rice, said:

"I do not share the Secretary of State's apprehension on the issue raised. It would be pedantic of me to draw distinction between the words 'severe discomfort' and the words 'severe pain or distress'. It would, of course have been more helpful if the tribunal had confined themselves to the words appearing in the relevant statutory provision, but it is not essential. Accordingly, there is nothing in this ground of appeal."

He considered other grounds into which I do not need to go and said he had no hesitation in dismissing the appeal. The appeal to this court, of course, is also only on a point of law.

I turn briefly to refer to the legislation. The primary legislation is contained in section 37A of the Social Security Act 1975. So far as is material that provides in subsection (1):

"37A.- (1) Subject to the provisions of this section, a person who satisfies prescribed conditions as to residence or presence in Great Britain shall be entitled to a mobility allowance for any period throughout which he is suffering from physical disablement such that he either unable to walk or virtually unable to do so.

(2) Regulations may prescribe the circumstances in which a person is or is not to be treated for the purposes of this section as suffering from such physical disablement as is mentioned above; but a person qualifies for the allowance only if-

(a) his inability or virtual inability to walk is likely to persist for at least 12 months from the 'relevant date'."

I need not read the rest of that.

It is not suggested here and never has been that Mr. Cassinelli is or was unable to walk. The question at issue was, was he in January 1986 virtually unable to walk? As I have already said, subsection (2) of section 37A gives power for regulations to be made. Those regulations were made in the same year, the Mobility Allowance Regulations 1975. The relevant regulation is 3. Regulation 3(1) provides:

"3.- (1) A person shall be treated, for the purposes of section 37A, as suffering from physical disablement such that he is either unable to walk or virtually unable do so only if -

(a) his physical condition as a whole is such, that without having regard to circumstances peculiar to that person as to the place of residence or to place of, or nature, of employment -

(i) he is unable to walk: or

(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort that he is virtually unable to walk: or

(iii) 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".

As I have said, it is not suggested that he is or was unable to walk; nor is it suggested that the exertion required in walking would constitute a danger to his life or likely to lead to a serious deterioration in his health. So we can concentrate on sub-paragraph (ii) of regulation 3(1)(a). Taking into account the factors there set out (distance, speed, length of time and manner in which Mr. Cassinelli was able to walk) was his ability to walk out of doors an ability to walk without severe discomfort? If not, then he was virtually unable to walk.

The first ground of appeal advanced before us by Mr. Drabble is quite shortly that in saying in their reasons "there was no evidence that the exertion caused severe pain or distress", it appears that the medical appeal tribunal applied the wrong test. The test was not "severe pain", nor indeed "severe distress" but "severe discomfort". Mr. Drabble argued initially that it seemed that Mr. Rice had equated "severe pain" and "severe discomfort" and that he was wrong to do so. Mr. Drabble argues and Mr. Jay for the Secretary of State accepts, that if one regards only the first word "pain", "severe pain" is a condition more serious than "severe discomfort" and applies a higher standard, and if the medical appeal tribunal had been considering or had used only the phrase "severe pain" they would, I think Mr. Jay would concede, have fallen into error because they would have been applying a higher standard than that contained in the regulation. But Mr. Jay is quite right in submitting, in answer to Mr. Drabble, that one must not look at the sole word "pain", but at the whole phrase used by the medical appeal tribunal, "severe pain or distress". His argument is that distress is, in this context, a synonym for discomfort. It is quite clear, he submits, that the tribunal were relating their finding to Mr. Cassinelli's walking over 120 yards, stopping twice (they do not say why he stopped) but when they say that he did not suffer or that he was not caused severe distress, it can only be taken, submits Mr. Jay, that they were using that word as a synonym for "severe discomfort" and thus have, inferentially at least, applied the right test and answered the right question.

For my part I cannot accept that submission. If that were correct, then first of all I can see no reason why the tribunal should not have used the word "discomfort"; secondly, the phrase "severe pain or distress" seems to me to be drawing a distinction between the factor of pain, of which discomfort is a lesser concomitant, and the factor of distress which may arise from other reasons than pain; distress may result of course from pain or discomfort, but may also result from breathlessness, which is another matter to which the tribunal referred. So for my part I am persuaded that the tribunal in their reasons appeared to show that they did adopt the wrong test. That is sufficient to allow this appeal, if my Lords agree with me, of course.

Mr. Drabble did advance other arguments. He invites us to take the view that quite apart from that the tribunal did not make it clear in their findings what were the reasons for Mr. Cassinelli stopping twice in his 120 yards walk and that that was an important factor. He reminds us that, indeed under statutory regulation, the reasons have to be given and to be clear, albeit they do not need to be very long. But for my part I do not think it is necessary to go into that.

As I have said, I conclude that this tribunal did not apply the correct test and therefore this appeal should succeed.

LORD JUSTICE STUART-SMITH: I agree.

LORD JUSTICE DILLON: I also agree.

Order: Appeal allowed with costs; legal aid taxation of appellant's costs; case to be remitted to a differently constituted medical appeal tribunal for reconsideration.