UK Social Security and Child Support Commissioners' Decisions

[1996] UKSSCSC CDLA_8462_1995 (19 November 1996)


 


DGR/SH/3

Commissioner's File: CDLA/8462/1995

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF DISABILITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. For the reasons set out below, the decision of the disability appeal tribunal ("DAT") given on 9 March 1995 is not erroneous in point of law, and accordingly this appeal fails.
2. This is an appeal by the claimant, brought with the leave of a Commissioner, against the decision of the DAT of 9 March 1995.
3. The question for determination by the tribunal was whether the claimant was entitled to the mobility component of disability living allowance, either at the higher or lower rate. In the event, the tribunal, upholding the decision of the adjudication officer, decided that the claimant was not entitled to the mobility component at either rate. The tribunal made the following findings of fact:-

" 1. Claimant is depressed.

2. Claimant's employment terminated due to bad back.

3. We consider the claimant is capable of walking at least 50-75 yards without severe discomfort."

The tribunal gave as the reasons for their decision the following:-

"We have heard the claimant and Mr Kelly on her behalf.

She is obviously depressed.

We have considered all the scheduled evidence and whilst accepting that she does experience some pain we prefer the evidence of the Examining Medical Practitioner, dated 16.02.94 and in our opinion she is not so limited by severe discomfort on walking as to be regarded as virtually unable to walk. She does not satisfy regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991."

I see nothing wrong in law with the tribunal's decision.

4. Somewhat surprisingly, the adjudication officer now concerned supports the appeal. She contends, inter alia, as follows:-

" 6. It is my submission to enable the tribunal to reach a conclusion as to whether the claimant was virtually unable to walk it was incumbent upon them to first make findings of fact on the statutory questions set out in regulation 12(1)(a)(ii) of the DLA Regs i.e. distance, speed, time and manner in which the claimant can make progress on foot without severe discomfort. I submit that the tribunal have only made findings of fact on the distance the claimant can make progress on foot before severe discomfort. I submit that the tribunal have not made specific findings of fact on the speed, time and manner of walking and that this omission constitutes an error in law."

I reject this contention, which appears with unwelcome frequency in adjudication officers' submissions, which has been corrected on numerous occasions, and which should cease. It is based on a misunderstanding of CSM/74/93. The need to make a finding on each of the factors set out in regulation 12(1)(a)(ii) only applies where such factors are in issue. Normally, the only matter which causes difficulty is the distance that a claimant can walk before the onset of severe discomfort. It is generally the case that if he can walk a satisfactory distance, he will also satisfy the other factors set out in the regulation. Of course, sometimes he does not, in which case the relevant factor or factors will be in issue, and in those circumstances the tribunal will have to make a specific finding. But where factors are not in issue the tribunal are simply under no obligation to make any finding.

5. The adjudication officer now concerned further supports the appeal on the ground that the tribunal failed to explain why they preferred the examining medical practitioner's report to the claimant's own evidence. This is again a tiresome submission, which appears only too regularly. As I have said on numerous occasions, the evidence of an examining medical practitioner is both disinterested and informed. The claimant's evidence is not. Accordingly, it is self-evident and obvious why a tribunal will prefer the evidence of an examining medical practitioner to that of a claimant. Moreover, the evidence of the examining medical practitioner is normally to be preferred to that of the claimant's own GP because the latter, unlike the examining medical practitioner, is likely to be subject to pressure from the claimant. Again, this is self-evident and obvious, and need not be spelt out specifically by a tribunal. Of course, there may be special circumstances where, in the light of the claimant's evidence or that of his G.P. the medical judgment of the examining medical practitioner may be suspect. If that happens, then there is a need for the tribunal to explain why they preferred the evidence of the examining medical practitioner. But that situation has not occurred here.
6. The adjudication officer now concerned also supports the appeal on the following ground:-

" 23. I submit that the tribunal have made no findings of fact and have given no reasons for their decision why the provisions laid down in Section 73(1)(d) of the C&B Act are not met. It is my submission that these omissions also constitute a further error in law."

As far as I can see, there was not the slightest suggestion that the claimant could bring herself within section 73(1)(d), and it is not surprising that the tribunal made no reference thereto. The tribunal were only required to refer to matters which were genuine issues in the case.

7. For completeness, I should mention that in addition to the points raised by the adjudication officer now concerned in support of the appeal, the claimant herself has put forward further grounds of appeal. These the adjudication officer now concerned has shown to be without force, and I see no merit in my repeating in different words what she has already set out in her submissions.
8. In short, I see no respect in which it could be said that the tribunal erred in point of law, and I have no hesitation in dismissing this appeal.

(Signed) D.G. Rice

Commissioner

(Date) 19 November 1996