THE SOCIAL SECURITY COMMISSIONERS
Tribunal's Case No:
1. My decision is as follows. It is given under sections 23(7)(b) and 34(4) of the Social Security Administration Act 1992.
1.1 The decision of the Birkenhead Disability Appeal Tribunal held on 17th December 1996 is erroneous in point of law: see paragraphs 19 and 35 below.
1.2 Accordingly I set it aside and, as it is not expedient for me to give a decision on the claimant's appeal from the adjudication officer's decision, I refer the case to a differently constituted tribunal for determination.
1.3 1 direct the tribunal that rehears this case to conduct a complete rehearing and, in particular:
The tribunal shall first determine the period over which it has jurisdiction.
(i) The tribunal's jurisdiction begins on the date of claim: 3rd October 1995.
(ii) In order to determine the date on which the tribunal's jurisdiction ends, the tribunal must establish whether the claimant has made any subsequent claim for Disability Living Allowance. If such a claim has been made and has been adjudicated upon and the tribunal's jurisdiction runs down to the effective date of that decision. Otherwise, it runs down to the date of the rehearing. The adjudication officer should inform the tribunal, either by way of an additional submission or through the presenting officer at the rehearing, whether any subsequent claim has been made and, if so, the decision given on it and the effective date of that decision.
Having determined the period of its jurisdiction, the tribunal shall determine
whether at any time within its jurisdiction the claimant satisfied the conditions of entitlement to any rate of either component of Disability Living Allowance, and in particular the tribunal shall have regard to the guidance in paragraphs 30, 34, 36, 44 and 49-50 below.
Adjudication history of the case
3. The claimant's claim for Disability Living Allowance was treated as made on
3rd October 1995. In the claim pack, the claimant asserted difficulties with walking.
He said that he was in discomfort all the time when walking, but that he experienced
severe discomfort after walking 50-60 yards which he could cover in one and a half minutes. In the accompanying statement, his landlady referred to some difficulties with care. The diagnosis of the claimant's GP was spondylosis with right-sided sciatica. The adjudication officer refused the claim.
5. The claimant appealed against the decision given by the adjudication officer
on the section 30(1) review. His letter of appeal, which was written by a Welfare
Benefits Advisor, stated:
"[The claimant] confirms that he is always in some pain and that this intensifies after walking from 50-60 yards when he has to stop due to the severe discomfort."
The tribunal's record of decision shows that the claimant attended at the hearing of the appeal, accompanied by a different Welfare Benefits Advisor as representative.
6. The tribunal, by a majority, confirmed the refusal of the claim.
Record of proceedings
7. From and including 28th February 1996, the chairman of a Disability Appeal
Tribunal has been under a duty to make a record of the proceedings: see regulation 29(7) of the Social Security (Adjudication) Regulations 1995.
13. In R(SB) 8/84. paragraph 25U2 , a Tribunal of Commissioners directed that the
tribunal rehearing the case should
"if the claimant does give ... evidence, ensure that there is a chairman's note of such evidence identifying clearly where such evidence begins and where it ends."
14. It was not until 1988 that a Commissioner gave a decision on the significance
of the lack of a record of evidence given at a hearing before a tribunal. In CSSB/212/1987. Paragraph 3, the Commissioner was concerned with a case where there was no record taken of evidence given at the hearing before the tribunal. He held that in the circumstances of the case the failure to take a note of evidence was an error of law. He said:
"It may be that there are cases where the need for a note is less compelling e.g. where there is a simple point of law which disposes of the case and in respect of which no evidence could make any difference. But in the instant case where the findings of fact may well be crucial it seems to me to be fundamental that the parties must be able to see from the decision from what evidence the findings of fact were derived. It has long been held that where the findings show that certain evidence has been rejected the tribunal must explain why. Equally, where there is conflicting evidence the tribunal must explain why they preferred the evidence they did. A tribunal's failure to provide such an explanation is an error of law. And if that is so, it seems to me to be equally an error of law to leave the parties in the dark as to how the findings came to be made."
15. The Commissioner in CSSB/212/1987 related the significance of the notes of evidence to the established grounds on which a tribunal's decision will be erroneous in law. The absence of any, or of an adequate, note of evidence and proceedings would amount to an error of law, if it was necessary to have regard to the evidence in order to decide if there had been an error of law.
"A proper record of the tribunal's proceedings, from which it can be seen that the claimant's case has been given its due consideration and from which the result can be understood, is a requirement of the general law that does not depend on the terms of subordinate legislation: cf R(A) 1/72. Save perhaps where the whole case depends on a simple point of law and no facts are in issue, this requirement is not met without a proper record of the evidence taken, from which it can be seen how the tribunal's findings and conclusions are related to what was placed before them: R(SB) 8/84 12ara 25, CSSB 212/87 (*6/88) para 3."
The mobility component at the higher rate
"(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 as 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".
Jurisdiction of tribunals, Commissioners and the courts
The tribunal's decision
,,The tribunal members had to consider whether or not the ability to walk 50 to 60 yards in one and a half minutes before the onset of severe discomfort amounted to being virtually unable to walk. After the most careful consideration, the majority of the members of the tribunal are of the view that such limitations in walking did not amount to being virtually unable to walk. This was a difficult decision although we accept to some extent it is both subjective and objective but the majority of the members were unable to allow the appeal."
The reason given by the dissenting member was:
"The minority member was of the view that the distance stated above had limitations of time did mean [sic] that the statutory provisions were satisfied."
There was, therefore, no dissent as to the findings of fact. The dissent related only to their application.
The grounds of appeal
(a) On the majority's findings of fact, no tribunal acting judicially and properly instructed as to the law could have reached the conclusion reached by the majority.
(b) Regulation 12(1)(a)(ii) was interpreted too narrowly in that only one of the elements listed (time, speed, manner and distance) had to be established.
(c) The majority failed to explain why supportive evidence was rejected.
(d) The claimant was unable to discern from the decision why the evidence had failed to satisfy the majority.
In view of my conclusion that the tribunal's decision was erroneous in law, it is only necessary for me to deal with the first two grounds.
Ground (a): The majority was not entitled to reach the decision that it did on its Findings
that (my emphasis)
"If somebody can walk even 50 yards albeit slowly and with a limp, and even if a rest is involved, before the onset of severe discomfort that person can not, in my judgment and as matter of law be 'virtually unable to walk'."
This suggests that a decision by a tribunal that a person who was able to walk 50 yards was virtually unable to walk would not be one that the tribunal was entitled to reach and would be erroneous in law. I doubt that the Commissioner intended to go as far as that, because so much would depend on the accompanying circumstances. Nonetheless, the Commissioner's comments on the distance of 50 yards are in line with the views in the above decisions.
"A tribunal is entitled to conclude that a claimant is not virtually unable to walk if he can walk without severe discomfort for 400 yards at a reasonable, albeit slow, pace and, although obliged then to stop for, say, five minutes to recover, can afterwards walk without severe discomfort for a further 400 yards at the same pace. However, it would not be inconsistent were the same tribunal to conclude that a claimant was virtually unable to walk if, after walking the first 400 yards, he had to wait for two hours before being able to walk a further 400 yards."
No doubt the two hour recovery time was deliberately chosen in order to create an extreme example. The precise distance of 400 yards happened to be the distance that the claimant was found to be able to walk by the tribunal in that case. The example is probably too much tied to its own particular and extreme facts to carry any weight as a precedent, but in so far as it may be taken to suggest that a person who can walk 400 yards is capable nonetheless of being virtually unable to walk, I respectfully disagree.
Ground (b): A claimant need only satisfy one of the elements of regulation 12(1)(a)(ii)
Pain and discomfort
Pain and discomfort - in the wording of tribunals' decisions, findings and reasons
severe discomfort refer to the use of those terms in the tribunal's decision.
decision of a Medical Appeal Tribunal recorded that
"He walked with a marked limp but made steady progress without apparent pain or stress and without dragging his right leg."
The Commissioner held that the reference to "pain or stress" did not show an error of law. He said (at paragraph 3):
"If anything, 'pain or distress' constitutes a lower threshold than 'severe discomfort'."
40. In the case of Cassinelli v. Secretary of State for Social Services (29th
November 1991), the Court of Appeal was concerned with an appeal from a
Commissioner who had held that there was no error of law in the decision of a
Medical Appeal Tribunal. The tribunal's decision recorded that
"There was no evidence that the exertion [of walking] caused severe pain or distress."
The Court of Appeal held that a decision worded in this way was erroneous in law. Lord Justice Glidewell in giving the judgment of the Court of Appeal said:
"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".
Pain and discomfort - in the evidence before the tribunal
43. In making findings of fact on the basis of the evidence before a tribunal,
whether that evidence was given in terms of "discomfort", "pain", "distress", "agony"
or some other terms, a linguistic analysis of the nature of, and relationship between,
pain and (severe) discomfort is unnecessary and unhelpful. These are not words with precise meanings and as a result they are not necessarily used consistently by claimants and their representatives.
"I need hardly point out that severe discomfort is something much less than pain......
In the context of the approach set out in paragraph 44 above, such remarks are, with respect, not relevant to the interpretation of the evidence and are not binding on the tribunal in analysing the evidence and making its findings of fact.
Severe discomfort and the point at which a claimant stops walking
have given some guidance on how to do so in paragraph 44 above.
onset of severe discomfort with the point at which the claimant stopped walking: see the decision of the Commissioner in CM/267/1993. paragraph 10. I accept the argument of the claimant's representative on this point. However, it is permissible for a tribunal to decide as a matter of fact in a particular case that severe discomfort first occurred at the moment when the claimant stopped walking. It may well be that in the great majority of cases it will be found as a matter of fact that the two do coincide.
50. In making its decision on this issue, the tribunal must be careful in interpreting
the evidence of the limitations on the actual walking undertaken by a claimant. There are at least four matters that the tribunal should consider.
(a) First, there is the possibility that the claimant may be exaggerating the difficulties experienced with walking.
(b) Second, evidence of time and distance is notoriously unreliable however honest a witness is trying to be: see the remarks of the Commissioner in CM/80/1988.Paragraph 5.
(c) Third, some claimants continue to walk regardless of the severity of their symptoms while some stop well short of the distance that would be covered by others with the same symptoms. The claimant's tolerance of symptoms is for the tribunal to judge on the whole of the evidence before it, including (if the claimant attends) the tribunal's estimation of the claimant's character.
(d) Fourth, a claimant may cover only a particular distance because there is no need or reason to go any further. For example, a claimant may only walk 20 yards because that is the distance to the shop where the claimant buys a newspaper before returning home to read it.
51. The tribunal's decision is erroneous in law and must be set aside. I cannot give the decision which the tribunal should have given on its findings of fact and it is not expedient for me to make further findings of facts. There must, therefore, be a complete rehearing of this case before a differently constituted tribunal in order to determine at all times within the period of the tribunal's jurisdiction the claimant's entitlement to Disability Living Allowance. The tribunal will decide afresh all issues of fact and law on the basis of the evidence available at the rehearing in accordance with my directions in paragraph 1.3 above. As my jurisdiction is limited to issues of law, my decision is no indication of the likely outcome of the rehearing, except in so far as I have directed the tribunal on the law to apply.
Signed: Edward Jacobs Commissioner
Date: 15th October 1998