UK Social Security and Child Support Commissioners' Decisions

[1998] UKSSCSC CDLA_14396_1996 (17 February 1998)


 


JMH/SH/ZA/6

Commissioner's File: CDLA/14396/1996

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

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

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I accept that for the purposes of this decision, the tribunal erred in law. Insofar as it is necessary, I set that decision aside but in exercise of my jurisdiction in section 23(7)(a)(ii) SSC & BA, I find as a fact that, for the purposes of section 73(9)(b)(i) ibid, the claimant was not likely to continue to be virtually unable to walk for the period of six months beginning with 30.11.93, and, accordingly, he is not entitled to the mobility component of DLA at the higher rate. No case for the lower rate has been put forward. This claimant is not entitled to the care component at any rate, no case therefor having been advanced.
2. This is an appeal with the leave of the Commissioner from the decision of a DAT dated 1.12.95.
3. The claimant was born on 15.8.82. He has had serious kidney problems since birth. In August 1993, he could walk about 400 yards but became progressively slower and that distance had decreased to something like 50 yards by the end of that month. He had a transplant operation in October 1993, and a claim for DLA on his behalf was made on 30.11.93. I would add that there was a period of rejection from August 1994 lasting a few weeks
4. The claim was rejected by the AO on both initially and on review, on the grounds that the condition relating to the care and mobility components were not likely to be satisfied for the period of six months from 30.11.93. From that, the claimant appealed to a DAT who heard and dismissed the appeal on 1.12.95. Before the tribunal, it was agreed that the only issue concerned the mobility component for the period 30.11.93 to the end of December 1994. The tribunal gave their reasons inter alia as follows:-

" 3. There is no doubt that [the claimant] was very ill and, partly because of difficulties with mobility and partly because of the need to avoid infection, he had to travel by taxi to his frequent hospital appointments. On the other hand we heard that he returned part-time to school in January 1994. He used the lift rather than the stairs but there is a considerable amount of walking around to do at school. We were not told that his walking at this stage was much slower than normal. In any event by the beginning of the summer term, in about April 1994, [the claimant] was able to walk the half mile back from school 2 or 3 times a week. Given that his improvement would be gradual, that would indicate for some weeks before then, he was able to walk at least 100 yards. He did not describe any pain or discomfort after the walk home from school.

"4. We also took into account, because we are considering the whole picture, the period of rejection from August 1994. This lasted a few weeks. The main feature affecting [the claimant] at this stage was tiredness and loss of appetite.

"5. Having taken all these factors into account and considered the whole picture, we do not find that [the claimant] satisfied the requirements of the legislation in that he was not virtually unable to walk for 6 months after the date of claim. His ability to walk at least half a mile on 2 or 3 days of the week began in April 1994. He was not at that stage experiencing discomfort and we have no evidence that he was walking particularly slowly."

It seems to me that, as the events unfolded, the claimant could not show that, during the appropriate period of six months, he was in fact virtually unable to walk.

5. From that decision the claimant appeals to me. His grounds of appeal can be found at p94 and are, broadly speaking, that the tribunal judged the question posed by section 73(9) with the benefit of hindsight, whereas under the legislation they were required to put themselves, somewhat artificially I think, into the position as at 30.11.93 and, ignoring what had actually happened thereafter, ask themselves the hypothetical question:-

"On the evidence we had at 30.11.93 is the claimant likely to be virtually unable to walk for the next 6 months?"

Support for this, it is contended can be found in para 5 of R(A) 1/94. To my mind, this argument may be technically correct, but it involves, as I have said, a somewhat artificial concept, conferring on the tribunal a foresight the conclusion offered by it they may well know to be totally incorrect. If this is the correct point of view, technically all evidence after the date on which the judgment is to be made, should be excluded. I hardly think however, that that would be a practical course or one which would commend itself to either party.

The A.O. has not fully addressed the point and I am not entirely convinced, in my own mind, that, despite the wording of the sub-section, this is necessarily the correct approach, some general authority, although in very different contexts, can be found in, inter alia, the following two cases.

In Bwllfa and Merthyr Dare Steam Collieries v. Pontypridd Waterworks Company 1903 AC 426 at 431 Lord Mcnaghten said at p. 431:

"If the question goes to arbitration, the arbitrator's duty is to determine the amount of compensation payable. In order to enable him to come to a just and true conclusion it is his duty, I think, to avail himself of all information at hand at the time of making his award which may be laid before him. Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he can calculate? With the light before him why should he shut his eyes and grope in the dark?

And in Simpson v. Jones 1968 I.W.L.R. 1066, Megarry J said at p 1075:

"During the argument, I ventured to refer to a further consideration of possible relevance. There is a general principle in the law that where facts are available they are to be preferred to prophecies. This is sometimes called the Bwllfa principle..."

However, in Dep. Sec. v. Guardian Newspapers Lord Roskill favoured the opposite approach.

But since I have had no argument addressed to this specific point, I accept that for the purposes of this decision, but this decision only that the Tribunal has to exercise foresight and is denied the benefit of hindsight, lacking in common sense this conclusion may seem. If the point arrises again, it will have to be argued. In saying what I have said, I have to keep in mind para. 5 of R(A)1/94. finally, I would just note that in every case there is bond to be a delay between the date of the original claim and a hearing in front of a Tribunal, during which events of significance are bound to have happened.

6. That, however, is not the end of the matter, for it seems to me clear in this case that all the evidence available on 30.11.93 would inevitably involve a tribunal in forming the opinion that it was unlikely that the claimant would continue to be virtually unable to walk for the period of six months thereafter.

(i) At p70, the claimant's own doctor says:-

"Kidney transplant 2½ months ago, needs to take medication daily for kidney. Will be able to engage in relatively normal activity in the next 2 to 3 months."

(ii) The only other piece of medical evidence is that contained in the Disability Handbook which at para 20.11 runs as follows:-

"20.11. Renal transplantation

20.11. 1. the majority of instances following a transplant there is a return of normal renal function. This is usually immediate but may take up to 3 weeks. The return of function leads to a rapid improvement in the person's condition.

"20.11. 2. The danger following transplantation is that the new kidney will be recognised by the person's immune system as foreign and be rejected. Acute rejection occurs 1-12 weeks after transplantation. This can be treated successfully with immunosuppressive drugs in many cases. Chronic rejection shows when there is a slow decline in renal function more than 3 months after transplantation. Treatment does not benefit this condition and a return to dialysis will be necessary whilst the person waits for another transplant. In most cases it will be known about 3 months after the transplant whether or not it has been successful and whether or not the person will need further dialysis.

"20.11. 3. At this stage, the person may still have other problems giving rise to care and mobility needs."

Assessing this evidence, it appears to me that the condition in section 73(9) is not satisfied and so I find as a fact. In arriving at this conclusion, I am fortified in the knowledge that in fact there is nothing in what actually happened after 30 11 93 to cast doubts upon it, but I stress that this is a conclusion I have reached without relying on the benefit of hindsight.

7. Accordingly my decision is as set out in para 1 above.

(Signed) J M Henty

Commissioner

(Date) 17 February 1998