UK Social Security and Child Support Commissioners' Decisions

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner's Case No: CDLA/348/2002

1. The appeal is dismissed.
2. This is an appeal with leave granted by me for decision of an appeal tribunal dated 4.10.2001. In effect the appeal is concerned solely with the mobility component of DLA at the higher rate, and the possibility of the care component at the middle rate on the grounds of a need for continual supervision because of falls.
3. When this case first came before me on the application for leave to appeal, I noted that there had apparently been an earlier award about which I asked particulars, noting that in the evidence the claimant's condition had been described by the GP at p51 as "slowly progressive", and I asked for the comments of the Secretary of State. He duly made a submission on 13.3.2991 (117/118), supporting the appeal which submissions he asked to be treated as his submissions on the substantive appeal if leave were granted. The submissions were duly served on the claimant who had no further comment to make.
4. Past History

(i) The claimant (d.o.b. 12.9.37) stated his illness to be spondylolisthes is, trapped nerve and sciatica, and severe arthritis in all joints, both feet and ankles. According to the hospital report on 28.6.2001 (84/85), the surgeon stated:

"[The claimant] has been complaining of pain everywhere starting from the shoulders, elbows, wrists, spine, hips, knees, ankles and both feet.

"His major problem at the moment is pain in his left hip which is getting worse and painkillers don't seem to help him significantly.

"He can walk only a few yards at a slow pace and he has also some night pain."

I would add that the surgeon has offered him a total left hip replacement, and the claimant wishes to go ahead with that procedure.

(ii) The claimant was awarded Mobility Allowance (now higher rate mobility of component of DLA) with effect from 3.10.88. This was a life award. The protection for life awards (formerly in ss 32(4) and 33(6) of the 1992 Act has been removed by the 1998 Act as from 18.10.99.

(iii) The medical report, on the basis of which this award was made, can be found at 138/131. That report recorded a long history of back pain, but the medical practitioner opined that the claimant could walk 200 yards although he could not sit or stand for long periods. His walking ability was unlikely to change and he would walk at "a slow speed short steps. Pain in walking".

(iv) On 24.2.00, following the receipt of further evidence, the Secretary of State sought a supersession of this decision and a DM removed the claimant's entitlement to mobility allowance with effect from 3.10.88. The DM (127) stated:

"Decision dated 9-1-89 was based on a mistake as to a material fact - customer could walk appreciable distance without severe discomfort. Evidence at the time of the award shows [the claimant] could walk 200 yards at a slow speed with some pain….He is not virtually unable to walk…"

(v) He appealed to a tribunal who dismissed his appeal on 20.11.00 (123). There was no further appeal and that, effectively, was the end of that award. The decision was in essence that the claimant was never really entitled to an award in the first place. Accordingly, the history before the present claim does not seem to me to have anything more than a passing significance. The new claim must be judged fairly and squarely on its own merits. Did or did not the claimant at the date of decision viz 9.5.01 satisfy the conditions for an award of DLA?

5. The Present Claim

On 5.1.01 the claimant made a claim for DLA. The diagnosis of his underlying condition remains the same as before. He now says that he cannot walk any distance without severe discomfort. He falls "anywhere anytime without warning" and then requires help to get to his feet. He only buys food which can be warmed up and sandwiches. No claim apparently was put forward on the basis of attention needs or the cooking test.

6. Two medical reports were received:

(i) The GP was asked to complete the report dated 24.4.2001 (51/53), in which he estimated a walking range of 51-100 metres at a slow speed.

(ii) On 2.5.01, the claimant was examined by an EMP. In it, the claimant vouchsafed he could walk as far as the main road - approximately 150 yards. He did not need any help or supervision. He was aware of common dangers. The EMP gave an estimate of an ability to walk of 200 yards, before the onset of severe discomfort, although he did note (66):

"Limping gait. Both hips stiff slightly [?] right leg very stiff gait."

He noted that the claimant had poor balance and was prone to frequent falls. Finally, he said (78):

"Since mid 1980's has been having increasing problems in osteoarthritis in hips and knees. [?] increasing pain and stiffness."

In addition, there were the hospital reports of 28.6.2001 (84/5) and 17.9.2001 (82/83). I have already referred to the diagnosis in the first of those reports.

7. As a result of the reports, the EMP refused the claim and the claimant appealed to an appeal tribunal, who heard and dismissed his appeal on 4.10.2001.

In his grounds of appeal (96/97) the claimant states:

"The tribunal have failed to give adequate reasons for its decision and they did not fully address the medical evidence which was produced at the hearing. As a result it is not possible to see whether this was considered."

The Secretary of State supports the appeal, but it seems to me that the tribunal dealt fully with all the available evidence and gave reasons which were entirely acceptable.

8. The Tribunal's Decision.

(i) Mobility

The tribunal said:

"2. As to his mobility, on the primary fact in issue the tribunal found that in spite of pain from his back left hip knee and feet most of the time the appellant would be able to walk 200 metres on a flat terrain using a walking stick before the onset of severe discomfort at a slow speed it would take him two or three times longer to walk this distance than an average walker but he would not need to halt. Due to stiffness of his hips the appellant would have a limp and very stiff gait and his balance would be poor but he would not need the support of another person to walk this distance."

They continued so far as the evidence was concerned:

"In evidence to the tribunal [the claimant] told the tribunal that he went to town two or three times a week catching the bus outside his house walking around the Market, visiting the same stores, being in town for 20 minutes and going home by bus. Each visit would take at least an hour. He did his own shopping. To get to the hearing he had walked at least 150 yards, the last part of which was up a steep incline, but it had taken him 15 minutes. The tribunal did not underestimate the pain and discomfort caused by joint pain but on his evidence alone it was the judgment of the tribunal that the walking he could undertake before the onset of severe discomfort did not amount to a virtual inability to walk."

They then stated that they preferred the assessment of the EMP and noted the opinion of the GP who, as I have already noted, thought the appellant could walk 51 to 100 metres before the onset of severe discomfort. They considered the two hospital reports but commented that those did not address the criteria for DLA. It is true that the first report of 25.2.2001 stated that the claimant could walk only a few yards at a slow pace, but that is not necessarily incompatible with the findings of the tribunal, and the tribunal added that that was not substantiated by the evidence given by the claimant to the tribunal.

I can see no fault in this conclusion.

The Question of Supervision.

The tribunal stated:

"3. Due to problems caused by his OA resulting in stiffness of gait poor balance and lower limbs giving way the appellant was prone to stumbles and falls which it was accepted were unpredictable….In evidence to the tribunal [the claimant] said that he fell often in the house but when questioned further he said that he stumbled more than fell. He also gave evidence of two injuries since Jan 2000. The first was in Jan 2000 when he needed hospital treatment for a broken nose. He also said he had a torn biceps in his left arm in October 2000 but did not require any medical treatment."

The tribunal concluded:

"6. With regard to the appellant's falls, the tribunal considered the questions to be determined as set out by the Commissioner in R(A)3/89. It also found that in this case a propensity to fall did not substantiate a need for continual supervision to avoid danger for the following reasons:

(i) On his own evidence the incidents involved stumbles more than falls.

(ii) As only evidence of one fall resulting in an injury requiring medical treatment 21 months prior to the hearing.

(iii) In evidence he attributed his falls to a lack of concentration and to his hip (which he hoped would be replaced within 12 months) but he only used a home made walking stick had not seen an occupational therapist; …

(iv) There was no evidence that the regular weekly walking he did in town two or three times a week on outings lasted at least an hour had resulted in serious falls involving injury."

Again I do not find this conclusion demurrable in any way.

9. Accordingly for the reasons above I do not think that the tribunal were in any error of law and I dismiss the appeal. I will however say this. The decision by reference to which this claim had to be judged was dated 9.5.01. The GP at p51 noted that the condition was "slowly progressing", and the EMP at p78 notes that since the 1980s the claimant has been having increasing problems in osteoarthritis of his hips and knees. It is of course open to the claimant to make a further claim in respect of his condition down to his 65^th birthday and that claim would take into account any deterioration there had been since the date of decision.

(Signed) J M Henty

Commissioner

(Date) 29 April 2002