UK Social Security and Child Support Commissioners' Decisions

[2004] UKSSCSC CDLA_2915_2003 (18 May 2004)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner is allowed. The decision of the Darlington appeal tribunal dated 2 June 2003 is erroneous in point of law, for the reason given below, and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraph 20 below (Social Security Act 1998, section 14(8)(b)).
2. The appeal tribunal was concerned with the claim for disability living allowance (DLA) from 22 May 2002. The disabling condition stated in the claim pack was severe angina. Amongst other things, the claimant said that he could walk 25 yards before he felt severe discomfort, which would take five minutes, the problems being that he got out of breath and his legs got wobbly. Elsewhere in the claim pack he referred to chest pains and to blackouts and dizzy spells causing falls.
3. Factual reports were obtained from the claimant's consultant cardiologist and his GP. The consultant (18 June 2002) reported the diagnosis of ischaemic heart disease, with a myocardial infarction having been suffered in 1983, plus some other problems. The overall prognosis was relatively good, with the chance of a myocardial infarction being 2 - 3% per year. He had last seen the claimant in March 2002 and no further cardiac treatment was planned. He was said to suffer exertional angina. His exercise capacity had not been documented, but "he can walk at a slow pace, but gets chest discomfort and breathlessness on relatively mild exertion". The GP (15 July 2002) reported similar diagnoses and said that the claimant was usually breathless at rest or with slight exertion. He described the claimant's walking ability on level ground before the onset of severe discomfort as 20 to 30 metres, with some variability.
4. The claimant was examined by Dr Kibirige, an examining medical practitioner (EMP), on 16 August 2002. He told the EMP that he could walk outdoors five to ten yards. The EMP's opinion was that the claimant could walk 200 metres at a slow pace before the onset of severe discomfort, which would take three to four minutes. I shall come back below to the printed question on the report form about distance. The EMP had found no restriction on limb function and no breathlessness at rest or after the examination. She commented that clinical findings (which included hard skin on both feet) and factual evidence did not support the perceived level of disability. She also recorded the claimant's statement that angiography had shown one blocked and two partially blocked arteries and that angioplasty had been unsuccessful, but no further surgery was planned and he was not under review by the consultant.
5. The decision was then given on 20 August 2002 that the claimant was not entitled to either component of DLA. His appeal was disallowed by an appeal tribunal on 13 November 2002, but that decision was set aside by a district chairman under section 13(2) of the Social Security Act 1998. There was a further hearing on 2 June 2003. By this time the claimant had gone for advice to Darlington Citizens Advice Bureau, who prepared a written submission. This included the following:

"It is noted that the EMP estimates a walking distance of 200M but fails to record the walking surface. It is submitted that this is relevant since the tribunal is required to `envisage the kind of pavement or road which one would normally expect to find in the course of walking out of doors' (R(M) 1/91) including as it would a normally occurring level of incline or decline.

It is understood that, though the EMP assessed his chest function at rest, she undertook no walking test so is unlikely to have been as better placed than the consultant cardiologist ... who notes that he gets `chest discomfort and breathlessness on relatively mild exertion'.

The tribunal is urged to consider whether the GP's assessment of 20-30 yards [is] more likely to adequately describe the claimant's walking ability."

The claimant attended the hearing without a representative, but accompanied by a friend.

6. The appeal tribunal of 2 June 2003 also decided that the claimant was not entitled to either component of DLA. There was a detailed statement of reasons. The appeal tribunal did not find the claimant a reliable witness, for reasons explained generally and in particularly in relation to walking ability, and so preferred to rely on the medical evidence. It gave particular weight to the evidence of the EMP, because the report was very close to the date of the decision and the estimate of walking ability was not influenced by the claimant's own estimate (as it thought the case with the GP's evidence), and accepted her opinion on walking ability. The statement contained the following:

"The opinion of Dr Kibirige in that regard [the estimate of 200 metres] was criticised in the submission made on behalf of [the claimant] because she had not specified the walking surface. However, on the relevant form there is in fact no specific provision for this information and Dr Kibirige, as with any Examining Medical Practitioner, will have been trained in these matters and in the view of the Tribunal could be assumed to understand the requirement as set out in R(M) 1/91 quoted in the submission."

7. The claimant's representative, Mr Robinson of Darlington CAB, prepared an application for leave to appeal. The application to the Commissioner was deferred because the first ground was that the medically qualified panel member of the appeal tribunal of 2 June 2003 worked as an EMP, which following the decision of the Tribunal of Commissioners in CSDLA/1019/1999 gave rise to a breach of the principles of natural justice. The Secretary of State was directed to make a submission after the Court of Session decided the appeal against CSDLA/1019/1999 in Secretary of State for Work and Pensions v Gillies. After the decision reversing the effect of CSDLA/1019/1999 had been given, the representative of the Secretary of State in the submission dated 5 December 2003 supported the application on the basis that the appeal tribunal had erred in law. The error identified was that the appeal tribunal had failed to provide adequate reasons to support its conclusion attaching particular weight to the EMP's report in relation to the reports of the consultant and the GP. It was, though, submitted that the EMP in estimating walking ability would have taken into account the same factors as envisaged in R(M) 1/91.
8. Following that submission, Mr Commissioner Pacey granted leave to appeal. In his observations in reply Mr Robinson agreed that the appeal tribunal had erred in law in the way suggested by the Secretary of State's representative, but disagreed with the point about what the EMP would have taken into account. An argument was made that the approach taken by the appeal tribunal and the Secretary of State amounted to the delegation of an adjudication function to a third party, in breach of Article 6 of the European Convention on Human Rights. Mr Commissioner Pacey directed an oral hearing of the appeal, linked with the appeal in CDLA/3210/2003.
9. The hearing took place at Doncaster County Court on 27 April 2004. The claimant did not attend, but was represented by Mr Robinson. The Secretary of State was represented by Ms Deborah Haywood of the Office of the Solicitor to the Department for work and Pensions. I am grateful to both representatives for helpful and focused submissions, and especially to Mr Robinson for his detailed skeleton argument sent in advance to the Commissioners' office.
10. I accept the Secretary of State's submission, confirmed at the oral hearing by Ms Haywood, that the appeal tribunal erred in law by not giving adequate reasons. But I do not accept it in the very compressed way it was put in the written submission of 5 December 2003. In my judgment the appeal tribunal failed to explain why it apparently rejected the specific contention in Darlington CAB's written submission that, in effect, the EMP had no way of telling, on the extent of the examination carried out, at what point the effects of angina might amount to severe discomfort, so that the estimates of the claimant and the GP should be accepted. It was within the area of judgment allowed to the appeal tribunal for it to give reduced weight to the evidence of the claimant and the GP, and perhaps to regard the evidence of the consultant cardiologist as not establishing any very specific degree of limitation on walking ability. But it was not then left with the sole alternative of adopting the EMP's estimate. A cogent argument had been put forward, given the nature of angina as a symptom and the undisputed presence of heart disease, that the EMP's estimate should not be accepted. The appeal tribunal should have dealt expressly with that argument, but did not do so.
11. In addition, I accept Mr Robinson's submission that the appeal tribunal was wrong to find that the EMP's answer on estimated walking distance was to be assumed to reflect an understanding of the requirements of R(M) 1/91. The printed question on the DLA140 report form is "Over what distance and terrain would the customer be able to walk before the onset of severe discomfort (if any)?". The EMP's answer was "200 metres". Mr Robinson hung quite a considerable weight of submissions on the one peg of the EMP's failure to specify the terrain in relation to which her estimate was made, including his delegation of adjudication argument and analysis of the written guidance given to EMPs by their employer. It is not necessary to go into all that. My approach is somewhat simpler.
12. In my judgment, an EMP's evidence is to be judged by the answer given to the specific question posed. There is no room for assumptions such as that the EMP would have been trained to give an answer on some particular basis (eg walking on "even terrain" or "level ground") or would have had in mind some statutory test in terms different from the specific question. That was one of the things which I said, in the context of a different question on the DLA140 report form, in decision CDLA/1850/2001, relied on by Mr Robinson.
13. He also relied on the decision of the Court of Appeal in Miah v Secretary of State for Social Security [2002] EWCA Civ 592. One issue in that case was whether a GP's ticked "yes" to the question "Is the patient able to walk outdoors, without the help of another person?" was to be taken as evidence that it was the GP's opinion that the claimant was able to take advantage of the faculty of walking out of doors without guidance or supervision from another person. The Commissioner had held that the word "help" was broad enough to cover guidance and supervision within the meaning of the conditions of entitlement to the lower rate of the mobility component of DLA. The Court of Appeal had little hesitation in deciding that it did not. In [39] and [40] of his judgment, with which Sedley and Ward LJJ agreed, Sumner J said:

"I do not accept that it is reasonable to infer that the Appellant's stated ability to walk without the help of another person applied equally to unfamiliar routes and to familiar ones. There is no dispute but that the Appellant could walk outside without the help of another person. The unanswered question was whether he could do so on unfamiliar routes. I do not see that the word `help' is sufficiently specific to enable a safe inference to be drawn on the essential point to which I have referred."

I find the general approach of the Court of Appeal helpful and one which can be applied in the present case.

14. Here there was an unanswered question as to the terrain to which the EMP's estimate of walking ability related. In my judgment, the only safe inference that could be drawn from the answer which the EMP did give is that the estimate related to the most favourable surface which could be expected to be encountered when walking out of doors, something like a recently surfaced uninterrupted stretch of pavement or, say, a car park, on which walking from one point to another would not leave the person higher or lower at the end point than at the start point. Ms Haywood for the Secretary of State accepted the validity of a proposition along those lines.
15. However, I part company with Mr Robinson in assessing the significance of the limits of what can safely be inferred from an EMP's answer on walking distance without specifying a terrain. He relied in particular on paragraphs 8 and 9 of R(M) 1/91:

"It is clear from the wording of regulation 3(1)(b) [of the Mobility Allowance Regulations 1975, in identical terms to regulation 12(1)(b) of the Social Security (Disability Living Allowance) Regulations 1991] that a claimant's `ability to walk' is to be assessed by reference to `his ability to walk out of doors'. The significance of this is that the test should not proceed on the basis that his ability should be adjudged by reference to a surface as level as a billiard table. It is well known that surfaces indoors tend to be smoother and more even than those out of doors. Hence the specific statutory requirement that the ability to walk be tested by reference to the natural irregularities that have to be negotiated by anyone walking out of doors. However, in applying that test only reasonable conditions should be in contemplation. The test should obviously not be as to whether the claimant could walk on unploughed land or over unmade-up roads or over pavements under repair by the Council. Many people who would on no basis regard themselves as being incapable of walking would be unable to negotiate those particular conditions. The test should be to select or envisage the kind of pavement or road which one would normally expect to find in the normal course of walking out of doors. The criterion is the type of surface which anyone walking out of doors would normally expect to encounter, any unusual hazards being disregarded. ...

9. As regards the question of a claimant's ability to negotiate `inclines', it cannot be over-stressed that the criterion is whether or not is unable or virtually unable to walk; the question is not whether he is unable or virtually unable to climb. The ability or otherwise to surmount hills or mountains has no relevance, in my judgment, to the question of whether or not a claimant is unable or virtually unable to walk. Of course, no pavement or road is absolutely flat. Some degree of `incline', or for that matter `decline' must be contemplated. But once again the tribunal must envisage a reasonable outdoor track which will not be entirely level."

Mr Robinson also drew attention to the decision in CSDLA/44/2002 that kerbs were part of the type of surface normally expected to be encountered when walking out of doors, and were not unusual hazards.

16. Mr Robinson submitted that R(M) 1/91 required an appeal tribunal to ask, at least in a case where the claimant's ability to manage inclines was expressly put in issue or the claimant's condition was one which would be expected to be affected by inclines, whether the claimant was virtually unable to walk up the kind of gradient normally encountered out of doors. I disagree. Mr Commissioner Rice in R(M) 1/91, echoing the approach of the House of Lords in Lees v Secretary of State for Social Services [1985] AC 930, was stressing that the legislative test is of ability to "walk", that is of the general ability to make the physical movements of the feet involved in walking. In my judgment, his references to inclines and declines were to the normal undulations and irregularities reasonably to be expected in outdoor surfaces, not to tracks which involved the claimant being significantly higher or lower at the end point than at the start point. I am prepared to accept, following CSDLA/44/2202, that kerbs would be included in the normal irregularities to be expected, as would, say, the changes in level encountered in walking on a pavement in a residential area with driveways. However, I would not go as far as suggested by Mr Robinson.
17. Thus, in the present case, I accept that the appeal tribunal's error in the interpretation of the EMP's evidence added to the general inadequacy of reasons which I have already identified. Especially in the light of the written submission from Darlington CAB, the appeal tribunal needed to say something more to relate the EMP's estimate, and the limits of what could safely be inferred from her actual answer, to the claimant's ability to walk in the reasonable outdoor conditions contemplated by R(M) 1/91. However, I do not think that there is anything to suggest that in reaching its own conclusion on whether the claimant was virtually unable to walk the appeal tribunal applied a test that was in any way inconsistent with the requirements of R(M) 1/91 or, more important, the provisions of regulation 12(1)(b) of the Disability Living Allowance Regulations. Nor was there any inconsistency with CSDLA/44/2002, as no particular problem with kerbs was put forward for the claimant.
18. On the view which I have taken above, I do not then need to pursue the delegation of adjudication argument, as was recognised by Mr Robinson at the oral hearing. It is the task of appeal tribunals to evaluate the evidence which they actually have, subject to any submissions which are made about the weight to be given to any particular elements.
19. Accordingly, for the reason given in paragraph 10 above, as amplified in paragraph 17, I set aside the appeal tribunal's decision of 2 June 2003 as erroneous in point of law and refer the claimant's appeal against the decision of 22 August 2002 to a differently constituted appeal tribunal for determination in accordance with the directions below. No-one who was a member of the appeal tribunal of 13 November 2002 or of the appeal tribunal of 2 June 2003 is to be a member of the new appeal tribunal which conducts the rehearing.
20. There must be a complete rehearing of the appeal on the evidence presented and submissions made to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunals of 13 November 2002 and 2 June 2003 on either the mobility component or the care component. The new appeal tribunal must follow the legal approach set out above to the test of virtual inability to walk, but I need give no further directions of law about the conditions of entitlement to DLA. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new appeal tribunal.

(Signed) J Mesher

Commissioner

Date: 18 May 2004