UK Social Security and Child Support Commissioners' Decisions

 


[2007] UKSSCSC CDLA_2423_2007 (29 October 2007)

Decision

1. The claimant's appeal succeeds. The decision given by Liverpool appeal tribunal under reference 063/07/00067 on 21 February 2007 is wrong in law. I set it aside and I refer the case to a differently constituted tribunal ("the new tribunal") for determination in accordance with the directions at paragraph 22 below. Those directions are addressed to the appellant's mother as well as to the new tribunal and I draw her attention to the time limit that I have imposed.

Reasons

Introduction

2. On the last date I am permitted to consider, the appellant was 7 years old. Her mother is making this appeal on her behalf.
3. The appellant has suffered since birth from a rare vascular malformation. That condition, which has yet to be confidently diagnosed, is said by a Consultant Clinical Geneticist to be similar to both Kippel-Trenauway Syndrome and Macrocephaly Cutis Marmorata Telangiectasia Congenita.
4. The most important functional consequence of the appellant's condition is a hypertrophy of the right side of her body. In plain English, that means that the right side of her body, and in particular her right leg, is bigger than the left. The extent of that disparity is such that her right foot is two shoe sizes larger than the left.

The appellant's claims for disability living allowance

5. From 8 March 2002 to 7 March 2007, the appellant received the higher rate of the mobility component of disability living allowance, which was awarded to her on the basis that she was virtually unable to walk. The following evidence was available to the Secretary of State when he made that award:

(a) the mother's estimate in the claim pack that the appellant could walk half a mile before she had to stop because of severe discomfort and that it would take her 60 minutes to walk that far; and

(b) a report from a visiting doctor dated 9 May 2002 (when the appellant was 3½), which found her to have substantial impairment of her left leg (which was measured to be 4 centimetres shorter than the right) with "considerable" muscle wasting. The visiting doctor's opinion was that the appellant "could only average about 50 metres and would then ask to be carried" and that the appellant would walk with a slight limp and would be prone to falling.

6. On 20 September 2006, the mother submitted a renewal claim on the appellant's behalf. Asked about the appellant's walking difficulties, the mother stated:

'[The appellant] struggles walking long distances and up steep hills. We have to take her special needs buggy everywhere we go"

She said that the appellant had such difficulties 3-4 days a week, and more frequently if she was having a bad time with her joints. She also explained that the appellant's joints and legs got very sore and that, together with the disparity between the right side of her body and the left, this affected the appellant's balance so that she would frequently fall over.

7. However, when asked how far the appellant could walk before she had to stop because of severe discomfort, the mother replied "3 miles" and that, on good days, it would take her "30/40 minutes" to walk that far.
8. On 9 October 2006, a decision maker acting on behalf of the Secretary of State accepted that the appellant was able to walk 3 miles within a reasonable time and decided that she was therefore no longer virtually unable to walk. As a result, she declined to renew the appellant's award of disability living allowance from 8 March 2007. The decision maker relied upon the mother's estimate and did not obtain any up-to-date medical evidence before reaching a decision.

The appeal to the tribunal

9. The mother appealed against that decision on the appellant's behalf. For some reason, there were two notices of appeal. The first stated:

"On the claim form I said [the appellant] could walk 3 miles on a good day. She is in a lot of pain doing this. On a bad day she can only walk a little way which could be just 1 block of houses. I have to make her walk further each time or her joints start to get stiff."

The second stated:

"I said [the appellant] could walk 3 miles on a good day on the form, but normally it is just 2 blocks of house [sic]."

The mother requested that the appeal should be considered without an oral hearing.

10. The appeal came before Liverpool appeal tribunal on 21 February 2007 and, having considered the papers (which still contained no recent medical evidence), the tribunal refused the appeal and confirmed the Secretary of State's decision.
11. It reached that decision on the basis that:

"… on a reasonable day [the appellant] can walk 3 miles in 30/40 minutes and, on a poor day … a block of houses. The tribunal considered [the appellant's] likely gait and rejected the higher rate descriptor [sic]."

12. The appeal to the Commissioner is against that decision and is brought with my leave.

Reasons for the commissioner's decision

13. Both parties are agreed that the tribunal's decision is wrong in law and that I must set it aside. I do so because the finding of fact that "on a reasonable day [the appellant] can walk 3 miles in 30/40 minutes" is (at best) inadequately explained and (at worst) a finding that no tribunal could reasonably have made.
14. As I stated when granting leave to appeal, the average walking speed of an able-bodied adult woman under the age of 50 is 3.1 miles per hour (source: Research on Road Traffic (HMSO 1965)). Such a woman would cover a distance of 3 miles in a little over 58 minutes. The walking speed that is implied by the tribunal's finding is between 4.5 and 6 miles per hour. It is overwhelmingly improbable that an eight year-old girl with well-documented physical defects in her legs should have a walking speed that exceeds that of an able-bodied adult woman by a factor of between 45% and 93%.
15. I acknowledge that the tribunal's finding was based on the direct evidence of the appellant's mother. However, it is not uncommon for claimants to have difficulties in estimating distance and speed and the papers contain no fewer than four widely divergent estimates given by the mother over the years. I suspect that if the tribunal had had to assess the mother's earlier evidence that it would take the appellant 60 minutes to walk half a mile, it would have had no difficulty rejecting it because of the improbably slow walking speed that was implied. In my judgment, the tribunal was bound to take a similarly questioning attitude to evidence that implied an improbably fast walking speed. At the very least, it was obliged to explain in greater detail why it accepted that evidence despite its improbability.
16. What should the tribunal have done in this case? It had no up-to-date medical evidence. The only estimates of the appellant's walking abilities came from the mother. Those estimates were inconsistent and could not be accepted at face value. The report of the visiting doctor was useful background and of probative value to the extent that it confirmed that the appellant had a congenital condition that was likely to restrict her walking ability. However, it was over four years old and, particularly given the appellant's age, could not be regarded as determinative of the question facing the tribunal.
17. Faced with those circumstances, the tribunal was in the position that it could not reach a decision on the papers: it could not make findings of fact on the appellant's walking abilities without evidence and there was no relevant evidence before it that it could properly accept. It was therefore necessary to explore the mother's evidence in greater detail and, possibly, to obtain more recent medical evidence.
18. As this was a case in which an oral hearing was necessary for the tribunal to reach a decision, it should have adjourned with directions that such a hearing be held and explained to the appellant's mother why it was necessary for her to attend.
19. A further reason for directing an oral hearing of this appeal was that the appellant is a child who did not have the benefit of professional advice or representation. I am sure that her mother has done her very best to explain the appellant's case but, through no fault of her own, she does not appear to have any particular experience of how the social security system operates and may not realise the importance of expressing herself with precision when dealing with the Department. It is also clear that she shares the difficulties experienced by many people when estimating distance and time. As the main problem facing the tribunal was the inconsistency and improbability of the mother's evidence, those considerations should have weighed heavily in favour of an oral hearing: a tribunal should be careful not to permit the interests of a child to be prejudiced by inadequate representation.

Conclusion

20. For those reasons, I conclude that the tribunal's decision is wrong in law and must be set aside. This is not an appeal in which it would be expedient for me to substitute my own decision for that of the tribunal. It is preferable that the decision on the facts should be taken following an oral hearing before a tribunal that includes a medically-qualified panel member and a disability qualified panel member. I have therefore referred the case to the new tribunal.
21. The appeal to the Commissioner has succeeded for legal reasons and I should emphasise that the decision on the facts remains open. The new tribunal will now make that decision on the basis of all the evidence that is made available to it. It is not bound by the findings or reasoning of the previous tribunal. The fact that the appeal has succeeded at this level does not necessarily indicate anything about what the new tribunal will decide.

Directions

22. I give the following directions

To the new tribunal

(a) The new tribunal may not include any person who was also a member of the tribunal that gave the decision referred to at paragraph 1 above.

(b) The new tribunal must hold an oral hearing of the appeal.

(c) At that hearing, the new tribunal must conduct a complete re-hearing of all the issues that arise on the appeal and, subject to the exercise of its discretion under section 12(8)(a) of the Social Security Act 1998 ("the Act"), of any other issue that it is expedient to decide.

(d) The new tribunal may not, however, take into account any change of circumstances that occurred after 9 October 2006, the date of the Secretary of State's decision.

(e) Bearing in mind what I say at paragraph 19 above, if the mother is unable to provide the new tribunal with contemporaneous medical evidence, it should consider whether to exercise its power to obtain further medical evidence itself. However, the decision to seek further medical evidence is one for the new tribunal to make and the mother should not assume that it will automatically do so. The fact that any new evidence must deal with, or at least be capable of being related back to, the appellant's condition in October 2006 may be relevant to the tribunal's decision on this point.

(f) I remind the chairman of the new tribunal that if the tribunal does not renew the former award of disability living allowance, or if it renews it at a lower rate, then any statement of reasons must include the explanation required by paragraph 15 of R(M) 1/96.

To the mother

(g) It is very important that the mother should attend the oral hearing because the new tribunal will certainly want to ask her some further questions.

I have to warn the mother that if she does not attend, then—in the current state of the evidence—her daughter is likely to lose her appeal. That is because it is for the mother to prove that her daughter is entitled to the benefit that she has claimed. As I have set aside the tribunal's decision, she now has a further opportunity to provide the evidence needed to do that. If, after holding an oral hearing, the new tribunal still does not have the evidence it needs to reach a decision, then it will have to decide the appeal on the basis that the mother has not discharged that burden of proof.

(h) If possible, the mother should also provide the Tribunals Service with more recent medical evidence from her GP or from a Consultant. That evidence should set out what the appellant's condition was in October 2006, rather than at the present day. If possible, it should also include an assessment by the doctor of how her condition affected the appellant's ability to walk.

The additional evidence should be received by the Tribunals Service within one month from the date on which this decision is sent to the parties.

(i) I also recommend that the mother should seek advice and representation from a Citizen's Advice Bureau, a Law Centre, a local authority welfare rights service, or a similar organisation. An adviser may be able to help her obtain the necessary medical evidence.

(Signed on the original)

Richard Poynter Deputy Commissioner 29 October 2007