UK Social Security and Child Support Commissioners' Decisions

 


[2007] UKSSCSC CDLA_3896_2006 (03 January 2007)

CDLA 3896 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. With the agreement of both parties, I replace that decision with the decision that the tribunal should have made. This is:

Appeal allowed. The appellant is entitled to the higher rate of the mobility component of disability living allowance from and including 21 03 2006 for a period of two years. She is not entitled to any level of the care component in respect of the claim made on that date.

2. The claimant and appellant is appealing with my permission against the decision of the Wakefield appeal tribunal on 1 09 2006 under reference U 01 008 2006 01555.
3. The parties have agreed that I should set aside the decision of the tribunal, and replace it with the decision set out above, for the reasons given in my grant of permission to appeal. As they raise issues about handling evidence about severe discomfort I set them out in full.
4. This appeal relates only to the claim that the appellant is entitled to the higher rate of the mobility component of disability living allowance because she is virtually unable to walk without severe discomfort. The focus of the argument before the tribunal was on the level of discomfort that the appellant suffers when walking. And the tribunal recorded her pain when walking. The tribunal failed to consider the very question it was asked to consider. The phrase "severe discomfort" is not even mentioned in the statement of reasons.
5. The evidence of the appellant that, at the time of her claim and the decision on it, she was virtually unable to walk without severe discomfort is clearly there. Assessment of that discomfort should take into account both discomfort while waking and discomfort caused by walking that continues afterwards. Both factors are relevant in this case.
6. The appellant's evidence is supported by medical confirmation of her pain and of the high levels of morphine she was taking daily under proper medical supervision. The evidence from both medical witnesses is of a claimant receiving high levels of morphine doses daily causing dizziness, lack of concentration and low blood pressure, but not stopping the pain. The approved doctor records also that walking aggravates the pain. She is under review by two separate teams of specialists as well as receiving treatment from her general practitioner.
7. The approved doctor's report states both that the appellant is able to walk round a supermarket most days (a statement noted by pencil marks on the report in the papers) and that the pain is aggravated by walking round a supermarket (not marked by pencil marks in the report). The tribunal should therefore have specifically considered if she was walking without severe discomfort or despite it, and failed to do so. It has also failed to consider the after-effects of walking on the appellant. The approved doctor's report fails to bring together the two separate findings noted above, and the tribunal appears (from the pencil marks and its reasons) to have relied on one and ignored the other. This is probably because this is yet another example of the computer automatically carrying forward some, but not all, of the relevant statements recorded in Box 7 of the IB85 form to the appropriate individual descriptor (in this case box 12). This also suggests that the tribunal failed to check across between box 7 and box 12 and therefore failed to read all the relevant evidence. If an IB85 is put in evidence in a disability living allowance case then the tribunal must ensure that it takes account of all relevant parts of the form and does not look just at Activity 1 and box 12. The tribunal has erred in law in the way it handled the evidence and/or explained its decision. With the agreement of both parties I set its decision aside.
8. Taking a broad view on all the evidence, the evidence establishes on the balance of probabilities that the appellant was, within the definition in the regulations, virtually unable to walk without severe discomfort, that discomfort being linked at least in part to walking. In so finding, I take the view that the evidence of the appellant, supported by the evidence of the doctors and of the high level of morphine she is being given to combat her pain, together show that the level of pain during and as a result of walking is such that she clearly suffers severe discomfort from walking of an extent that renders her virtually unable to walk for the purposes of the regulations. It is also clear that this condition existed for at least three months before the date of claim.
9. The appellant accepts that she is not entitled to the care component, and I see no reason to disturb that aspect of the decision, which I therefore adopt. Both parties now consent to the award of the higher rate of the mobility component for a period of two years without a further hearing. I make the formal decision accordingly.

David Williams

Commissioner

3. 01. 2007

[Signed on the original on the date stated]