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[2008] UKSSCSC CDLA_2738_2007 (11 February 2008)

CDLA/2738/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the claimant's appeal. I set aside the decision of the Northampton appeal tribunal and I substitute a decision that, from 3 September 2006 to 30 January 2007, the claimant is entitled to the higher rate of the mobility component of disability living allowance but not to the care component.

REASONS

The claimant had been entitled to the higher rate of the mobility component, but not the care component, since at least 2001 and her award was due to expire on 2 September 2006. On 7 April 2006, she submitted a further claim. This was treated as a renewal claim effective from 3 September 2006 and, on 31 May 2006, the higher rate of the mobility component was awarded from 3 September 2006 for an indefinite period. However, the claim for the care component was disallowed. The Secretary of State refused to revise the award and the claimant appealed. On 30 January 2007, she appeared before the tribunal in person, her representative being on leave. The tribunal warned her that the award of the mobility component was at risk and that she had three options, to proceed that day, to ask for an adjournment and take advice or to withdraw her appeal. The claimant elected to go ahead, having been warned by her representative beforehand of the possibility of the mobility component being considered. The tribunal decided that the claimant was not entitled to either component of disability living allowance from 3 September 2006. The claimant now appeals against the tribunal's decision, with my leave.

It is common ground that the tribunal's decision is erroneous in point of law. In respect of the higher rate of the mobility component, the claimant's evidence to the tribunal was that she suffered continual pain in her legs and was able to walk only 40-50 metres before having to stop due to the severity of the discomfort. Having stopped, standing was itself painful. She shopped in Tesco Express rather than a large supermarket because she could not walk round a large supermarket. She said that it would take her 8-10 minutes to walk 40-50 metres but she accepted that the tribunal had seen her walk that distance from her car in 2 minutes, although she said she was in quite a lot of pain. The tribunal said –

"The appellant is able to walk about 50 yards slowly in about 2 minutes, as was observed by the tribunal. She has no falls or stumbles. Her evidence of the ensuing fatigue does not amount to the exertion required being likely to lead to a serious deterioration in her health. The appellant is able to walk round Tesco Express to do her shopping if a friend collects the shopping for her. The tribunal finds that on the balance of probabilities the appellant cannot be said to be virtually unable to talk. An award of higher rate Mobility Component is not appropriate."

The parties submit that the tribunal has failed to record adequate reasons for its decision, not having dealt with the evidence that the claimant's condition was variable and not having dealt with the manner in which she walked. They also submit that the tribunal has failed to explain why, on its own findings, it found the claimant not to be virtually unable to walk.

In the circumstances of this case, I am not sure that I accept either of those submissions put like that. However, there is a related point to which I referred when granting leave to appeal. In R(IB) 2/04, the Tribunal of Commissioners made it clear that, when exercising the discretion whether to give a decision less favourable to the claimant than the one under appeal, there must –

"be a conscious exercise of the discretion and (if a statement of reasons is requested) some explanation in the statement as to the reason why it was exercised in the manner it was. In exercising the discretion, the appeal tribunal must of course have in mind, in particular, two factors. First, it must bear in mind the need to comply with Article 6 of the Convention and the rules of natural justice. … Second, the appeal tribunal may consider it more appropriate to leave the question whether the original decision should be superseded adversely to the claimant to be decided subsequently by the Secretary of State. This might be so if, for example, deciding that question would involve factual issues which do not overlap those raised by the appeal, or if it would necessitate an adjournment of the hearing."

The Secretary of State submits that the tribunal ought to have adjourned the case before it, but I do not agree. It offered the claimant the chance of applying for an adjournment and it was entitled to go ahead when she declined the opportunity, not having been taken entirely by surprise. It is the lack of explanation for not accepting the Secretary of State's unchallenged decision in respect of the mobility component that is the flaw in the tribunal's decision. This was a borderline case. The tribunal was entitled to take the view that the claimant was not virtually unable to walk but the Secretary of State was equally entitled to take the opposite view. Where a tribunal's findings are not materially different from the Secretary of State's and the Secretary of State's conclusion in favour of the claimant is not perverse, a tribunal should be slow to interfere and must, in accordance with the R(IB) 2/04, give reasons for considering it necessary to do so. No reasons were given in this case and the claimant was entitled to some explanation for the sudden loss of entitlement to a benefit she had been receiving for more than five years.

The subsequent history of this case illustrates graphically why reasons are required. The day after the tribunal's decision, the claimant made another claim for disability allowance and she was eventually awarded, with effect from 31 January 2007, both the higher rate of the mobility component and the lowest rate of the care component. In the absence of any explanation by the tribunal for differing from the Secretary of State's previous decision, there was nothing to cause him not to stand by his original judgment. Presumably the claimant had been paid the mobility component up to the date of the tribunal's decision so that, ultimately, the only beneficial effect of tribunal's decision not to award that component was to prompt the claimant to make another claim for the care component. Less happy effects were the claimant's need to make another claim for the mobility component and her need to launch the appeal that I am now considering.

Against that background, I am not minded to refer this case to another tribunal. The Secretary of State has never suggested that the claimant was not entitled to the higher rate of the mobility component during the period left in issue. The claimant has in fact, I presume, received payments throughout that period and there can be no realistic suggestion that any overpayment might be recoverable if the award were not restored. Equally, neither of the grounds of appeal against the tribunal's decision was directed towards the tribunal's decision in respect of the care component and I see no obvious error of law that undermines the tribunal's decision in respect of that component. The subsequent award of the care component is not inconsistent with the tribunal's decision, given that the tribunal was concerned with entitlement in respect of an earlier period and was not permitted to have regard to any change of circumstances after 31 May 2006 (see section 12(8)(b) of the Social Security Act 1998 and R(DLA) 4/05). Accordingly, I give the decision set out in paragraph 1 above.

(signed on the original) MARK ROWLAND

Commissioner

11 February 2008