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[2008] UKSSCSC CDLA_3292_2007 (13 February 2008)

CDLA/3292/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This is an appeal by the claimant against the decision of the Hull Appeal Tribunal given on 11^th June 2007. By their decision the tribunal dismissed the claimant's appeal against the decision of the decision maker made on 9^th November 2006 that the claimant was not entitled to either component of disability living allowance. The Secretary of State does not support the appeal. Nevertheless, for the reasons set out below, I have concluded that the decision of the tribunal was erroneous in point of law and must be set aside. The case must be remiitted to be heard by a new tribunal constituted, differently from the previous tribunal, under Part I of the Social Security Act 1998.

It is not disputed that the claimant suffers from lower back pain, panic attacks, depression and hypertension. Of those conditions, the ones which principally featured before the tribunal were the claimant's back pain and her panic attacks. As explained in the tribunal's statement of reasons for their decision (paragraph 4), her contention before the tribunal was that:

(1) she was entitled to the higher rate of the mobility component of disability living allowance;

(2) alternatively, she was entitled to the lower rate of the mobility component;

(3) in any event, she was entitled to the lowest rate of the care component.

The argument was that the claimant was virtually unable to walk as a result of her back pain, that her susceptibility to panic attacks meant that she needed guidance and supervision to walk out of doors and that her back pain gave rise to certain personal care needs.

The substance of the tribunal's decision on those three points was:

(1) that (as the tribunal found as a fact: see paragraph 5(c)) although the claimant's walking ability was limited by her condition, she was able to walk with a limping gait for a distance of 50 to 100 yards. Looking at her walking ability overall she could not be said to be virtually unable to walk and so was not entitled to the higher rate of the mobility component;

(2) that (again as the tribunal found as a fact: see paragraph 5(d)) although the claimant suffered from panic attacks, she was able to cope with the onset of such an attack. She was therefore not in need of guidance or supervision when out of doors and so was not entitled to the lower rate of the mobility component;

(3) that the claimant did have some personal care needs, but that the time required to give her the necessary assistance did not amount to a significant portion of the day (paragraph 8) and her lower back pain did not have the effect that she could not prepare a cooked main meal for one person (paragraph 9). She was therefore not entitled to the lowest rate of the care component.

The grounds of appeal put forward by the claimant's representative on her behalf concentrate on her claim to the higher rate of the mobility component. It is said that the tribunal relied on a report from the claimant's G.P. that she could probably only walk 50 to 100 yards "without being in severe pain". The representative points out that regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991, S.I. 1991 No. 2890, requires consideration of the claimant's ability to walk "without severe discomfort", a lower threshold than severe pain, and argues that the tribunal failed to follow the guidance in R(M)2/92.

In addition it is said that it is not patently clear which evidence the tribunal preferred. It is contended that the tribunal failed to determine what evidence they accepted and what evidence they rejected, so as to form the factual basis for their decision, and reference is made to the case of R(DLA)3/99.

In giving leave to appeal, Mrs. Commissioner Jupp said that leave was given for further consideration of whether the tribunal erred in law by adopting the test impliedly used by the claimant's G.P., that is, that the claimant could only walk 50 to 100 yards without being in severe pain. She pointed out that the G.P. had been asked to comment on the distance the claimant could walk before she had to stop due to severe discomfort, which again is not the correct statutory test.

Regulation 12(1) provides, so far as material:

"A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) of the Act (unable or virtually unable to walk) only in the following circumstances –

(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to place or, or nature of, employment –

(i) he is unable to walk; or

(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk."

It is not suggested that the claimant is unable to walk. The question raised by the claimant in her grounds of appeal is whether, in considering the extent of the limitations on the claimant's ability to walk for the purpose of deciding whether or not she was virtually unable to walk, the tribunal applied a wrong legal test when having regard to the distance, speed, time and manner in which the claimant can make progress on foot. The suggested error is that they considered those elements in relation to her ability to do so without severe pain rather than without severe discomfort.

In R(M)2/92 (Cassinelli v. Secretary of State), to which the claimant's representative refers, the Court of Appeal decided that a tribunal which had considered whether there was "evidence of severe pain or distress" had applied the wrong test. I accept that if the tribunal in the present case did apply the test of severe pain rather than severe discomfort, there was an error of law. I also accept that the Court of Appeal seems to have approved the acceptance by both parties that "severe pain" is a more serious condition than "severe discomfort".

It is to be noted, however, that there is no general acceptance that a claimant who suffers pain on walking is necessarily suffering severe discomfort. Various authorities on the relationship between pain and severe discomfort were reviewed in R(DLA)4/98 by Mr. Commissioner Williams, who concluded that a finding that a person suffers pain is not sufficient to determine whether the person suffers severe discomfort: see paragraphs 13 and 14. All the evidence must be considered. Further, as he pointed out in paragraph 13, the severity of the discomfort is to be measured in the context that the question being asked is whether the claimant is virtually unable to walk. This decision was followed by Mrs. Commissioner Parker in R(DLA)4/03, who gave further general guidance in the light of the case law in paragraph 20 of her decision.

The question for me, then, is whether, looking at the tribunal's decision as a whole and bearing in mind the effect of both R(M)2/92 and the decisions referred to in the preceding paragraph as to the correct approach, this tribunal applied a wrong legal test.

As noted above, the tribunal's finding of fact is contained in paragraph 5(c) of the statement of reasons. It is in the simple terms:

"We therefore find [the claimant] is able to walk between 50 and 100 yards with a limping gait. It is noted that she uses a walking stick as an aid to walking and with this her balance will be good."

The tribunal have not incorporated directly into that finding any elements relating to time or speed or any reference to either severe discomfort or severe pain. It is therefore necessary to consider the preceding parts of the statement to decide whether the full test in regulation 12(1)(a)(ii) was applied or some different test.

In performing that exercise, I note the following:

(1) at the beginning of paragraph 5(b) the tribunal stated that the claimant's evidence "as to the distance she is able to walk before the onset of severe discomfort" was inconsistent. The material demonstrating inconsistency was then set out. It included a reference to the consequences as stated by the claimant of trying to walk more than 100 yards, contrasted with her initial statement that she could only walk 0 to 10 metres before the onset of severe discomfort would require her to stop;

(2) at the beginning of paragraph 5(c) the tribunal summarised the relevant clinical findings of the examining medical practitioner (which included findings that all joints were normal, reflexes were normal, there was no wastage of the leg muscles and there was no loss of power or sensation in any of the limbs) and his observation of the claimant walking with a slight limp with normal balance. The tribunal then referred to the examining medical practitioner's assessment, stated to be that:

"whilst she had some discomfort on walking, [the claimant] was able to walk 100 metres before the onset of severe discomfort, although she [might] require a halt after 50 metres";

(3) the tribunal then described the examining medical practitioner's assessment as "supported" by the evidence of the claimant's own G.P, which was set out as being that:

"her walking ability varies according to the level of pain experienced and … realistically she can probably walk only 50 to 100 yards without being in severe pain".

The tribunal took into account that the claimant said she was a regular attendee at her G.P.'s surgery and he would therefore be very familiar with her condition.

That material suggests strongly to me that the tribunal, having heard the claimant give oral evidence and having considered her evidence overall, found it unhelpful because of its inconsistency, but for that purpose applied the correct test of severe discomfort. They then turned to the evidence of the examining medical practitioner, which was similarly couched in terms of severe discomfort and also dealt with the speed of the claimant's walking. It is to be noted that he seems to have accepted the claimant's self-description that she suffered pain on walking (see pages 62 and 63); the word "discomfort" is the tribunal's. Having referred to that evidence, the tribunal then considered whether or not it was supported by the G.P.'s assessment and found that it was. Unfortunately, the tribunal did not comment on the G.P.'s use of the word "pain" rather than "discomfort".

Having made their findings of fact, the tribunal went on to give reasons. Their reasons in relation to the claimant's walking ability are set out in paragraph 6 of the statement. Again the emphasis is on the inconsistency in the claimant's own evidence, which is elaborated upon, and on the assessment of the examining medical practitioner. Reference is made to the use of painkillers and the absence of any reference to the pain clinic. The tribunal speaks of severe discomfort and discomfort and not of severe pain. Again the evidence of the G.P. is referred to in a secondary way, this time on the footing that the assessment of the examining medical practitioner is consistent with the G.P.'s assessment. The variable nature of the claimant's condition is noted. Again there is unfortunately no reference to the G.P.'s having spoken of severe pain.

Finally the tribunal expressed their conclusion as follows:

"Although [the claimant's] walking ability is limited by her condition, for the majority of the time she is able to walk at a slow pace with a limping gait for a distance of 50-100 yards before the onset of discomfort would necessitate her stopping. Taking an overall view of her walking ability we therefore do not consider she can be said to be virtually unable to walk."

The reference to the ability to walk without the necessity of stopping is linked to the reference to the onset of discomfort and in the context of the statement of reasons overall I take the view that the tribunal had in mind that the claimant would cease walking when the discomfort became severe and the intention was to reflect the assessment of the examining medical practitioner.

Looking at the statement of reasons as a whole I conclude:

(1) that the tribunal had well in mind the fact that the statutory test is a test involving consideration of severe discomfort;

(2) that given the inconsistency of the claimant's evidence, which was in part consistent with the assessment of the examining medical practitioner, the tribunal found that evidence of no assistance unless it was consistent with other evidence;

(3) the tribunal accepted the assessment of the examining medical practitioner, which was consistent with his clinical findings and observations and was made on the correct statutory basis;

(4) the tribunal found support for that assessment in the evidence from the claimant's G.P., but in so doing did not advert to the fact that the G.P. had applied a different test.

In those circumstances, I take the view that the tribunal applied the correct legal test and that this ground of appeal, in the precise form in which it has been put by the claimant's representative, fails.

That, however, is not an end of the matter. It is obvious from the foregoing analysis of the statement of reasons that the claimant's representative was right to submit that the tribunal placed reliance on the evidence of the claimant's G.P. It does not seem to me, however, that the tribunal had in mind the fact that the G.P. was, or might have been, applying a more stringent test than the statutory test and that if the G.P. had considered the claimant's ability to walk without severe discomfort it might not have coincided with the examining medical practitioner's assessment, based as it was on the less stringent test. If, contrary to my view, the tribunal did have that fact in mind, they failed to explain why the G.P.'s evidence was nevertheless to be taken as supporting or consistent with the examining medical practitioner's assessment.

This point has added force when it is observed that in relation to the claimant's personal care needs the tribunal preferred the G.P.'s assessment to that of the examining medical practitioner, the G.P.'s assessment being more favourable to the claimant.

On the basis of the authorities on what constitutes being virtually unable to walk, this case is on the borderline. It is therefore of particular importance that the findings of fact should be made having strict regard to the various elements of the statutory criteria and that the reasons should be adequate to explain the acceptance or rejection of evidence. I conclude that in this difficult case, the tribunal's reasons were not adequate, in that they involved treating two pieces of medical evidence apparently given on the basis of different legal tests as being consistent with each other without explanation. In that respect, there was an error of law on the part of the tribunal.

This does not constitute a failure to determine, in accordance with R(DLA)3/99, what evidence is accepted and what is rejected. It seems to me clear, on a fair reading of the tribunal's statement of reasons, that the tribunal accepted the evidence of both the examining medical practitioner and the G.P. and rejected the evidence of the claimant where it was inconsistent with the medical evidence. The difficulty lies in the treatment of the two pieces of medical evidence as if they were given after application of the same legal test.

It follows that I do not accept the Secretary of State's submission on this appeal. The submission helpfully refers in detail to the evidence relevant to the claimant's ability to walk and acknowledges the error in the test applied by the G.P. but does not confront head on the difficulty I have just identified. It may well be the case that if the tribunal had expressly done so, along the lines suggested by the Secretary of State, they would have reached the conclusion which they did in fact reach, but in the absence of the tribunal's own reasons I am not able to infer that that would necessarily have been the case.

I have considered whether I should substitute a decision of my own for that of the tribunal. Had I done so, it would have been to the same effect as the decision the tribunal made. In the absence of more detailed findings about the level of discomfort experienced by the claimant and its relationship to the pain which it is accepted that she suffers, however, I have come to the conclusion that I should not do so in a case which appears to be on the borderline, as I have said. The claimant should have the opportunity to give oral evidence to a new tribunal and to adduce such further medical evidence as she may see fit.

No ground of appeal was raised in relation to the dismissal of the claimant's claim to the mobility component at the lower rate or to the care component at the lowest rate. I have seen nothing to lead me to the conclusion that the tribunal was in error on those points. It is therefore unnecessary for me to deal further with those aspects of the case.

For the reasons I have given, I allow the appeal and remit the matter to be heard by a new tribunal. The claimant will no doubt wish to consider with her representative whether she should adduce further evidence, but she will need to bear in mind that the tribunal will not be able to take into account any circumstances not obtaining at the time the original decision was made: see section 12(7)(b) of the Social Security Act 1998. The new tribunal should make careful findings of fact on the various elements of regulation 12(1)(a)(ii), having regard to the guidance in the various decisions I have mentioned.

(signed on the original) E. Ovey

Deputy Commissioner

13^th February 2008