UK Social Security and Child Support Commissioners' Decisions

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Cite as: [2008] UKSSCSC CSDLA_627_2007

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[2008] UKSSCSC CSDLA_627_2007 (18 January 2008)

DECISION OF SOCIAL SECURITY COMMISSIONER

Decision

I find no error of law in the decision of a tribunal sitting in Glasgow on 7 September 2007 (the tribunal). The tribunal's decision therefore stands.

Background

The appellant made a new claim for disability living allowance (DLA) on 24 January 2007. In his DLA claim, the claimant spoke of "severe back pain/asthma/bronchitis/arthritis" and said that he could only walk a maximum of 20 metres before feeling severe discomfort, which distance would take him 10 minutes, he needed the support of another because of the risk of his knee collapsing and that he had anxiety and panic attacks which required someone to be with him when out of doors.

His general practitioner (GP) on 1 March 2007, described as "moderate" the four conditions of back pain, asthma, left knee arthritis and low mood. It was the GP's opinion that the appellant would be breathless on exertion with a slow pace of walking and a left leg limp.

The appellant was examined by an examining medical practitioner (EMP) on behalf of the Department on 14 May 2007. In the EMP's opinion, following clinical examination and observation, the claimant had full function in all limbs, with no evidence of muscle wasting and, in particular, no abnormality noted in the left knee; straight leg raising on both the right and the left was normal, as was the appearance of spinal movements, and no spinal tenderness was noted; he could sit forward without distress when on the sofa with his abdomen and chest touching his knees. He was not breathless when he rose easily and walked "at ease" around the room. However, he used a stick in his right hand on which he leant heavily and, on formal observation, had a slightly unsteady and stiff gait. No mental health factor was identified by the EMP. It was the EMP's opinion that the appellant could walk 350 metres before severe discomfort, at a speed of 75 metres a minute with no halts, using a walking stick and having a stiff, slightly unsteady, gait but with no significant discomfort, pain or breathlessness on walking; further, the EMP considered there was no reason why guidance or supervision out of doors on unfamiliar routes would be required.

The tribunal hearing and decision

The appellant attended the hearing with his representative, a local welfare rights officer (the representative). The tribunal confirmed the adverse decision under appeal to it; this was a decision of a decision maker (DM) on behalf of the Secretary of State made 15 March 2007 to the effect that the claimant was not entitled to an award of DLA, either component at any rate.

In its findings of fact, the tribunal said:

"… although he may prefer to have someone with him whilst walking out of doors, he is capable of doing so without assistance even on unfamiliar routes".

In its reasons, the tribunal stated as follows with respect to entitlement to the lower rate of the mobility component of DLA (lower mobility):

"The Tribunal next considered the submission that the appellant is entitled to the lower rate of the mobility component. He advised in his claim form that he suffered from anxiety and panic attacks and that he was concerned that he may fall and needs someone to help and support him. In the report by his G.P. it is noted that the appellant suffers from low mood and that this condition is moderate. He does state that the appellant has good insight and awareness of danger. There is no indication in this report of any history of anxiety or panic attacks or of any referral to psychiatric services in respect of the appellant's mental health. He advised the EMP that he needs to be accompanied out of doors as he is concerned about his left knee giving way or having a blackout. The appellant makes no reference at this point to any issues with anxiety or panic attacks. In his evidence to the Tribunal, when asked about his panic attacks he advised that he had them frequently if in a strange place. He advised the Tribunal that, although he could not read a map, he could ask for, and then follow, directions given and that he would be prepared to ask for directions. When subsequently asked by his representative if he could go to an unknown area he advised that he could not do so unless he was accompanied. The Tribunal considered there to be a degree of exaggeration on the part of the appellant as to the difficulties which he experiences whilst walking out of doors in unfamiliar places which cast doubt as to the credibility of the evidence as presented by him. The Tribunal preferred the evidence of the EMP being based on clinical examination of the appellant, his clinical history and observations of him throughout the examination. Accordingly the Tribunal found that the appellant did not require to be accompanied for most of the time whilst walking out of doors even on unfamiliar routes."

Appeal to the Commissioner

The complaint made by the representative on the appellant's behalf is, in effect, that the tribunal has failed to disregard ability on familiar routes:

"It is clear that the tribunal in stating 'he is capable of doing so without assistance' have taken account of his ability on familiar routes. This is emphasised by them going on to mention unfamiliar routes".

Leave to appeal was given by a district chairman. The appeal is not supported by the Secretary of State and I agree with that lack of support. Although it is reiterated in the response to the Secretary of State's submission that there was an error of law in the way the tribunal reasoned, I do not accept that.

My conclusion and reasons

The statutory provisions for entitlement to lower mobility are in s. 73 of the Social Security Contributions and Benefits Act 1992 (the Act), the relevant parts of which read:

"73. – (1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of disability living allowance for any period in which he is over the relevant age and throughout which –

……

(d) he is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time."

In CSDLA/12/03, cited by the representative, at paragraph 28 I gave the two usual questions relevant to entitlement to lower mobility:

"(a) First of all, [a tribunal] must determine whether, through disablement, the appellant is unable to walk on familiar routes without guidance or supervision, in which case he satisfies;

(b) However, if the appellant does not qualify in this way, the tribunal must then ask if it is different if the routes are unfamiliar viz. is the appellant unable to walk on such routes without guidance or supervision? If he is not so able, he satisfies."

If a claimant is unable to walk even on familiar routes without guidance or supervision, then it logically follows that he will also be unable to do so on unfamiliar ones; but the converse does not apply. It will depend upon the nature of the claimant's condition. If the complaint is of a bad left knee causing falls, then the difficulties are likely to be the same whether the route is familiar or unfamiliar; however if, for example, a claimant has genuine anxiety and panic, then what he is able to do on a familiar route does not necessarily govern his capacity on an unfamiliar one.

The present tribunal, in effect, ran together the two stage process; however, that is not a problem provided the relevant issues are in substance addressed, and the tribunal did so. It first of all explained (when rejecting entitlement to the higher rate of the mobility component) why it refused to accept the claimed physical difficulties in the present case (particularly the asserted collapses of the appellant's left knee), which were in the circumstances relevant also to an ability both on familiar and unfamiliar routes. It then turned to the assertion about anxiety and panic attacks, which had greater significance with respect to unfamiliar routes. For reasons it fully explained, the tribunal refused to accept that any of these claims were other than exaggerated. No error is demonstrated in the way the tribunal weighed the evidence and it was entitled to rely, if it wished, on the EMP's report.

In consideration of the legal criteria for entitlement to lower mobility, there must be ignored any ability to use familiar routes, albeit not an inability. However, when considering whether the claimant is unable to walk on unfamiliar routes without guidance or supervision, it may be evidentially relevant to that question as a matter of fact what, if any, are his difficulties with familiar routes. When a claimant does not differentiate between problems on familiar and unfamiliar routes, and there is nothing inherent in his condition to suggest a relevant distinction, then if he is unable to satisfy a tribunal that he has the required difficulty on familiar routes, in a context where the onus of proof on all matters lies on him, a tribunal may legitimately infer that he therefore would not need guidance or supervision on unfamiliar routes either. It is not that an adjudicating authority is requiring as a matter of law that he has difficulties on familiar routes before it will accept entitlement to lower mobility but rather that, from all the evidence, when considering his capacity on unfamiliar routes, it makes deductions from the information about his ability on familiar ones. A tribunal usually has to so reason because a claimant often says that he never walks on unfamiliar routes, which is entirely understandable.

In the present case, the tribunal correctly considered that, if the claimant genuinely suffered from anxiety and panic, this could make a material difference to his capacity on unfamiliar routes when compared with familiar ones. This is the clear implication of its reasoning. However, the tribunal was not satisfied of the genuine nature of his alleged problems, whether physical or mental; it neither applied the wrong legal approach nor, having regard to the evidence, drew any irrational conclusions and its explanation of which evidence was accepted, and which rejected, and why, was impeccable. It is apparent from the tribunal's whole reasoning that it answered "no" to both the sequential questions posed in my paragraph 11 above.

The statutory test for lower mobility must be read as a whole. The crux of the test is that a claimant qualifies who, through disablement, cannot reasonably be expected to walk out of doors without guidance or supervision most of the time, either on all routes or, at least, on unfamiliar ones. It is to underscore that the latter less extreme situation is nevertheless legally significant that the phrase 'disregarding any ability he may have to use routes which are familiar to him on his own' is used; to that legal extent an ability to use familiar routes must be ignored. But if an ability to walk on familiar routes without guidance or supervision logically points, as a matter of evidence, to a similar ability on unfamiliar ones, such a deductive approach is not precluded. Any other reading would be non-sensical. The disregard prohibits a legal barrier through reliance on 'any ability he may have to use routes which are familiar to him on his own' but does not prevent consideration of it as an evidential tool when determining an ability on unfamiliar ones.

Summary

For the above reasons, in my view, no error of law is demonstrated and therefore the tribunal's decision stands.

(Signed)

L T PARKER

Commissioner

Date: 18 January 2008