Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                           Case No.  CIB/1639/2009

ADMINISTRATIVE APPEALS CHAMBER

Before            Upper Tribunal Judge S J Pacey

Decision:        The decision of the First-tier tribunal held on 3 March 2009 is set aside for error of law.  The appeal is remitted for rehearing before a differently constituted First-tier tribunal (Social Entitlement Chamber). 

REASONS

1.         This is an appeal by the claimant, brought by my permission, against the decision of the appeal tribunal held on 3 March 2009.  The appeal is supported on behalf of the Secretary of State. 

2.         The claimant had been in receipt of incapacity credits and she completed a fresh IB50 form on 31 July 2008.  In that form she referred to a number of functional restrictions set out in the Schedule to the Social Security (Incapacity for Work) (General) Regulations 1995.  Specifically, the claimant referred to functional limitations in relation to sitting, rising from sitting, bending and kneeling, standing, walking and using stairs.  Had the claimant’s own assessment of her restrictions been accepted she would have scored well in excess of the minimum 15 points needed in relation to descriptors specified in Part I of the Schedule, see regulation 25(1)(a) of the Incapacity for Work (General) Regulations.

3.         A different view of the claimant’s functional restrictions was, however, taken by a medical adviser following interview with, observations and examination of the claimant on 1 October 2008.  The views of the medical adviser were adopted by the decision maker who awarded 7 points for descriptor 4(e), relating to standing ability.  The claimant had indicated that she could not walk more than a few steps without stopping or severe discomfort.  If accepted that would have qualified for an award of 15 points under descriptor 1(b).  The decision maker, however, decided that the claimant could not walk more than 400 metres without stopping or severe discomfort, descriptor 1(e), carrying an award of 3 points.  In awarding 10 points for physical descriptors the decision maker decided that the claimant did not satisfy the personal capability assessment.  The claimant had, I remind myself, indicated a mental health condition and the medical adviser carried out the mental health assessment.  No issue was taken in relation to mental health descriptors in the proceedings before the tribunal or in subsequent proceedings before the upper tribunal.

4.         The claimant attended the hearing before the tribunal, accompanied by her representative.  The record of proceedings makes it clear that no issue was taken in relation to the 7 points awarded for the standing descriptor.  The only activity in issue was that in relation to walking.  That is apparent not only from the claimant’s letter of appeal to the tribunal but also from the record of proceedings and the tribunal’s statement.  The claimant, through her representative, continued to argue for an award of 15 points under descriptor 1(b).  The tribunal confirmed the award of 7 points for the standing descriptor and awarded 7 points for 1(d) – “cannot walk more than 200 metres without stopping or severe discomfort”.   

5.         The grounds of appeal, set out by the claimant’s representative, are that the tribunal erred in failing to take into account what the claimant could accomplish with reasonable regularity, failed to address the evidence of the claimant about her walking restriction and failed to explain their reasons for their decision.  It is additionally contended that the tribunal erred in failing to correctly interpret the regulations in that they did not consider how far the claimant could walk before experiencing severe discomfort, but considered instead how far she could walk before any such discomfort compelled her to stop. 

6.         The appeal is supported on behalf of the Secretary of State, from whose decision there is no dissent on behalf of the claimant.  It is submitted on behalf of the Secretary of State that the tribunal erred in failing to provide reasons for their conclusion that the claimant could “manage 200 metres before experiencing severe discomfort”.  The tribunal, I accept, gave no reasons to indicate how they arrived at that distance neither did they explain their evaluation of the evidence from the claimant that she could walk a much shorter distance, but only with severe discomfort. 

7.         In my judgment the tribunal erred for the reasons set out in the immediately preceding paragraph and on that basis I set aside their decision.  I do not, however, find that the tribunal erred in failing to consider the issue of reasonable regularity.  Notwithstanding that they made no express reference to this there is nothing to indicate that the tribunal focussed upon isolated or otherwise unrepresentative items of the evidence of the claimant and they had regard to the report from the medical adviser who was, in turn, enjoined not to base his views on a “snapshot”.  Similarly, I am not persuaded that the tribunal, as is suggested  on behalf of the claimant, failed to consider whether any walking she accomplished would be attended by severe discomfort, as opposed to if and when such discomfort compelled her to stop.  There is nothing in the tribunal’s statement to give support to the view that the tribunal misdirected themselves in considering only the point at which any severe discomfort would compel the claimant to stop.

8.         The above matters are sufficient to dispose of the appeal and, as matters of fact and evidence are in issue, the case must be reheard before a differently constituted First-tier tribunal.  My having set aside the decision of this tribunal is not an indication of the claimant’s prospects of success on the substantive appeal.  The claimant is encouraged to attend the next hearing as, indeed, she did the last one.

9.         There is one other matter which I ought to address, however.  In the grounds of appeal the claimant’s representative referred to CDLA/2195/08 [2008] UKUT 36 (AAC) and R(M)2/92.  The former, as is clear from the citation, concerned disability living allowance, the latter concerned the predecessor of the mobility component, mobility allowance.  It was suggested on behalf of the claimant that in asking whether she could walk to (identified) local shops the tribunal effectively imposed the sort of test cautioned against in paragraph 10 – 13 of CDLA/2195/2008.  The scenario in that case, however, was materially different in that the tribunal there attempted to assess the reliability of the evidence of the claimant by checking his estimate of time against their own.  For the reasons identified by the Commissioner (as he then was) in that case that amounted to an error of law.  In the instant appeal, however, the claimant and her representative must clearly have been aware of her evidence about her ability or otherwise to walk to the local shops.  The record of proceedings demonstrates that the shops were identified and might reasonably be known to the tribunal and the claimant.  The tribunal would have been entitled to draw appropriate inferences from the representative walking ability of the claimant having regard to what she regularly accomplished although, as I have said above, that would not have absolved the tribunal from providing adequate reasons.

10.       Both of the cases referred to by the claimant’s representative concerned disability living allowance criteria, and their predecessor.  Regulation 12 of Social Security (Disability Living Allowance) Regulations 1991 specifies factors that have to be addressed in considering whether a person is virtually unable to walk for the purposes of section 73(1)(a) of the Social Security Contributions & Benefits Act 1992.  The statutory framework in relation to the personal capability assessment is, however, materially different: there is no counterpart of regulation 12.  I remind myself that in CSIB/60/96 the Commissioner (as he then was) made it clear (paragraph 19) that there were considerable differences between regulation 12(1) of the DLA Regulations and the Incapacity for Work Regulations.  He went on to say that “I accept the adjudication officer’s submission that Commissioners’ decisions relating to the definition of the circumstances in which the conditions of entitlement for disability living allowance mobility component are satisfied have no direct bearing per se on the question as to whether the all work test is satisfied.  I am not satisfied given the different context of the phrase in respect of the different regulations for different benefits that it is safe to rely in respect of incapacity credits on definitions which had been formulated for mobility allowance and disability living allowance”.  (See also paragraph 18 of that decision).  I have no hesitation in agreeing with those views and in my judgment CSIB/60/96 remains good law.  As the Secretary of State’s representative rightly says there are dangers inherent in trying to impose the conditions of entitlement to one benefit on another.

11.       I note that both the district tribunal judge, in granting permission to appeal, and the claimant’s representative have commented upon medical reports obtained in connection with one benefit (for example incapacity benefit) being used as evidence in another (for example disability living allowance).  That may happen although the fact that the relevant legislative provisions are materially different does not prevent either party to an appeal from relying upon evidence produced in connection with another benefit.  The essential questions are whether that evidence is relevant and material.  A successful claim or otherwise to one benefit is not determinative in relation to another but, depending upon the quality of that evidence and the weight to be attached to it, it may be persuasive for or against a claimant.  For example a claimant may wish to cite, as evidence in his or her favour, an incapacity benefit medical report in which the medical adviser indicated relevant functional restrictions or walking difficulties.  In such a case the medical report would be evidence before the tribunal, to be evaluated in the context of the totality of the evidence.  What the tribunal, to my mind, would be interested in in such a case would be the views of the medical adviser and the evidence (for example clinical findings and/or the claimant’s account of his or her routine daily activities) which led to the formation of those views.  The same might hold equally good for a decision maker in deciding a claim to disability living allowance by having regard to an incapacity benefit medical report.  In short there is no prohibition on the statutory adjudicating authorities having regard to evidence obtained in connection with one benefit when considering a claim to or an appeal in respect of another benefit.  Such evidence must, however, always be viewed in the context of the evidence as a whole and must be used with particular caution, bearing in mind that the legislative framework will inevitably be different. 

                                                                        (Signed)

                                                                                                            S J Pacey

                                                                                                            Upper Tribunal Judge

                                                                        (Date)                         15 October 2009