Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CAF/3350/2008

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge A Lloyd-Davies

 

 

DECISION

 

 

My decision is that the decision of the tribunal held on 1 May 2008 involved the making of an error of law.  I set that decision aside.  I give the decision which the tribunal ought to have given, namely, (i) that the decision of the Secretary of State made on 27 July 2007 disallowing the claimant’s claim for War Pension Mobility Supplement (“WPMS”) was correct and (ii) that the claimant’s appeal against that decision should be disallowed. 

 

 

REASONS

 

1. The claimant, who was born in 1934, enlisted in the Royal Air Force on 9 January 1953.  He served as a fighter plotter.  This involved working underground under bright lights.  In November 1953 he was diagnosed as suffering from cyclitis in his right eye.  He was transferred to other duties, and then medically discharged in consequence of acute cyclitis of the right eye on 23 December 1954. This disability was accepted as attributable to service and the claimant was awarded a war pension in 1954 at 20%.  The assessment was increased to 30% in 1965 and further increased in October 1973 to 50%, when the diagnosis of the accepted disablement was changed to bilateral iridocyclitis with retinal cysts.  In May 2007 on a review the further condition of bilateral cataracts was accepted as attributable to service and the assessment was increased to 70% with effect from 1 December 2006: in the assessment the conditions of subluxation of the lens of the right eye and glaucoma in the left eye were taken into account.  A further review was undertaken on 31 March 2008, when the assessment was maintained at 70%.  The claimant appealed this assessment, and on 28 November 2008 a tribunal increased the assessment to 100% with effect from 7 December 2007. 

 

2. On 23 January 2007 the claimant requested a claim form to apply for WPMS (under Article 20 of the Service Pensions Order 2006).  The claimant returned the form on 25 June 2007. On the form he stated, in answer to questions in it,

 

“My sight is severely impaired to the extent I am now registered partially sighted.  I am unable to walk  anywhere safely without assistance.” (page 15 of the case papers)

 

“I rely on other people to help me get about safely.”  (page 15A)

 

“No physical difficulty in actual walking but I can’t see to walk safely.” (page 16)

 

 

“Because of severe visual impairment I cannot walk any distance safely without assistance.” (page 16)

 

In the form the claimant answered “No” to the question whether he wanted to have a medical examination.

 

3. The Secretary of State disallowed the claimant’s claim for WPMS on 27 July 2007.  In making that disallowance the Secretary of State took into account the report of a medical examination which the claimant had undergone in February 2007 (to be found at pages 6-11A) for the purposes of the assessment review which had resulted in the increased award of 70%.  The claimant challenged the disallowance of WPMS.  The Veterans Agency reviewed the disallowance but did not change the decision, on the grounds that although the claimant’s accepted conditions clearly impaired the claimant’s ability to find his way around, those conditions did not affect his physical locomotor ability.  The claimant appealed.  The grounds of his appeal (to be found at pages 25 to 29) essentially were that the Veterans Agency failed to take into account his severe visual disability which made any attempt by him to navigate outside his home a risk and danger to his health.  The tribunal (which the claimant attended) sat on 1 May 2008.  It reserved its decision, which was given on 31 May 2008.

 

4. Before I consider the terms of the tribunal’s decision it is first convenient if I set out Article 20 of the 2006 Order, so far as is material to the present case.  That Article, which is headed “Mobility Supplement” provides:

 

“20(1) Subject to the provisions of this article, a mobility supplement shall be awarded at the rate specified in paragraph 11 of Part IV of Schedule 1 to a member of the armed forces who is in receipt of retired pay or a pension in respect of –

 

(a)      disablement as a result of the amputation of both legs, at levels which are either through or above the ankle; or

 

(b)     disablement, where the degree of disablement is assessed at 40 per cent or more, due to any other injury which is, and is likely to remain for at least 6 months from the date on which the question of eligibility for a supplement under this article is considered by the Secretary of State (either at first instance or on review), wholly or mainly responsible for –

 

(i)                 rendering him unable to walk (including with any suitable prosthesis or artificial aid which he habitually wears or uses, or which he might reasonably be expected to wear or use),

 

(ii)               restricting his leg movements to such an extent that his ability to walk (with any such prosthesis or artificial aid) without severe discomfort is of little or not practical use to him,

 

(iii)             restricting by physical pain or breathlessness his ability to walk to such an extent that it is of little or no practical use to him, or

 

(iv)             rendering the exertion required to walk a danger to his life or a likely cause of serious deterioration in his health;

 

…

 

(d)   disablement as a result of his being both blind (with a loss of vision certified in accordance with article 42 as amounting to more than 80 per cent) and deaf (with a loss of hearing so certified as amounting to not less than 80 per cent) where by reason of the effects of those conditions in combination with each other he is unable, without the assistance of another person, to walk to any intended or required destination while out of doors.”

 

5. The tribunal allowed the claimant’s appeal.  The reasons for its decision, given on 31 May 2007, were as follows:-

 

“[The claimant] has two accepted eye conditions for which he had, at the date of decision, a 70% assessment.

 

We find that [the claimant’s] very limited eyesight leads to him having accidents if he goes out unaccompanied.  He has had accidents where he has tripped because he cannot see the kerb, stairs or an obstruction on the path.  He has nearly been run over by a car when crossing a road which he thought it was safe to cross.  We were told in evidence and accept that both his son and his partner are so concerned about his safety that they have told him he should never go out unaccompanied.  Their views are confirmed by the letter dated 10 October 2007 sent by the Consultant Ophthalmic Surgeon to the Veterans Agency.

 

[The claimant] was 72 at the date of decision.  He is a proud man who is reluctant to use aids and we do not consider it reasonable to say that there is an aid which he might reasonably be expected to use which would enable him to walk outside his house unaided. 

 

[The claimant] submitted that the stress which he suffers because of the near misses which he has experienced entitled him to qualify by satisfying the requirements of Article 20(1)(b)(iv) SPO.  We have concluded that he does not satisfy those requirements because although he finds it stressful to walk unaccompanied the mental exertion could not be said to be a danger to his life or a likely cause of serious deterioration to his health.

 

We have also considered whether the provisions for those who are blind in Article 20(1)(d) SPO must be interpreted as limiting any claim arising from blindness solely to this provision.  We note while this provision provides an automatic entitlement to someone who is both 80% blind and 80% deaf, the Article does not limit blindness claims only to those who are blind and deaf; we have therefore concluded that claims by the blind should not be limited to this provision alone.

 

We have carefully considered whether the provisions of Article 20(1)(b) SPO are limited to physical conditions, including normally, although not invariably, the ability of the applicant to use his or her legs.  We observe that the word physical is not used to qualify the sub-paragraph although in contrast it is used in Article 20(1)(b)(iii).

 

The SPVA representative submitted that it is the Agency’s policy to interpret the provisions of Article 20(1)(b) as impliedly meaning that the limitations must be physical.  While noting the submission, we do not consider that the Article should be interpreted in such a limited way.

 

We find that his limited sight renders him unable to walk safely and that he satisfies the requirement of Article 20(1)(b)(i) SPO.”

 

6. The Secretary of State applied for leave to appeal.  The chairman of the tribunal granted that leave.  The claimant requested an oral hearing of the appeal, which request I granted.  At the hearing the Secretary of State was represented by Mr Purchase of Counsel; the claimant attended, accompanied by a long-standing friend, and represented himself.  I am grateful to both Mr Purchase and the claimant for their submissions. 

 

7. On behalf of the Secretary of State Mr Purchase submitted:-

 

(a) The word “walk” in the phrase “unable to walk” had its ordinary meaning, namely to make progress on foot and the claimant was not unable to make progress on foot.

 

(b) The phrases “unable to walk” and “virtually unable to walk” had been construed in social security legislation as meaning an inability to make progress on foot.  I was referred to Lees v. Secretary of State for Social Services 1985 A.C. 930 (where it was held that the claimant, who was blind and suffered from hydrocephalus and who could not walk outdoors without an adult guide to help her, was not “unable to walk” or virtually unable to walk for the purposes of mobility allowance), to R(DLA) 6/99 (where the Court of Appeal held that claimants who suffered from porphyria and who could not walk about outside in daylight without severe blistering of the skin were not virtually unable to walk within regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991 and hence were not entitled to the higher rate of the mobility component of disability living allowance since the focus of that regulation was the ability to move on foot) and also to R(M)3/78 and R(M)1/82 (decisions of the Social Security Commissioners on the meaning of the words unable to walk or virtually unable to walk in the context of mobility allowance).  The wording of the 2006 Order should be construed in like manner to the wording of the social security legislation.

 

(c) The context showed that Article 20(1)(b)(i) referred only to a physical inability to walk. He pointed out that sub-paragraphs (ii) (iii) and (iv) all referred to physical constraints on the ability to make progress on foot.

 

 

(d) Article 20(1)(d), which made special provision for those who are both blind and deaf and who could not navigate out of doors without the assistance of another person,meant that persons such as the claimant who were only blind but who suffered from a similar inability to walk about outside without assistance from another person were not intended to come within the ambit of the provisions of Article 20(b).

 

8. The claimant made the following submissions:-

 

(a) References in the papers to his being able to walk up to a kilometre were based on the medical he underwent for the purposes of the 2007 review of his assessment for his eyesight.  He pointed out that that assessment was only concerned with his eyesight, that his walking ability was not examined and that it was wrong to use that assessment for the purposes of his claim to WPMS.  In any event that assessment was shown to be incorrect by the subsequent increase in his assessment to 100%.

 

(b) The history of his claims was inaccurately stated in paragraph 4 on page 66, the terms of which made it appear as if he was a serial claimant.

 

(c) Because of arthritis and claudication (which he conceded were not attributable to service) he could probably physically walk about 100 metres before having to take a rest.  His principal problem, however, was that walking outside by himself caused him depression, stress and anxiety, with the result that his blood pressure had increased and that he had had a heart attack:  he had had one very near miss with a car and if he was unaccompanied tripped over or bumped into things.  He could, however, walk about outside without stress if he was accompanied by his friend or his son.

 

(d) As regards Article 20(1)(b)(i), if the inability to walk was to be limited to physical causes it should have been so stated.  There was no reason to exclude mental causes.  Further, it was not right to use the cases decided on social security legislation to interpret the 2006 Order.  In any event the social security legislation made provision for the blind by virtue of the lower rate of the mobility component of disability living allowance.  There was no such provision in the 2006 Order.

 

(e) The tribunal had dismissed his arguments under Article 20(1)(b)(iv) in one line and had not explained how it come to its conclusion.

 

(f) He had not had the opportunity of examining the doctors whose reports had formed the basis of the veterans agency disallowance of his claim for WPMS.  This was contrary to the Human Rights Act 1998.

 

9. Mr Purchase in reply expressly disavowed any intention on the part of the Secretary of State to categorise the claimant as a serial claimant.  He referred to the claimant’s own statements in the original claim form for WPMS to the effect that the claimant had no physical difficulty in walking.  He repeated his submissions that Article 20(1)(b)(i) related only to a physical inability to make progress on foot.  As regards the tribunal’s findings in regard to Article 20(1)(b)(iv), he submitted that if these were in dispute the claimant should have brought a cross appeal, but that in any event the tribunal’s findings on the issue were sufficient

 

10. In my judgment Article 20(1)(b)(i) requires the disablement in question to be wholly or mainly responsible for rendering the claimant physically unable to walk.  I reach this conclusion on the plain language of the legislation.  First, as a matter of the normal use of language, “unable to walk” means unable to make progress on foot.  That this is the meaning of the phrase as used in Article 20(1(b)(i) is emphasised by the words “(including with any suitable prosthesis or artificial aid which he habitually wears or uses or which he might reasonably be expected to wear or use)”.  Secondly, each of sub-paragraphs (ii), (iii), and (iv) refer to matters which relate to physical restrictions on the ability to walk.  There is no reason from this context to extend sub-paragraph (i) to anything beyond physical inability to walk.  Thirdly, Article 20(1)(d) (relating to claimants who are both 80% blind and 80% deaf) makes specific provision for claimants who are unable, without the assistance of another person, to walk to any intended or  required destination while out of doors.  The claimant is not deaf.  To permit his blindness alone to enable him to qualify for WPMS under Article 20(1)(b)(i) would, in my judgment, be an impermissible circumvention of the specific requirements of Article 20(1)(d). 

 

11. I reach the above conclusion on the language of Article 20(1) itself and without praying in aid the social security authorities to which Mr Purchase referred me.  Those authorities, however, even though they relate to different legislation, provide powerful support on the mean of the words “unable to walk” and reinforce the conclusion that I have in any event  reached. 

12. It follows that the tribunal erred in law in finding that Article 20(1)(b)(i) was not limited to conditions which related to the ability of the claimant to use his or her legs.  I therefore set its decision aside.

 

13. The parties before me agreed that if I considered it appropriate I should substitute my own decision rather than remit this case to a new tribunal.  On the Article 20(1)(b)(i) issue the tribunal made no express findings of fact as to how far the claimant could walk.  I am satisfied from what the claimant told me that he can manage to walk, in the sense of making progress on foot, about 100 metres before he might need a rest on account of claudication and arthritis.  He could then continue.  I find that although it is unsafe for him to walk out of doors without being accompanied, it cannot be said, within Article 20(1)(b)(i), that his visual impairment is “wholly or mainly responsible” for rendering him unable to walk: the claimant is physically able to walk in the sense of making progress on foot (as the claimant himself conceded in his claim form). 

 

14. I now turn to the arguments on Article 20(1)(b)(iv). I do not accept Mr Purchase’s argument that it is not open to me to consider this issue on the grounds that the claimant has not made a cross-appeal.  Since I have set the decision of the tribunal below aside and since I am substituting my own decision, all matters are at large before me including the Article 20(1)(b)(iv) issue. 

 

15. In my judgment the tribunal’s findings on Article 20(1)(b)(iv), which the claimant described as a “one-liner” were not, in the light of the submissions recorded as having been made to the tribunal, wholly adequate.  The findings were:

 

“We are concluded that [the claimant] does not satisfy the requirements of Article 20(1)(b)(iv) because although he finds it stressful to walk unaccompanied the mental exertion could not be said to be a danger to his life or a likely cause of serious deterioration to his health.”

 

16. This amounts to little more than a statement of a conclusion.  However my finding to that effect does not assist the claimant.  In order for Article 20(1)(b)(iv) to apply it is necessary that the claimant shows that his severely impaired vision is “wholly or mainly responsible” for rendering the exertion required to walk a danger to his life or a likely cause of serious deterioration in his health.  The claimant conceded before me that, if he was unaccompanied, walking outside did not cause him stress.  There was no evidence before the tribunal or before me that the claimant’s severely impaired vision was wholly or mainly responsible for rendering the exertion (the physical effort) required to walk (to make progress on foot) a danger to the claimant’s life or a likely cause of serious deterioration in his health. The stress that the claimant suffered when walking outside only occurred when he was walking unaccompanied.  This stress had nothing to do with the exertion required to walk: as the claimant himself stated in evidence and in his claim form he was “physically able to walk”.  Accordingly I cannot accept the claimant’s claim that he is entitled to WPMS by virtue of Article 20(1)(b)(iv).

 

17. For these reasons I set the decision of the tribunal aside and substitute the decision set out above.  For the sake of completeness I should point out that the claimant’s reliance on human rights legislation (to the effect that he was not offered the opportunity of examining the doctors whose opinions had been relied on by the Veterans Agency) was misplaced: Article 6(3)(c) of the European Convention (relating to the right to examine witnesses) only applies in criminal proceedings.  In any event, the medical reports of which complaint was made do not essentially bear upon the conclusion I have reached.

 

 

 

 

(Signed)

 

A Lloyd-Davies Judge of the Upper Tribunal

 

(Date) 4 June 2009