Upper Tribunal (Administrative Appeals Chamber)

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[2009] UKUT 45 (AAC) (09 March 2009)
Main Category: DLA, AA, MA: general

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the Stockport appeal tribunal (held on 18 June 2008 under reference 944/08/00873) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to a differently constituted First-tier Tribunal (Social Entitlement Chamber).

DIRECTIONS:

The tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

In particular, the tribunal must investigate and decide the claimant's entitlement to a disability living allowance on her claim that was treated as made on 29 May 2007. In doing so, the tribunal must not take account of circumstances that were not obtaining during the period from the date of claim to the original date of the decision under appeal (11 August 2007): see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

It is possible that the claimant has now made a 'renewal' claim. It is also possible that it has been decided. If there is an appeal against a decision on the 'renewal' claim, it would be sensible for it to be heard at the time of the rehearing of this case. The claimant's representative will be able to advise the tribunal.

Reasons for Decision

When I gave the claimant permission to appeal in this case, I identified three ways in which the tribunal may have gone wrong in law in assessing the evidence. The parties are agreed that the tribunal did go wrong in those respects. However, they disagree on whether the tribunal nonetheless came to the correct decision on the evidence before it. I deal first with the tribunal's handling of the evidence and then with disposal.

A. The history of the claim

The claim submitted her claim for a disability living allowance on 4 July 2007 and it was treated as made on 29 May 2007. After obtaining a factual report from the claimant's GP, the decision-maker refused the claim. The claimant's representative then obtained the evidence that I set out below and the claimant was interviewed and examined by an examining medical practitioner. Having received that report, the decision-maker revised the decision to award the care component at the lowest rate (cooked main meal test) for two years from the date of claim. From the reasons given to explain the decision, it is clear that the decision-maker relied on that report. The claimant exercised her right of appeal, but the tribunal confirmed the Secretary of State's decision. I gave her permission to appeal.

B. The written evidence before the tribunal

The tribunal had written evidence and the claimant's oral evidence at the hearing. I will concentrate on the former.

The claim pack

The claimant completed a claim pack, in which she attributed her difficulties to pain in her neck, back and arm. Other evidence showed that they are related to an accident at work when she was jumped on from above. She wrote that she had good and bad days, but needed some help on all days. On mobility, she wrote that she could walk for 250 metres in 10 minutes before experiencing severe discomfort. On care, she wrote that she had difficulties with cooking and self-care during the day, but that she had no difficulties once she was in bed.

The GP's report

This was obtained on the standard form. It confirmed that the claimant had a neck injury and reported that an x-ray taken before the accident showed a loss of normal cervical lordosis due to muscle spasm, but with disc spaces preserved. On care, the doctor wrote that the claimant was able to self-care, although she experienced pain, for example, in dressing. On mobility, the doctor wrote that she experienced limitation on some movements due to neck pain, but could get around unaided.

The representative's questionnaire

The claimant's representative obtained a report from a physiotherapist and a Consultant surgeon. He supplied each with identical forms that asked specific questions about aspects of mobility and self-care. I set it out below, omitting the spaces for answers.

'Could you please indicate what [the claimant's] diagnosed conditions are and what medication/treatments are prescribed?

Can you examine her and refer to her medical notes in order to answer the following question please? In your professional opinion-

How far could [the claimant] walk before the onset of severe discomfort (this includes tiredness and breathlessness as well as chest pain, leg and back pain etc.)?

(a) 10-25 yards (b) 25-50 yards (c) 50-75 yards (d) more than 75 yards

How would you assess her speed of walking? (a) very slow (b) slow (c) average

Does the claimant have any problems with her manner of walking i.e. her gait?

Does he experience considerable difficulties in performing the following bodily functions?

	Yes	No
Getting in and out of bed
Getting to the toilet
Using the toilet
Getting in and out of the bath
Washing and bathing
Getting dressed and undressed
Moving around indoors
Going upstairs and downstairs
Coping with toilet needs at night
Prepare a cooked main meal (on a traditional cooker) for herself (peel/chop vegetables, use kitchen tools and cope with hot pans)

Please can you give your reasons for ticking the above boxes and add any further information on her 'disabilities' you think the decision maker should have.'

The physiotherapist's report

The physiotherapist diagnosed traumatic injury to the cervical and upper thoracic spine with referred pain to the upper limbs and possible discogenic involvement. He estimated her walking distance at 25-50 yards at a slow speed but with no problems of gait. He thought she would have difficulties with getting to and using the toilet, moving around indoors, and coping with toilet needs at night. By way of additional information, he said that although she was able to manage some of the activities of daily living, she needed help due to pain in her neck and upper limbs.

The Consultant's report

The Consultant diagnosed cervical spondylosis with degenerative disc disease at multiple levels but with no neurological deficit and right tennis elbow. He added that she had been referred for pain management. He estimated her walking distance at 10-25 yards due to pain in the neck, at a speed he described as slow and cautious, and with pain in her neck, but with no problems of gait. He thought she would have difficulties using the toilet, washing and bathing, moving around indoors, and cooking a meal. By all the other entries in the list, he wrote: 'sometimes'. By way of additional information, he wrote that pain in her neck was limiting her activities of daily living and that she sometimes required her husband's assistance.

The examining medical practitioner's report

Having received the medical evidence from the claimant's representative, the Secretary of State commissioned a report from an examining medical practitioner. The doctor identified a neck and right arm problem and occasional leg pain as the main disabling conditions. The assessment of function was that the claimant's right upper limb was substantially impaired, but otherwise her limb function was full. The doctor estimated that the claimant would not experience severe discomfort before 500 metres, but referred back to this comment:

'The evidence suggests significant neck injury with neurological involvement affecting right arm and its function. There is no pathology present which would significantly affect mobility or cause dizziness to any significant degree.'

The doctor also gave the opinion that the claimant could not safely cut up food, peel/chop vegetables, cope with hot pans and use a traditional cooker, as well as occasionally needing help with certain other tasks.

C. The tribunal's reasoning on the written evidence

The tribunal's chairman recorded some trenchant observations on the written evidence. They need to be read as a whole in order to appreciate their full flavour. I will content myself with a selective summary:

• The reports of the physiotherapist and the Consultant were irreconcilably different in many respects.

• The claimant's representative could not pick and chose bits of different reports without very good reason. As the decision-maker had relied on the examining medical practitioner's report to make the award, the representative could not rely on other evidence without putting that award at risk.

• The representative had wrongly set out the cooked meal test in the questionnaire.

• The tribunal interpreted slow speed of walking as meaning half normal speed and then extrapolated from this that she could only walk between 15 and 30 seconds without severe discomfort.

• Neck pain was implausible as an explanation for this, unless it arose from a postural problem rather than a physical disablement.

D. What was wrong with that analysis

The assessment of evidence is essentially a matter for the tribunal. However, that is subject to the qualification that the analysis must be rational. There are a number of problems with the tribunal's analysis. In combination, and sometimes individually, they show that the tribunal did not direct itself properly on the need to analyse evidence rationally and as a whole.

Pick and mix

It is permissible for a tribunal to rely on a particular witness's evidence in part only. It must, as the tribunal said, have a reason for doing so. For example: it might, given their respective expertise, be appropriate to accept a Consultant's diagnosis, but to prefer a physiotherapist's assessment of practical function.

Having directed itself correctly on this issue, the tribunal then failed to act accordingly. In response to the representative's argument that the other medical evidence was preferable to the examining medical practitioner's on the issue of mobility, it decided that 'If we were to reject the [examining medical practitioner's] report, we would have also to remove the award made by the decision under appeal, which was a decision revised on the basis of [that doctor's] report.' That was not correct. The tribunal did not have to accept or reject the report as a whole. Moreover, it was perhaps mistaken to interpret that report as against the claimant. The doctor's comment on mobility suggests that the distance of 500 metres before severe discomfort may have been based on a misunderstanding that it was necessary for the pathology to have a direct effect on mobility.

Wrongly describing the cooked main meal test

The tribunal took apart the representative's question on this test with the precision of a judge of the Upper Tribunal analysing a tribunal's decision. That was inappropriate. What the representative did was to set out a question to be answered. He was not writing a textbook on the scope of the test. The tribunal was entitled to take account of the question in assessing the answer. But it had to do that consistently. The examining medical practitioner's report contained a question about the use of a traditional cooker, but the tribunal did not mention that. What the representative has done is to consolidate the questions on cooking asked by examining medical practitioners into a single question. That ensures that the evidence from the Secretary of State and the claimant are at least in response to the same questions.

Medical questionnaires cannot in practice be worded in the precise terms of the legislation and case law. They are addressed to professionals in terms that they can understand and answer. The tribunal has to analyse those answers, in context of the questions and the evidence as a whole, and apply the statutory tests to that analysis. As part of that analysis, the tribunal will have to consider whether, in the circumstances of the case, there may be relevant information that was not caught by the way a particular question was worded. If there may be, it will have to consider whether, and if so, how that evidence could reasonably be obtained. If there is a hearing, one obvious possibility is to question the claimant. If the case is being decided on the papers, the tribunal will have to consider whether an adjournment is appropriate in the circumstances of the case and whether it is realistic to expect more specific evidence to be forthcoming. The possibility of drawing inferences from the available evidence will be a relevant factor to take into account. If the claimant is represented, the tribunal is entitled to expect that the representative will have obtained whatever evidence the claimant wishes to be obtained and put before the tribunal.

Slow speed and irreconcilable differences

The tribunal was wrong to attribute a precise meaning to the word 'slow' as used by the physiotherapist and the Consultant and then to draw specific timings from that. To begin with, the representative did not define the term and the physiotherapist and the Consultant did not say what they understood it to mean. It was, accordingly, impossible for the tribunal to know whether they had a specific time in mind and, if so, what that time was. It is not possible to subject evidence to a greater degree of analysis than it can properly bear. The tribunal had to accept the word as it stood as an ordinary word of the English language. As such, it does not have the precise meaning that the tribunal attributed to it.

The Secretary of State's representative has set out the advice given by the Secretary of State's medical advisers have given as a guide:

'Brisk pace 90 metres per minute
Normal pace 61-90 metres per minute
Slow pace 40-60 metres per minute
Very slow pace 40 metres per minute'

It may be possible to interpret evidence given by those advisers with that in mind. It may be also be possible to use it to interpret the evidence of examining medical practitioners, provided it is clear that they have been given it and are applying it. However, it would not be permissible to apply it to other evidence.

The medical advisers' advice is, though, useful in one sense. It identifies speed by reference to a range of distances covered in a given time. That is surely the natural sense of 'slow'. It shows that the tribunal was wrong to take a specific speed of walking.

This is not all. There is a more fundamental problem with the tribunal's approach to this evidence. Speed of walking, like distance and the onset of severe discomfort, are not matters that are susceptible to precise estimates or fact-finding. Tribunals focus too much on precise distances and times and pay too close attention to these factors in evidence. For example, the physiotherapist and the Consultant differed in their estimates of how far the claimant could walk. This may have been one of the irreconcilable differences to which the tribunal referred. But making allowance for the difficulties involved suggests a different analysis, that the professionals were agreed that she had a significant limitation on her ability to walk, such that she could manage only a relatively short distance slowly, but were unable to be precise about the exact distance.

Tribunals should accept the reality that it is not possible for any professional to estimate with precision how far or how fast a claimant can walk. Claimants often have difficulty, as many of us do, in judging time and distance. It is possible for these matters to be measured, but this is rarely done and, when it is, it will be affected by a variety of factors, such as the natural variation in the claimant's condition, the physical conditions under which the test was conducted, the claimant's medication at the time, and so on.

The proper approach for a tribunal is to apply the statutory test in regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991 – is the claimant virtually unable to walk? In applying that test, it has to take account of such of the factors listed there – time, speed, manner and distance of walking - as are relevant to the case. In addition, it has to consider any other factor that affects how the claimant makes progress on foot out of doors. The legislation is drafted in broad concepts, not in terms of precise distances and times. [In this respect it is different from incapacity benefit and employment and support allowance, both of which require greater precision.]

In order to apply that test, the tribunal has to make findings of fact on the relevant factors. That involves analysing the evidence as a whole to the extent that it can properly be subjected to analysis. The findings of fact can be made with no greater precision than the law requires and the evidence allows. If that means that the findings cannot be expressed in terms of metres per minute or any other precise terms, so be it. All that is necessary is that the findings should be sufficient to support the tribunal's decision whether or not the claimant is virtually unable to walk. It is my view that the findings may have to be expressed more generally than is the current practice of the First-tier Tribunal and that the Upper Tribunal should accept that this is all that is attainable, given the nature of the test and the evidence available to the tribunal. This is not an excuse for poor quality analysis and fact-finding. It is, in fact, more demanding, because it does not allow tribunals to rely on illusory precision to find differences of opinion where they do not exist on a more rigorous analysis of the substance of the evidence.

The written evidence may raise as many questions as it answers. Take an example from the evidence in this case. The physiotherapist and the Consultant identified different aspect of care with which the claimant would have difficulties, but the Consultant wrote that she would have difficulties with the others 'sometimes'. Did the physiotherapist include or exclude difficulties that arose only sometimes? It is possible that this factor may account for some or all of the apparent difference between the reports. Similarly, the difference in the estimated distances that the claimant can walk were both expressed as ranges. It is possible that the physiotherapist had in mind the lower part of the 25-50 yards range, while the Consultant had in mind the upper part of the 10-25 yards range. If so, there was little difference in their views. Of course, other interpretations are possible. My point is that the evidence raises questions. The issue is: how should the tribunal deal with them? As before, the tribunal will have to consider whether, and if so, how that evidence could reasonably be obtained.

Posture and physical disablement

The tribunal contemplated the possibility of a postural problem as causing the claimant's alleged difficulties with mobility, but said that that was not a physical disablement. I do not understand why a postural problem caused by a neck pain is not a physical disablement for the purposes of disability living allowance. If back pain caused a claimant to adopt an unnatural posture that in turn affected gait and mobility, that would surely be as much a physical disablement as if the problem were caused directly by an arthritic knee. The tribunal was wrong to direct itself that this possibility was irrelevant.

E. Disposal

I come now to disposal. It is arguable that the tribunal may have come to the correct decision on the basis of its analysis of the claimant's oral evidence. There are arguments for and against. On balance, I have decided to direct a rehearing, rather than re-make the tribunal's decision, for these reasons. First, the tribunal wrongly excluded from consideration the possibility that the claimant's mobility was affected by a postural problem consequent on neck pain. Second, the tribunal had to assess the evidence as a whole, but its analysis of the written evidence suggests to me that it did not take that properly into account. Just as an example, both the physiotherapist and the Consultant estimated the claimant's walking distances as significantly less than her own, indicating that they were their own opinions rather than reports of what the claimant had told them. Given the claimant's difficulty in judging distance, that is relevant and may be significant. Third, the tribunal's assessment of the claimant's oral evidence affected its decision and it was clearly influenced by the way she gave it. The chairman has provided a detailed account, but these matters are best judged face to face. I prefer not to rely on a written account of these matters.

Signed on original
on 9 March 2009

Edward Jacobs
Upper Tribunal Judge