Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CDLA/2260/2009

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision: The appeal is allowed. I set aside the decision of the tribunal and remit the case for determination by a new tribunal in accordance with the directions given below.

REASONS FOR DECISION

1. In this case, the tribunal found that the claimant, who was unrepresented at the tribunal, did not qualify for any award of either component of DLA. In relation to walking out of doors, it found that before the onset of severe discomfort he could walk 50 metres or so, for most of the time. His speed of walking was found to be slow, about 40 to 50 metres a minute. The length of time for which he could walk was found to be about two minutes. I note that walking for that time would produce a distance of 80 to 100 metres, not 40 to 50 metres. He would walk with a slight limp, with a steady balance but slouching as he walked. He did not need the support of another person to help him. He would not fall or stumble.

2. The statement of reasons indicates at paragraph 11 that the tribunal fully accepted what was said about the claimant in terms of his disability. His evidence, as recorded in the statement of reasons was that his back was too painful to enable him to leave his flat one or two days a week. The rest of the time he could usually walk to the local shop, which was about 50 metres away, before the onset of severe discomfort. From time to time he was in pain from the outset when walking. On a really good day, which was not often, he thought he could probably walk further. His physiotherapist had described his mobility as good.

3. On this evidence the tribunal concluded that the claimant was not virtually unable to walk.

4. Had that been the only evidence, the decision would have been unimpeachable. However, the tribunal appears to have found the claimant to be a credible witness. The record of the proceedings indicates that he told the tribunal that the pain in his back “gets severe worse as day goes on”. Further, the written submissions on his behalf at p.70 of the file state that if he has done any walking at all, this causes increased pain in his back for the rest of the day and will prevent any further walking at all.

5. There are no findings as to these matters, and no apparent investigation with the claimant of the question whether he can walk out of doors again on a day when he has walked to the shop and back. In considering whether a person can walk a particular distance most of the time, and whether he is virtually unable to walk, it is necessary to consider not only whether he can manage it once at some point during the day, but whether he can manage it throughout the day or only some part of it, and with what frequency he can repeat the walk. A person who can only walk for two minutes a total of 5 or 6 mornings a week, and then cannot repeat the walk at any time during the rest of the day can hardly be said to be able to walk 50 metres most of the time, and may well be considered to be virtually unable to walk.

6. In my judgment the tribunal was in error of law in failing to deal with these questions. Its decision must be set aside, and the case reheard by a new tribunal. Although this decision relates only to higher rate mobility, the claimant will be able to pursue the whole of his claim before the new tribunal.

(signed) Michael Mark

Judge of the Upper Tribunal

16 April 2010