IN THE UPPER TRIBUNAL Case No CDLA/361/2010

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Decision: The appeal is allowed. The decision of the First-tier Tribunal sitting at Harlow on 15 September 2009 under reference 133/09/00351 involved the making of an error of law and is set aside. The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 21 of the Reasons.

 

REASONS FOR DECISION

 

1. The Secretary of State’s representative has expressed the view that the decision of the tribunal involved the making of an error on a point of law and has agreed to a rehearing. The claimant, by making this appeal, has done the same. That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail. I need only deal with the reasons why I am setting aside the tribunal’s decision.

 

2. I have set the tribunal’s decision aside because:

 

(a) I consider that the statement of reasons for the tribunal’s decision, insofar as it relates to the higher rate of the mobility component, fails to comply with the legal duty to give adequate reasons; and

(b) the tribunal failed to make sufficient findings of fact in relation to the claimant’s walking ability.

 

3. The tribunal found “there is no physical condition or disablement that would result in the claimant being virtually unable to walk.” Apparently as a fall back, they decided that he was not in any event “virtually unable to walk”.

 

4. The first of these findings must be taken to have been an allusion to the words of regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991, which provides:

 

“(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) of the Act (unable or virtually unable to walk) only in the following circumstances–

(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to place of, or nature of, employment–

(i) he is unable to walk; or

(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk; or

(iii) the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health;”

5. The effect of these words was addressed by a Tribunal of Commissioners in R(DLA)4/06, where they said:

 

“(1) In our judgment the effect of the decision of the Court of Appeal in Harrison is that pain, dizziness or other symptoms are not a feature of the claimant’s “physical condition as a whole” within the meaning of regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 unless they have a physical cause. Difficulty in walking which results from pain, dizziness or other symptoms affecting physical functions which are found to have an entirely mental or psychological cause cannot therefore qualify a claimant for the higher rate of the mobility component of DLA. Decisions of Commissioners to contrary effect, such as those in CSDLA/265/97, CDLA/948/2000 and CDLA/3323/2003, should not be followed (paragraphs 86 to 101 above).

(2) Although this must be a matter for decision by each tribunal on the basis of the evidence before it, on the evidence before us (particularly that of Dr Ford: see paragraphs 145 and 162 above) it may be that tribunals have in the past been too ready to conclude that the fact that no specific identifiable cause for lower back pain and dizziness has been found, despite extensive investigation, means that there is no physical cause (paragraphs 146 and 166 above).

 

(3) In cases where a claimant’s inability or virtual inability to walk is caused by both physical and mental factors, the claimant is entitled to the higher rate of the mobility component if the physical disorder is a material cause – ie if its contribution to the inability or virtual inability to more than minimal (paragraph 116 above). The physical cause must be one which is still current at the date of the decision-maker’s decision (paragraph 119), but it does not matter at what point in the chain of causation it comes (paragraph 120 above).”

 

6. The tribunal had before it a report from Professor Findley, a Consultant Neurologist and Clinical Director- Fatigue Service with the relevant University Hospitals NHS Trust, addressed to the claimant’s GP. Professor Findley wrote:

 

“This is a most fascinating problem in a man, who is now quite disabled with symptoms. I would classify this as a complex, chronic fatigue state. The precipitating and maintaining factors, are cumulative and persistent multi-factorial stressors on a vulnerable personality.

 

The situation has been compounded by intrusive irritable bowel syndrome, oesophageal reflux syndrome and ongoing anxiety disorder with some mild features of OCD.

 

Irrespective of a precise diagnosis, he is quite clearly unable and incapable of working.

 

Recommendations

 

I do not think he is manageable on an outpatient basis... I therefore recommend admission into [the relevant Chronic Fatigue Unit]. I would recommend an initial assessment for six weeks as a minimum. It is likely that he will need a more prolonged rehabilitation.

 

I pointed out to [the claimant] that fatigue states are a heterogeneous group of disorders.

 

His lifestyle is incompatible with any recovery. The lifestyle he has adopted has been a secondary response to his fatigue state… [T]his is not a case for community services. He is one that would be recognised in the recent NICE Guidelines (2007) as complex and severe, which requires tertiary hospital input and may require admission…”

 

7. The NICE guidelines are entitled “Chronic fatigue syndrome/myalgic encephalomyelitis (or encephalopathy): diagnosis and management of CFS/ME in adults and children”. They do contain a definition of “severe CFS/ME”, though not, so far as I can see, a definition of “complex” CFS/ME, as opposed to recommendations for its treatment.

 

8. Professor Findley’s final comment was that:

 

“This man is not a malingerer. He is frightened of what has happened to him. It is clear that he is a vulnerable individual with an anxiety disorder and mild features of OCD, which extend back over time. He has a perfectionist personality. He suffered with cumulative and serious stresses (to him), relating to work, family events, family illness, and personal conviction of serious disease. His health has deteriorated slowly and more suddenly following extensive gastrointestinal investigations for symptoms which he was sure were due to cancer.

 

He continues to react badly to stress, which exacerbates all his symptoms. His lifestyle is incompatible with recovery. I strongly recommend admission.”

 

9. After a preliminary reference to the dates of claim and decision, the tribunal’s statement of reasons stated:

 

“The Tribunal considered what physical or mental health diagnosis [the claimant] has…[T]here is no clear diagnosis of Chronic Fatigue Syndrome, rather [the claimant] exhibits a chronic fatigue state , has irritable bowel syndrome, oesophageal reflux syndrome and an anxiety disorder with mild features of obsessive compulsive disorder…The Tribunal found that none of the other medical reports confirmed a diagnosis of Chronic Fatigue Syndrome or diagnosed any other conditions save for mild depression. It is on this medical basis the Tribunal considered this appeal. Further, the Tribunal noted that when Professor Findley examined [the claimant] he noted there was no muscle tenderness, his general examination was unremarkable and his gait and balance were normal. His cranial nerves were intact. He found no abnormalities in his limbs, his reflexes were intact and the plantars were flexor and he was within the non-depressed range…”

 

10. The tribunal explained why it refused the higher rate of mobility component in the following terms:

 

“1. The evidence from Professor Findley is that there is no clear diagnosis of Chronic Fatigue Syndrome, as detailed above, and that the only other physical conditions or disablement [the claimant] has are oesophageal reflux syndrome and irritable bowel syndrome. There was no medical diagnosis, condition or explanation as to why [the claimant] might have any difficulty with limb function. Based on this evidence the Tribunal found there is no physical condition or disablement that would result in [the claimant] being virtually unable to walk…

2. [The Tribunal accepted the evidence of a consultant neurologist who had indicated that neurological examination was unremarkable and an MRI brain scan normal.]

3. The Tribunal accepted the evidence of [the claimant] at the hearing when he stated that today was an average day in terms of his manner and speed of walking. He accepted that he had walked the total length of the corridor to the Tribunal room in the same way he walked into the Tribunal room. Based on this evidence the Tribunal found he was not virtually unable to walk.”

 

11. As the extract quoted from R(DLA) 4/06 reminds us, the tribunal needed to consider (a) what symptoms it was that made walking difficult for the claimant and (b) whether the cause of those symptoms was a physical one, to a material extent.

 

12. One can readily understand the tribunal’s view that none of the claimant’s conditions other than that related to chronic fatigue would affect his walking capability.

 

13. One can also readily understand their view that Professor Findley’s report provided “no clear diagnosis of Chronic Fatigue Syndrome”: the tribunal evidently took the view that the reference to a “chronic fatigue state” was made advisedly and was clearly entitled to do so. Against that, Professor Findley’s evidence also included a reference to the NICE Guidelines, which are concerned not with a chronic fatigue state, but with “Chronic fatigue syndrome/myalgic encephalomyelitis (or encephalopathy)”. To say, as the tribunal did, that there was “no clear diagnosis” of CFS was in my view thus an entirely accurate summary of the evidence before them. (I am ignoring the further evidence provided to me, as it was not before the tribunal and is not relevant to determining whether the tribunal erred in law.)

 

14. I can accept that the tribunal was saying that the claimant had failed to establish that his walking limitations were due to his physical condition as a whole, but I am considerably less clear as to how they got there. Why did the existence or otherwise of a diagnosis of CFS matter? The legislation does not require the existence of a diagnosed condition: see R(DLA)3/06. Nor, though the implication of the tribunal’s reasoning seems to be that if there had been such a diagnosis, it might have made a difference, can one readily understand why, without more, that should be so. As this is a supported appeal, I have not seen fit to require expert evidence on the point, but my understanding of the diagnosis of CFS is (in layman’s terms) that it is based on the presence of a number of symptoms from a range, for particular lengths of time, when other possible explanations for those symptoms have been excluded. If it was the tribunal’s view that the existence of a diagnosis would provide evidence of a physical cause for the symptoms which Professor Findley appears to accept the claimant is experiencing, then in my view it needed to explain that and what adverse inference it drew in this case from the fact that there was no clear diagnosis and why.

 

15. In the absence of an adequately reasoned explanation, one is left with the suspicion that the tribunal might have either considered that a diagnosed condition was required in law or may have failed to ask itself the questions required by R(DLA) 4/06 through an undue preoccupation with the diagnosis issue.

 

16. This in turn links to the other error of law which I consider that the tribunal made, which was that it failed to make sufficient findings as to the claimant’s ability to walk without severe discomfort, including as to time, manner, speed and distance. The tribunal’s approach seemed to be that the main point was based on the lack of a physical cause, but as a fallback that he was not virtually unable to walk in any event. The lack of findings thus undermined the fall-back position.

 

17. A preferable approach might have been to make those findings at the outset, for if the claimant was not virtually unable to walk in any event, then questions, difficult in the context of chronic fatigue and with a claimant with an anxiety disorder and vulnerable personality, as to whether or not there was a physical cause for such limitations as there were, might have been avoided.

 

18. I did raise when giving directions on giving permission to appeal whether the claimant was necessarily bound to fail on the “virtually unable to walk” point in any event, in view of the evidence at page 17 of the bundle, which showed relatively severe limitations on two “bad” days, but on average days an ability to walk, albeit slowly, distances that are greater than those usually to be found in decisions finding a person to be virtually unable to walk and on good days the ability to walk, still slowly, as much as 750 metres. However, at pages 18 and 19 the claimant does mention the effect on him of covering such distances. In the light of that, the Secretary of State takes the view that it is possible that the distances covered may only have been accomplished at the expense of severe discomfort. Accordingly he does not invite me to conclude that the claimant would have been bound to fail on that aspect and thus that anything that might otherwise have constituted an error of law would not have been material; instead, he submits, and I accept, that further findings are necessary as to how much of the claimant’s walking can be accomplished without severe discomfort.

 

19. I do not need to deal with any other error on a point of law that the tribunal may have made. Any that were made will be subsumed by the rehearing.

 

20. Finally, I should mention that the tribunal’s statement of reasons fails to comply with the Senior President of Tribunal’s Practice Statement “Form of Decisions and Neutral Citation – First-tier Tribunal and Upper Tribunal on or after 3 November 2008.” This requires decisions (including for this purposes statements of reasons) to use paragraph numbering. Failure to do so is poor practice and may make the Upper Tribunal’s task harder, but does not of itself amount to an error of law.

 

21. I direct that 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. While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh. The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against (6 December 2008) – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

 

22. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

 

 

 

 

CG Ward

Judge of the Upper Tribunal

6 July 2010