THE UPPER TRIBUNAL

 

ADMINISTRATIVE APPEALS CHAMBER

 

DECISION OF THE UPPER TRIBUNAL JUDGE

 

The appeal is refused. I find no error of law in the decision of the appeal tribunal (the tribunal) sitting on 20 August 2009 in Liverpool. The tribunal’s decision therefore stands.

 

 

REASONS FOR DECISION

 

Background

 

1. On 16 January 1996, the claimant made a new claim for disability living allowance (DLA). The stated disability was lower back pain. A medical examination by an Examining Medical Practitioner (EMP) was carried out on 19 February 1996. The claimant told the EMP that he needed to stop at distances of forty yards on account of severe back pain up to a maximum of two hundred yards taking ten to twelve minutes. The EMP’s clinical findings relating to the lumbar spine were that flexion was limited and painful but straight leg raising was to 80º on each side and there was no neurological abnormality. The EMP was of the opinion that the claimant could walk about two hundred yards slowly taking ten to twelve minutes, stopping two or three times for twenty to thirty seconds to ease back pain but with a normal gait and satisfactory balance. With respect to care, it was EMPs opinion that help was required with socks and shoes, washing legs and feet and that the claimant would have difficulty using a cooker and coping with hot pans.

 

2. On 21 February 1996, a decision was notified to the claimant made by a decision maker (DM) on behalf of the Secretary of State that the claimant was not entitled to either component of DLA, at any rate. This led to a letter dated 5 March 1996 from the claimant in which he asked for review:

 

“ … regarding personal care, I need help with getting undressed i.e. taking my underwear, trousers, socks and shoes off from the thighs down also I need help to have my legs and feet washed and dried also help to be dressed from my feet back up to my thighs again, as I have low back pain, any leaning forward or bending causes severe pain in lower part of my back. Regarding mobility, I need help with getting around as I can only walk short distances of approx. 40 yds then I need to stop walking, as I get severe pain in lower part of my back”.

 

3. In express response to this application a DM on 18 March 1996 reviewed and revised the earlier adverse decision. The revised decision was that the claimant:

 

“ … is entitled to the care component of Disability Living Allowance at the lowest rate from and including 16.1.96 and mobility component of Disability Living Allowance at the higher rate from and including 16.1.96”.

 

 

 

4. No reasons were given except to set out the stated needs in the claim pack for help 4-5 days a week with washing, bathing, dressing, undressing and preparing a cooked main meal for himself; and then briefly why the DM on revision considered the claimant did not satisfy entitlement to the middle or highest rate of the care component of DLA.

 

5.               On 17 December 2008 a Medical Examiner (ME) examined the claimant for the purposes of Incapacity Benefit (IB). The claimant is recorded as having stated to the ME that he had no significant problems with dressing, usually shared the cooking with his wife, could move indoors from room to room on the level without difficulty, was able to walk two hundred metres at a normal pace around the supermarket every week and for a similar distance at a normal pace around the village most days. The ME’s clinical findings were very similar, albeit not identical, to that of the EMP over twelve years earlier and it was the opinion of the ME that the claimant “cannot walk for more than four hundred metres without stopping or severe discomfort”.

 

6.               Following a DM’s supersession decision on 12 February 2009 that the claimant is no longer entitled to either component of DLA from that date because his condition had improved so that there was a relevant change of circumstances, the claimant appealed to the tribunal. He has been represented throughout by Huyton Advice Centre Limited (the representative). The representative submitted medical evidence from the General Practitioner (GP), confirming the claimant’s chronic low back pain for many years which required a spinal fusion in 1994, and a written submission for the benefit of the tribunal. That submission pointed out that there had to be grounds to revise or supersede a decision. The representative accepted that if the claimant “ … did walk 200 metres at a normal pace and if he did cook a main meal for himself, then this would be evidence that his condition has improved. However, neither of these things are true.” (Original emphasis).

 

The tribunal’s decision

 

7.               The claimant attended the hearing with the representative and his wife. The Secretary of State was also represented. There was also an IB appeal on the same day. Some of the references are to evidence in the IB papers, which evidence is not available to me. There are six pages of oral evidence recorded. The tribunal disallowed the appeal. The tribunal’s statement of reasons for its decision, issued on 7 September 2009, included the following:

 

“3. The burden of proof is on the Secretary of State.

 

4.            The Tribunal agreed that there were grounds to supersede the decision awarding DLA but felt that it was more likely that the decision had been made in ignorance of or based on a mistake of fact as to the Appellant’s true walking and caring abilities. …

 

…

 

6. The Appellant also gave oral evidence. In this he said that he had not improved in any way since the award in 1996 and in fact he felt he was worse than before he had had the operation in 1994. The operation was a spinal fusion and he no longer sees the orthopaedic surgeon. He takes 2-4 co-codamol a day and has 100 tablets prescribed every three months. Only since

 

the decision under appeal has he been prescribed diclofenac: from 14/05/2009. He described is range of pain (from 1-10) as starting at 2-3 and can then increase throughout the day to reach 7-8. The condition is worse in winter, better in summer and better if he lies down.

 

7. He described himself as housebound and unable to drive for the last 12 months. He can now get a bus and the bus stop is 20 yards from his house. He goes by bus to Huyton village and then sits down while his wife goes into various shops. He is able to move from one seat to another in Huyton village and he is able to walk round ASDA because there is nowhere to sit down in ASDA.

 

8. The distance between the seats in Huyton is about 20 metres and it would take a minute to walk that distance. …

 

9. In relation to care needs the appellant told the tribunal that he was able to carry out all the tasks required to make a main meal. To obviate the need to handle heavy pans he would be able to remove the contents of the pans with a spoon. There was nothing at all wrong with his upper limbs. In relation to self-care he told the tribunal that he needed help 2 or 3 times a week with socks and shoes and with garments over his feet. The appellant’s wife told the tribunal that she dried his feet and attended to his lower garments and clothes.

 

10. The tribunal found as a fact that in relation to the mobility component the appellant was able to walk a distance in excess of 200 metres without any impairment of gait or balance, without using any walking aid, at slightly less than normal speed before having to stop or experiencing discomfort which was severe. On these findings he was not virtually unable to walk.

 

11. In relation to self care the tribunal found that the appellant was able to prepare a main meal for one - even though in practice he did not - and was able to manage all aspects of self care except on occasions he required help to put on lower garments and shoes and socks. The amount of time required to give this attention would be at most 15 minutes in a day and it was not needed every day. Even if this help was reasonably required for 15 minutes every day it was given primarily at the beginning of the day when the appellant got dressed. 15 minutes is not a significant portion of the day. On these findings he is not entitled to any care component of DLA.

 

12. The tribunal was unanimous in finding that on the day of the hearing the appellant did not qualify for DLA. The Appellant and his Representative were adamant that there had been no improvement since 1996. The tribunal could only conclude therefore that the decision to make the award in 1996 had been based on a mistake of fact or ignorance of fact.

 

…

 

 

 

 

14. From what the appellant told the tribunal about his care needs and ability to carry out all the tasks required to make a meal he has no problems with washing and bathing and can make a meal. Clearly, a mistake was made in 1996 in making the award.

 

15. It seems likely that the assessment of the EMP as to walking - page 54 - was based entirely on what the appellant had told the EMP on page 43: it takes 10-12 minutes to walk 200 yards. This would mean, taking into account the stops for 20-30 seconds 2 or 3 times - that the appellant was walking at a speed of 200 yards in ten minutes or 20 yards a minute.

 

16. The tribunal considered this to be inherently improbable. The appellant walked at almost normal speed into and out of the tribunal room. The operation carried out in 1994 was designed to relieve pain and the appellant’s current use of pain relief was very limited. He admitted to being prescribed 100 co-codamol tablets every three months. There are 91-92 days every three months: usage is just over one tablet a day which is not consistent with the intense pain the appellant described which stops him walking further than 20 yards at any one time and makes him walk at a speed of 20 yards a minute.

 

17. The tribunal noted that the appellant’s own estimate of the distance he can walk is variable. At page 65 he can only walk 40 yards and then has to stop walking. This was received on 07/03/1996 and prompted the decision at page 66.

…

 

20. The assessment of the ICB doctor in 2008 … was criticised because it was wrong to describe the pace of walking in a supermarket as “normal”, the appellant does not walk 200 metres in the village but only 20 metres at a go and then stops, and the times recorded for sitting (15 minutes) and standing (15 minutes) are more than the time taken for the whole examination.

 

21. The tribunal cannot explain the examining doctor’s time keeping. The appellant got out of his chair about 3 times in the hearing without requiring assistance from anyone else and resumed his chair shortly afterwards. The tribunal agrees that by its very nature walking in a supermarket will not be the same pace as walking in the street. The tribunal does not accept, however, the appellant’s account that the most he can manage is 20 metres at which point he must stop to recover.

 

22. If he walked at that speed all the time, and had done so since 1996, it is difficult to reconcile with the figures of 40 metres and 200 metres the appellant himself describes. His GP refers to chronic back pain but the pain relief prescribed is relatively modest. The appellant presents as someone who walks easily and without impairment and with no pain in his legs. He moved freely in the tribunal and walked at a speed only slightly shower than the norm.

 

 

 

 

23. The tribunal accepts that the appellant does not have unlimited walking. It is as found in paragraph 10 above. As there has been no change in the appellant’s condition the decision in 1996 must have been based on a mistake of fact or ignorance of the appellant’s true capabilities.”

 

Appeal to the Upper Tribunal

 

8. The representative’s original grounds of appeal were that the tribunal assessed the evidence incorrectly and that the tribunal failed to identify a material fact about which the DM in 1996 was mistaken or ignorant. Upper Tribunal Judge Pacey gave permission to appeal. The appeal is not supported on behalf of the Secretary of State. There have been voluminous and comprehensive submissions from both sides which is why the Upper Tribunal Judge was not persuaded that an oral hearing was needed to facilitate the proper determination of the appeal, a conclusion with which I agree. In the course of those submissions, the representative has added a further ground. This is that only once it is established that there are grounds for revision or supersession, may the question of entitlement be considered.

 

9. On behalf of the Secretary of State it is submitted, firstly, that the tribunal reached reasonable conclusions based on the evidence before it; secondly, that the tribunal sufficiently considered facts underpinning the original DLA award about which the Secretary of State must have been ignorant or mistaken; thirdly, that a tribunal may make determinations in whatever order it pleases, provided that these address a ground of revision or supersession which warrants an alteration of the existing award.

 

Discussion of the submissions

 

Weighing the evidence, applying the statutory tests and explaining conclusions: the role of the tribunal contrasted with that of the Upper Tribunal

 

10. The weight to be given to any evidence is completely a matter for the tribunal and is a matter of fact. It can be disturbed by an appellate judge as an error of law only if the conclusion as to weight is one which no reasonable tribunal could have reached or its reasons are inadequate. Having carefully considered all of the evidence in the papers, I am not of the view that the way that the tribunal assessed competing evidence is such as no reasonable tribunal could have so done and it sufficiently explained its process of reasoning. The test is adequacy of reasons, not perfection, and that can be judged only in the context of the evidence and submissions as a whole. Against that background, and that the tribunal is a body of summary jurisdiction not expected to give a textual analysis akin to that of the Court Appeal, I judge there was no erroneous approach in law in the tribunal’s evaluation of the evidence.

 

11. The claimant’s grounds relate to matters of fact and degree which are for the tribunal seeing and hearing the witnesses and reading the evidence to determine, and the conclusions reached were open to it as a reasonable tribunal on the evidence to which it referred. It is important to keep in mind that its membership includes both a person experienced in the needs of the disabled and a doctor. The only way error of law in exercising judgement on the application of a statutory test could arise is where (per Lord Fraser in G v G [1985] 2 All E.R.225 at page 229) the tribunal came to a conclusion that “exceeded the generous ambit

 

within which a reasonable disagreement is possible”. In no respect could the tribunal’s decision be regarded as perverse on that basis.

 

Primary or inferential underpinning fact as distinct from findings on the ultimate issues

 

12. Regulation 6 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (the regulations) is to the following effect, so far as relevant:

 

“(1) Subject to the following provisions of this regulation, for the purposes of section 10 [of the Social Security Act 1998], the cases and circumstances in which a decision may be superseded under that section are set out in paragraphs (2) to (4).

 

(2) A decision under section 10 may be made on the Secretary of State’s … own initiative or on an application made for the purpose on the basis that the decision to be superseded –

 

(a) is one in respect of which -

 

(i) there has been a relevant change of circumstances since the decision had effect …

 

(b) is a decision of the Secretary of State … and -

 

(i) the decision was erroneous in point of law, or it was made in ignorance of, or was based upon a mistake as to, some material fact …

 

(c) is a decision of an appeal tribunal or of a Commissioner -

 

(i) that was made in ignorance of, or was based upon a mistake as to, some material fact; …”

 

13. A relevant circumstance or a material fact has to be found from the evidence. Primary facts are those matters on which a tribunal has evidence, for example that a claimant is seen to walk very slowly. An inferential fact is what is deduced from a primary fact. For example, if a claimant is observed to walk very slowly, and there is the diagnosis of arthritis, it may be deduced that his speed of walking in on account of that condition. Either a primary or an inferential fact may be a circumstance or a material fact for the purposes of regulation 6. These are the underpinning, specific facts on which a decision is based.

 

14. However, a special kind of inferential fact is the application of the particular legal rule in issue to the facts otherwise found on the evidence. That is what Mr Commissioner Rice at paragraph 4 of R(S)4/86 categorised as “ … the ultimate issue, on the outcome of which an award is either made or refused …”. In the same paragraph, the Commissioner went on to quote paragraph 9 of R(I)3/75:

 

 

 

“… a claim for sickness benefit necessarily raises the question whether the claimant was incapable of work; and a claim for Widow’s Benefit may raise the question whether the widow was cohabitating with a man as his wife. In all such cases the duty of the determining authority is to consider the evidence and reach a conclusion.”

 

15. I accept the submission made on behalf of the Secretary of State that, for example, the ultimate issue in the standard case of entitlement to higher rate mobility component of DLA is whether the claimant “is suffering from physical disablement such that he is either unable to walk or virtually unable to do so” and that that is a matter on which a difference of opinion between two successive decision makers does not permit a revision or supersession. The application of the legal test, although a factual matter, is not a ‘material fact’ or a ‘circumstance’ for the purposes of regulation 6.

 

16. The tribunal’s clear findings, however, as to what the claimant could and could not do with respect to walking, cooking and self-care at the relevant comparative dates were not conclusions on the ultimate issues but only the foundation which the tribunal used to make its final decision on whether there were grounds to supersede and, if yes, were the conditions of entitlement still satisfied. The tribunal did not err in law; it concentrated on what were the perceived difficulties for the claimant in 1996 and what were his actual difficulties then, and on the same matters as at the relevant date of the decision under appeal. The tribunal did not rely on a changed view of how the same legal test applied to the same facts; it correctly considered the material underpinning facts.

 

Procedure on removal of an existing award

 

17. The Secretary of State has included a copy of CSDLA/637/2006 in the papers. As I said in that case at paragraph 21:

“A tribunal may look at all the evidence before it determines, firstly, whether a basis for supersession has been made out and, secondly, if yes, what is the result. I do not quite agree with Mr Commissioner May QC insofar as he seems to suggest in CSDLA/765/2004, … that the taking of evidence must be restricted initially to that applicable to a supersession ground and only thereafter, once such is established, moving on to consider material on the merits of current entitlement. It is sensible rather that a tribunal hears all the evidence, including what is potentially relevant to current entitlement but without yet making a final determination with respect to that, in order to compare present circumstances with those which surrounded the original award ...”

 

18. From the evidence pertaining to a claimant’s contemporaneous condition, a tribunal may be able to deduce facts relating to the original award which then assist its determination on the prior question of whether a ground for alteration has been made out. The Secretary of State puts it very well in the submission dated 17 June 2010:

 

“… [T]he relationship between the ground of supersession is a logical and not a chronological one. A tribunal merely has to arrive at a ground of supersession from which it logically follows that the claimant’s award falls to be altered. However, it is not bound to make findings as the ground of supersession before it considers the claimant’s entitlement … it may make its findings in whatever order it pleases, provided that what results from them is a chain of reasoning that tends logically to show that a ground of revision or supersession exists such as warrants the alteration of the existing award. Amongst other things, a tribunal is entitled to infer the existence of an appropriate ground of supersession if its findings as to the claimant’s circumstances and the extent to which he comes within the conditions of entitlement properly imply that either the existing award was never sustainable or a change has occurred since that award took effect. Whether such an inference is justified is a matter of fact and degree. It will not always be justified where a tribunal’s view of the claimant’s entitlement is at variance with that of the authority that made the existing award: neither will it never be justified by such a divergence. In any given case, the tribunal will have to determine, in the light of the particular circumstances before it, whether it has uncovered a mistake of fact on the part of the awarding authority, a change of circumstances, or a mere difference of opinion such as does not permit a revision or supersession.” (original emphasis)

 

19. The representative is correct that he who wishes to demonstrate that alteration of an award is appropriate, in this case the Secretary of State, must show a ground for such as a condition precedent. However, this is based on all the relevant evidence, which can relate to present as well as past circumstances. If an adjudicating body makes findings which are wholly incompatible with current entitlement, even given the margin of appreciation open to any decision maker on applying a test, then it is an entirely permissible deduction that there must have been either error of law or fact as the basis of the original award or a relevant change of circumstances since it was made. This then constitutes the necessary condition precedent allowing change even though it is inferred from later evidence about subsequent events.

 

20. This is so even if it is not possible to identify the exact ground under Regulation 6 nor the precise factual matrix on which the original decision was based. In the particular context it does not matter: the most probable deduction is that one at least of the necessary grounds applies. The rationale of R(S)4/86 is quite different: that case underscores that, insofar as mistake of fact is relied on, this can never be used for a changed view in applying the correct legal rule to the same underpinning findings. However, such a course of action was not adopted by the tribunal.

 

21. In CSDLA/637/2006 and CSDLA/822/2006, I was concerned with supersession of a tribunal’s award. A tribunal’s decision may not be superseded for error of law nor is revision ever possible. However, in issue in the present case, is revision or supersession of the DM’s decision where powers to alter the original award are much wider. As noted at paragraphs 12 and 13 of CSDLA/822/06:

 

“12. At paragraph 16 of CDLA/1820/1998, Mr Commissioner Jacobs said that review (now revision or supersession) may be carried out in the following circumstances:

 

“Where the factual basis of the adjudication officer’s award is not known, it is sufficient for the tribunal to make findings of fact which show that the claimant is not entitled to the award. These findings will show that there must have been either an error or fact or law made by the adjudication officer who made the award or a subsequent change of circumstances”.

 

13. However, the Commissioner’s remarks refer to alteration of a DM’s decision; as a DM’s decision may be superseded for any of the above alternatives, it can be sufficient to show that current non-entitlement is so clear that, on a balance of probabilities, it follows that at least one of the enumerated modes of supersession is justified and it does not matter too much which.”

 

22. The tribunal found that the claimant could walk in excess of two hundred metres without stopping and severe discomfort, could prepare a main meal for one and manage all aspects of self-care except on occasions for no more than fifteen minutes a day requiring help to put on lower garments and shoes and socks; the tribunal took into account the submission from the claimant and his representative that there had been no improvement since 1996; the only possible conclusion which could follow, other than mistake in law, was that the original DM in 1996 was in error about one or more of the underpinning facts based on which he or she had determined the ultimate issues when making the DLA award. Standing the tribunal’s findings on the claimant’s current capabilities, a conclusion that there was no basis to supersede would, given the kind of grounds on which a DM may supersede, have been perverse.

 

SUMMARY

 

23. For the above reasons, in my judgement no material error of law is demonstrated and therefore the tribunal’s decision stands. The tribunal did not apply any wrong legal tests. It made adequate findings of fact, having regard to the totality of the evidence before it and, standing the nature of that evidence, sufficiently explained why it made the decision it did. Given its findings, which were justified by the evidence, the conclusion of the tribunal was inevitable in suggesting that supersession was appropriate. The tribunal paid regard to all the relevant information in this case and took no account of irrelevant factors. In no respect was its decision perverse having regard to the evidence before it.

 

 

 

 

 

 

 

(Signed)

L T PARKER

Judge of the Upper Tribunal

Date: 18 August 2010