Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CDLA/2235/2009

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Nicholas Paines QC

Decision: The decision of the First-tier Tribunal is erroneous in law because the tribunal have not given an adequate statement of their reasons for reaching it. I am not in as good a position as a First-tier Tribunal to take the decision myself. I therefore set the decision aside and remit the case to a new First-tier Tribunal.

REASONS FOR DECISION

1.               The claimant is a woman born in 1950 who suffers from arthritis, lymphodoema and certain other conditions. In December 2007 she claimed the care and mobility components of a disability living allowance (DLA). In the claim form she referred to certain care needs and said that she could walk but had physical problems that restricted her walking; she could walk 5-10 metres or for 1-2 minutes, at a very slow pace, before feeling severe discomfort. She referred in this connection to her severe arthritis, lymphodoema and poor balance and said “any walking is extremely painful” (page 15).

2.               The DWP commissioned a report from the claimant’s GP. Under “ability to get around including pain, gait, balance, breathlessness and visual loss” he simply wrote “nil recorded” (page 52). The Department proceeded to commission a report from an examining medical practitioner (pages 66-93). This listed the relevant diagnoses as generalised arthritis/back pain and lymphodoema. The EMP reported the claimant as saying that her arthritis was painful all the time; prolonged standing, walking and using the stairs were painful. On physical examination he found her shoulder rotation painful and slightly reduced; lymphodoema affecting in particular her right calf; and her right knee, ankle and hip movements reduced and painful, with features of arthritis in both knees; her left knee and hip movements were slightly reduced and painful and her right ankle was swollen compared to the left, with reduced movements. He found her balance satisfactory and her gait slow but normal. He noted that she walked freely and unaided indoors.

3.               The EMP’s summary of the claimant’s physical ability was to the effect that movements of the knee, back and upper and lower limbs were painful and slightly reduced; he added “significant disability likely”. He reported constant pain in all the joints and that prolonged sitting, standing, walking far and climbing stairs increased the pain. In relation to mobility he repeated that the claimant’s gait was normal but slow and her balance satisfactory; her likely speed of walking was slow. In relation to “need to halt, reason for and duration of halts” he wrote “accept that she may have to stop while walking, after 200 metres, due to pain in the back [and] lower limbs”. Under “likely distance before onset of severe discomfort” he wrote “two hundred metres”. His evaluation of the claimant’s ability to walk was “impact on physical functioning is mild at present”. His prognosis was that “arthritis likely to deteriorate gradually over the years”, but at present he anticipated no significant change in mobility or care needs on variable days.

4.               In February 2008 a DWP decision-maker decided that the claimant was not entitled to DLA; she could walk up to 200 metres, slowly, in a normal manner and did not have relevant care or supervision needs. The claimant’s representative asked for disclosure of the evidence on which the decision was made; the decision was reconsidered by the DWP but not changed.

5.               In August 2008 the representative submitted a further letter from the claimant’s GP. This asked for the claimant’s mobility entitlement to be reconsidered, saying that she had severe mobility difficulties due to arthritis and was in constant pain even with medication. The letter said the claimant found mobility around her house very difficult and consequently found steps very difficult to handle. The claimant asked for a further reconsideration, saying she was virtually unable to walk and giving a further account of her difficulties. The DWP’s decision was reconsidered again but not changed.

6.               The claimant’s appeal came before the First-tier Tribunal in May 2009. The claimant gave evidence that she only went out by car or on her electric scooter. She went shopping once a week to Asda; she went round slowly, resting on a trolley. She disagreed with the EMP’s walking estimate of 200 metres; her back and ankles were already causing pain when she had walked from the tribunal waiting room into the hearing room (a distance that she estimated at 5 to 8 metres but which was established to be 20 metres).

7.               The tribunal dismissed the appeal. In relation to the care component, they noted that the only need for assistance claimed by the claimant in oral evidence was in getting out of bed in the mornings, the duration of which would not amount to a significant portion of the day. The claimant’s representative has not quarrelled with that. In relation to the mobility component they agreed with the EMP that the claimant could walk without severe discomfort for 200 metres at a slow speed but with normal gait and satisfactory balance. They preferred his evidence to that in the GP’s second letter, which had not explained the extent of any limitation.

8.               The claimant appealed, with the assistance of her representative, on the ground that the tribunal had not given adequate reasons for preferring the evidence of the EMP to that of the claimant and her GP. Permission to appeal was granted by Judge Mesher, not on the grounds put forward in the application for permission but on the grounds that the tribunal had arguably failed to take into account aspects of the EMP report that pointed in favour of the claimant being virtually unable to walk and which raised the suspicion that he had (wrongly as a matter of law) equated the onset of severe discomfort with the necessity to stop walking.

9.               The Secretary of State does not support the appeal. His submission reviews the findings of the EMP that the claimant’s disability was “significant” and her pain constant and increased by walking, but nevertheless that, in relation to walking, its impact on physical functioning was mild; he concludes that the EMP’s overall assessment was careful and thorough and that he had explicitly expressed – twice – the conclusion that the claimant could walk 200 metres before the onset of severe discomfort. The Secretary of State submits that the tribunal could not rely on the evidence of the GP, which was unspecific, or of the claimant, who was confused about distances.

10.           In response, the claimant’s representative submits that the tribunal’s reasoning left it unclear whether the tribunal did or did not take into account the GP’s evidence of severe mobility problems and, if they did not, why. The EMP’s report was self-contradictory and the tribunal did not address this. The representative disputed that the EMP had twice said that the onset of severe discomfort would be at 200 metres: he had first said that the claimant would have to stop after 200 metres due to pain. Referring to Social Security Commissioners’ decisions on the relationship between pain and discomfort, she submitted that the tribunal needed to explain when they thought severe discomfort set in.

11.           I agree with Judge Mesher that the tribunal gave adequate reasons for not relying on the evidence of the GP. His unspecific reference to mobility difficulties did not enable any conclusion to be drawn as to the extent of the claimant’s ability to walk; the tribunal summed this up by saying that “the extent of any limitation was not explained” in his letter.

12.           I do not agree with the claimant’s representative that the EMP report was self-contradictory so as to undermine reliance on it or to require the tribunal to explain why they nevertheless relied on it. It seems to me to have been prepared with considerable care and to contain a balanced assessment of the claimant’s condition. His assessment that she had ‘significant’ disability and constant pain was not inconsistent with her being able to make a degree of progress on foot without the “severe discomfort” that is part of the statutory test. His assessment that the pain was increased by ‘walking far’ suggested that in his view it did indeed place a limitation on her ability to make progress on foot without severe discomfort, but his statement that the impact of the pain was ‘mild at present’ is consistent with his believing that the degree of limitation was not great. On the specific question of the distance that the claimant could walk he gave 200 metres first as the possible distance after which she would have to stop due to pain and, secondly, as the likely distance she could walk before the onset of severe discomfort.

13.           On the other hand, I do not agree with the Secretary of State that the tribunal was unable to place any reliance on the claimant’s evidence. The fact that she wrongly estimated the length of the corridor in the hearing centre is irrelevant once it had been established that the distance was 20 metres; the tribunal could have taken her evidence about the effect on her of walking along the corridor as evidence of the effect of walking 20 metres, just as it noted her evidence of walking around a supermarket leaning on a shopping trolley.

14.           It is not for me to decide whether in my view the evidence should or should not have led to a finding that the claimant was virtually unable to walk in the terms of the definition in regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991. But I have to decide whether the tribunal correctly applied the law and gave adequate reasons for their decision.

15.           A statement of reasons is adequate if it tells the parties why they won or lost in sufficient detail to enable the reader to see whether the tribunal applied the law correctly. The law required the tribunal to decide whether the claimant was virtually unable to walk having regard to various aspects, set out in regulation 12, of her ability to ‘make progress on foot without severe discomfort’. Paragraph 10 of the statement of reasons contains a finding that she could do so for 200 metres slowly but with normal gait and satisfactory balance. That finding would justify a conclusion that she was not virtually unable to walk. The tribunal gave a reason for that finding, which is that it corresponded to the opinion of the EMP, with which they agreed.

16.           However, in my judgment the statement of reasons in this case was not adequate for two reasons. First, it did not tell the claimant why her evidence, and in particular her explicit disagreement with the EMP’s assessment of her walking ability, was rejected. The tribunal were not, of course, obliged to accept her evidence, but they needed to explain their reasons for rejecting it.

17.           Secondly, in order to be adequate, a statement of reasons must not only explain why the tribunal reached a particular conclusion; it must show whether in reaching it they applied the law correctly. If (as here) the stated reason is acceptance of a medical opinion which is couched in language reflecting the statutory test, a tribunal will need to be alert to anything which suggests that the medical practitioner may have misinterpreted or misapplied the statutory test. Otherwise the tribunal risks adopting his error of law so that it vitiates their own reasoning.

18.           As Judge Mesher pointed out in granting permission to appeal, the EMP’s two answers to the questions on page 79, about need to halt and distance before onset of severe discomfort, suggest that the EMP’s report might suffer from the error of (in Judge Mesher’s words, on which I cannot improve) “operating on the principle that discomfort cannot be severe until it causes a person to stop walking, which is not the test under the legislation”.

19.           It is certainly, as Judge Parker observed in R(DLA) 4/03, an error of law to equate the onset of severe discomfort with the point at which a claimant stops walking. That is for the obvious reason that a claimant may, in order to have a degree of normality of life, choose to walk at the cost of severe discomfort. On the other hand, claimants (like other people) will often prefer to avoid experiencing severe discomfort, so that the fact that a claimant regularly walks a certain distance may suggest that he does so without severe discomfort. The fact that the claimant regularly walked around the supermarket might suggest, but did not conclusively establish, that she did not suffer severe discomfort while doing so.

20.           The EMP’s observation here was not an observation about a distance that the claimant actually walked, it was his estimate both of the distance after which she might experience a degree of pain such that she would have to stop and of the distance after which she would experience severe discomfort. The inference that he equated the onset of severe discomfort with having to stop walking is strong.

21.           This raises the much-discussed issue of the relationship between pain and severe discomfort. As far as concerns the application of the statutory test, I cannot improve on the discussion in R(DLA) 4/03. It is particularly important to bear in mind, first, that pain, discomfort and severity are everyday concepts and that the phrase ‘severe discomfort’ is not used in the Regulations in any technical legal sense.

22.           As a matter of everyday language it is fair to say that pain is a form of discomfort (though not the only form; for example, breathlessness or nausea might be described as forms of discomfort). But not all pain amounts to severe discomfort. From this follows a second important point, which is that to seek to equate particular degrees of pain with degrees of discomfort falling above or below the level of ‘severe’ (as the claimant’s representative’s submissions to me tend to do) is to take a false path.

23.           The relevance of that point to the present case is that the EMP’s two answers on page 79 suggest that he regarded 200 metres as marking, first, the possible onset of unbearable pain (’may have to stop … due to pain) and, secondly, the likely onset of severe discomfort. The first answer does not show conclusively that he was employing a concept of unbearable pain; he was answering a question about ‘need to halt’ and was venturing a tentative answer that the need might arise after 200 metres due to pain. He may have been saying no more than that it would be reasonable to expect the claimant to want to stop after that distance because her discomfort due to pain would otherwise become severe. But one cannot be sure.

24.           Given the possibility that the EMP might have applied the wrong test, the tribunal’s acceptance of his second answer on page 79 does not enable the reader to know whether the tribunal’s own conclusion was vitiated by that error. In these circumstances, a statement that the tribunal accepted his evidence was not an adequate statement of their reasons because it does not enable the reader to know whether their conclusion was vitiated by that error or not.

25.           In these circumstances, in order to be adequate, the tribunal’s statement of reasons needed to do more than to record their agreement with the EMP’s second answer. More reasons needed to be given for the tribunal’s conclusion. They were of course entitled to take into account the EMP’s expressions of opinion and to give weight to them, but needed to consider his expressions of opinion, and the other evidence, as a whole.

26.           I hope I do not under-estimate the difficulty of a tribunal’s task in cases of this sort. Gauging the extent of another person’s pain is not easy; in performing this difficult task tribunals are well advised to bear in mind the guidance given by Judge Jacobs in CDLA/902/04. Telling a claimant who has constant pain that the tribunal consider her able to walk without severe discomfort can no doubt appear callous. But the legislation undoubtedly imposes upon tribunals the task of deciding whether, taking into the account the criteria in regulation 12, a claimant is virtually unable to walk.

27.           This difficult decision is plainly best taken by a tribunal that has the opportunity of hearing from the claimant and contains members with medical and disability expertise. I am not in a position to take the decision myself (and nothing I have said should be taken as hinting at any view of mine). I therefore set the decision aside and remit the case to the First-tier Tribunal.

Nicholas Paines QC

8 March 2010