Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/3194/2009

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  I set aside the decision of the First-tier Tribunal dated 9 November 2009 and remit the case to a differently constituted panel of the First-tier Tribunal.  I draw the parties’ attention to paragraphs 21 and 22 of the reasons below.

REASONS FOR DECISION

1. This is a case that shows how important it is to ensure that case-management directions are carefully, and accurately, drafted.

2. In a claim effective from 9 March 2009, the claimant claimed disability living allowance under sections 72 and 73 of the Social Security Contributions and Benefits Act 1992.  On her claim form, in answer to the question how far she could normally walk (including any short stops) before she felt severe discomfort, she had simply said that she was in constant pain.  She had a crumbling knee cap.  She also said that she suffered from depression and agoraphobia and panic attacks and that she tended not to venture out alone.  A telephone call on 17 March 2009 elicited the evidence that she could walk only 20 to 30 metres in pain, did not currently have specialists for either her physical or mental health problems but was awaiting counselling for depression and a hospital referral for her knee.  A medical report was obtained from her general practitioner.  It gave diagnoses of osteoarthritis in the knee, severe depression and obesity and said that the claimant was tearful and anxious and “limps due to knee pain”.

3. On 15 April 2009, she was awarded the middle rate of the care component under section 72 of the 1992 Act from 9 March 2009 to 8 March 2010 but was refused the mobility component.  The reasons given were that she could walk over 50 metres slowly in an adequate manner and that she did not need guidance or supervision when walking outside on unfamiliar routes.  She appealed to the First-tier Tribunal, seeking the higher rate of the mobility component on the basis that she was virtually unable to walk (see section 73(1)(a) of the 1992 Act).  The Secretary of State declined to revise the award.  The claimant did not seek a hearing. 

4. However, on 31 July 2009, the First-tier Tribunal, sitting in Birkenhead, adjourned and issued a decision notice in the following terms –

“The appeal is adjourned in accordance with the following directions:

1. The Tribunals Service are to obtain a copy of the IB 85 report from the Department of Work and Pensions.

2 The appellant is warned that the tribunal can increase or reduce benefit.

3 The appellant is invited to an oral hearing, if there is no response within 14 days.  Relist as a paper once the IB 85 is received.

The adjournment is ordered because a decision could not be made today without further evidence.”

5. Obviously, the third of those directions was mistyped.  The record of proceedings had been written in terms of directions to the clerk, the last being –

“3. Invite to an oral hearing.  If no response within 14 days, relist as a paper once the IB 85 is received.”

A “paper” was presumably intended to be a “paper hearing”, as opposed to an oral hearing.

6. The decision notice was issued to the parties on 31 July 2009.  The Department duly submitted a Form ESA 85 (the successor of Form IB 85), which related to an examination on 22 June 2009 in respect of a claim made by the claimant for National Insurance “incapacity credits” and it made a submission to the effect that the new evidence supported its refusal of the mobility component and cast doubt on the award of the care component.  The submission and the form were sent to the claimant on 12 August 2009.

7. There was no response from the claimant.  On 9 November 2009, the First-tier Tribunal decided that the claimant was not entitled to disability living allowance with effect form 9 March 2009.

8. Two days later, the claimant submitted a new claim.  Following a medical examination on 11 January 2010, she has now been awarded the higher rate of the mobility component and the highest rate of the care component from 11 November 2009.

9. The claimant now appeals against the decision of the First-tier Tribunal, with my permission and the support of the Secretary of State.

10. I am satisfied that the procedure adopted following the hearing on 31 July 2009 was unfair.  The First-tier Tribunal plainly intended that that the claimant should be invited to attend an oral hearing and should be given 14 days in which to reply.  However, that is not what the decision notice actually said and I have some doubt that the claimant would anyway have understood what “relist as a paper” was supposed to mean.  In my view, the effect of the decision notice was to suggest that there would be a hearing without the claimant having to take any positive action.  It was also unsatisfactory that the claimant was asked to decide whether or not to attend a hearing before, or on the day that, she received a copy of the Form ESA 85, which she is unlikely to have seen until sent it either in these proceedings or with the documents in her appeal against the “incapacity credits” decision. 

11. I therefore allow the claimant’s appeal and set aside the decision of the First-tier Tribunal dated 9 November 2009.

12. The Secretary of State invites me to remit this case to a differently constituted panel of the First-tier Tribunal.  The claimant has not replied.  This appeal is now concerned only with the period from 9 March 2009 to 10 November 2009 and I have given some thought to whether I should substitute my own decision instead of remitting the case.  However, the decision of 9 November 2009 was well-reasoned and I would not have overturned it but for the procedural unfairness and that procedural unfairness means that the decision should not be upheld without the claimant having a better opportunity of having a hearing near to where she lives.  There is some further evidence before me which, although it dates from 2010, may be relevant insofar as it may throw some light on the claimant’s condition on and before 15 April 2009, but it is not conclusive in the claimant’s favour.  On balance, I consider that it would not be appropriate for me to substitute my own decision.  However, I will draw attention to various matters which it might be helpful for the First-tier Tribunal and the parties to bear in mind.

13. Firstly, there may no longer be any practical purpose in considering the care component.  The Secretary of State originally awarded the middle rate of the care component and the claimant has not in these proceedings sought the highest rate of the care component, to which I doubt she would have been entitled at the relevant time.  It is true that, in a supplementary submission to the First-tier Tribunal, the Secretary of State submitted that the Form ESA 85 cast doubt on the award of the care component.  However, the care component was presumably paid until at least July 2009 and probably until the end of the period now in issue and I imagine that that payment could not be regarded as recoverable, even if it were now to be decided that the claimant was not entitled to it.

14. Moreover, one of the reasons that the claimant scored so badly on her claim for “incapacity credits” was that it was found that she had full function in her upper limbs, which is not in dispute.  It is noteworthy that the grounds for the claim to the middle rate of the care component appear to have been firstly the claimant’s need for encouragement and prompting arising out of her depression, described by her general practitioner as severe and as having warranted not only medication but also a referral for psychiatry, and secondly her need for assistance when she fell, as she was liable to do because of the problems she had with her knee.  (In his report of 30 July 2010, the claimant’s general practitioner said that she had been prone to falls and joint instability for two years.)  It was her problems with her knee that she said also prevented her from cooking.  While I accept that the examining doctor, who also examined the claimant in January 2010 in connection with her new claim for disability living allowance, clearly did not regard the claimant’s depression to be severe at the time of either examination, it is not altogether obvious that the Secretary of State’s original award of the middle rate of the care component was wrong.

15. In relation to the mobility component, it is noteworthy that the Secretary of State’s refusal of the higher rate was based on a finding that the claimant could walk “over 50 metres slowly in an adequate manner” for which it seems to me no explicit reasons have been given.  The only estimate before the Secretary of State at that time was the claimant’s own estimate of 20 to 30 metres, provided over the telephone.  In the Form ESA 85, which was dated 22 June 2009, the doctor found that the claimant could not walk “more than 200 hundred metres on level ground without stopping or severe discomfort”.  The reason for estimating that distance, rather than 100 metres or 50 metres is not explained.  It is quite plain that the doctor accepted that the claimant’s knee was very painful and that “[o]verall, the client is likely to have significant disability affecting sitting, standing and walking”.  It is possible that the implied finding in Form ESA 85, which is partly completed by computer, that the claimant could walk in excess of 100 metres was due to her apparently having said that she was “[a]ble to walk for 5 minutes at a slow pace most days” but that seems inconsistent with everything else she has ever said.

16. In January 2010, the same doctor estimated that the claimant could walk slowly for one minute, covering 30 metres, before the onset of severe discomfort and it was doubtless that assessment that led to the current award, which implies an acceptance that the claimant was virtually unable to walk from no later than 11 August 2009, since there can be no entitlement to the mobility component until the claimant has been sufficiently disabled for at least three months (see section 73(9)(a) of the 1992 Act).

17. In the reasons for the decision of 9 November 2009, the First-tier Tribunal referred to the fact that the claimant had been working as a part-time care assistant until August 2008 and expressed the view that, not only was it unlikely that the claimant would have satisfied the basic conditions for either rate of the mobility component at that date, but also that it was unlikely that her health would have deteriorated so quickly that she would have satisfied those conditions by 15 April 2009, when the Secretary of State made his decision.  It was recorded on Form ESA 85 that the main reason for her leaving employment was depression but the 2010 assessment records her as saying that her physical problems also played a part.  It is the claimant’s case that her condition had deteriorated by early 2009.  For her to be entitled from the date of claim, she would have had to be sufficiently seriously disabled from 9 December 2008.  In this case, the position is complicated by the claimant’s depression, which contributed to her reluctance to go out alone.

18. The question that the First-tier Tribunal will now have to consider is whether the claimant was virtually unable to walk on 15 April 2009, the date of the Secretary of State’s decision on the original claim, and, if so, from what date she became virtually unable to walk, since entitlement can begin only from the later of the date of the claim (see section 76(1) of the 1992 Act) or the date three months after she first became virtually unable to walk. 

19. Conventionally, a person is regarded as virtually unable to walk if unable to walk 50 metres without severe discomfort, which no doubt accounts for the terms of the Secretary of State’s decision.  However, the assessment of an exact distance that a person can walk is unrealistic and the legislation requires consideration to be given to the speed of walking, the length of time for which a person can walk and the manner of walking as well as the distance (see regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890)).  In this case, it seems that any walking involved a degree of discomfort (although not necessarily severe discomfort) and it seems unlikely that a brief stop would have done much to enable the claimant to walk much further.  However, whether the claimant was virtually unable to walk from as early as 9 December 2008 or even by 15 April 2009, will be for the First-tier Tribunal to decide.  The First-tier Tribunal is not, in these proceedings, entitled to have regard to any worsening of the claimant’s condition after 15 April 2009 (see section 12(8)(b) of the Social Security Act 1998).

20. If the First-tier Tribunal finds that the claimant was not virtually unable to walk from 9 December 2008, it will be necessary for it to consider whether she qualified for the lower rate of the mobility component (see section 73(1)(d) and (11)(b) of the 1992 Act).  Initially, the Secretary of State simply said that the claimant did not need help because of panic attacks and that she did not need guidance or supervision when walking outside on unfamiliar routes.  However, there is clear uncontradicted evidence that the claimant did not in fact generally go out by herself and had given up part-time work on account of her depression.  Agoraphobia was mentioned in her claim form and, although not mentioned in her general practitioner’s report of 1 April 2009, was mentioned in his report of 30 July 2010.  In his supplementary submission following receipt of Form ESA 85, the Secretary of State noted that the last panic attack had been six months earlier and argued that the risk to the claimant did not require guidance or supervision.  However, it may be arguable that an absence of panic attacks for a lengthy period was due to the reassurance the claimant gained from being accompanied and, even though the need for such reassurance could not itself have been a ground of entitlement to the lower rate of the mobility component, it seems to me that the need for supervision must be judged by reference to the risk there would have been if there had been no supervision.  Moreover, there is now the general practitioner’s corroborative evidence as to the instability of the claimant’s knee and the risk of her falling, which might be an additional reason for supervision not, apparently, previously considered by the Secretary of State.  Again, these are matters for consideration by the First-tier Tribunal, who will again need to have regard to the likely speed of deterioration in the claimant’s condition since she gave up work, because, even though she gave up work due her disabilities, the nature of her work suggests that it is unlikely that she generally required supervision or guidance when walking outdoors in unfamiliar areas while she was actually working.

21. It will assist the First-tier Tribunal if the claimant attends an oral hearing so that she can explain how disabled she was in early 2009.  I appreciate that she is not keen on going out, but the hearing should take place in Workington and she can arrange to be accompanied.  On the other hand, if, she is now content with the award of just the middle rate of the care component from 9 March 2009 to 10 November 2009, having been awarded both the higher rate of the mobility component and the highest rate of the care component from 11 November 2009 (which, as I have said, implies an acceptance that she was very severely disabled from 11 August 2009), she can simply write to the First-tier Tribunal to withdraw her appeal.

22. If the appeal is not withdrawn and the Secretary of State does not revise the decision under appeal, it will assist the First-tier Tribunal if the Secretary of State makes a further brief submission informing it whether payment of the middle rate of the care component had actually been stopped before the award of the higher rate and whether there might be any advantage to the Secretary of State in the First-tier Tribunal considering that component.

Mark Rowland

1 August 2011