Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CAF/550/2010

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: J.P. Powell

 

 

DECISION

 

The decision of the appeal tribunal sitting at London on 11 November 2009, is not erroneous in point of law. 

 

The appeal against that decision is dismissed.

 

 

REASONS

 

1. This is an appeal, with my permission, against the decision of the appeal tribunal sitting at London on 11 November 2009. 

 

2. For simplicity I shall call the appellant the “claimant”.  The respondent is the Secretary of State for Defence.  I shall call him the “Secretary of State”. I shall refer to the tribunal which sat on 11 November 2000, as the “appeal tribunal”.

 

3. The issue in this appeal is whether the claimant satisfies article 20(1)(b)(iv) of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 2006 (as amended) (“the 2006 Order”).  If he does he is entitled to a mobility supplement.  The Secretary of State made a decision rejecting a claim which the claimant had made to such supplement.  On 11 November 2009, the appeal tribunal dismissed his appeal against that decision.

 

4. The basic facts are as follows.  The claimant was born on 9 July 1935.  He served in the Royal Air Force for many years.  He is, and has for some time been, in receipt of a war pension.  The pension relates to the following disablements.

1. Chronic Suppurative Otitis Media right with mixed hearing loss

2. Bilateral otitis externa

The total assessment is 50%.  The conditions included as part and parcel of the accepted conditions are:

Positional vertigo is part and parcel of the chronic suppurative otitis media right with mixed hearing loss.

 

5. The claimant has been trying to obtain the mobility supplement for nearly 10 years.  He made unsuccessful applications in March 2001 and May 2005.  He appealed against the rejection of the latter claim but his appeal was dismissed by a Pensions Appeals Tribunal.  An application for permission to appeal to a Pensions Appeal Commissioner was refused by the tribunal and, on renewal, by a Commissioner.  In November 2008, he made a third attempt to obtain a mobility supplement.  He underwent a medical examination on 26 February 2009.  In March 2009, the Secretary of State rejected the claim.  His appeal against that rejection was, as indicated, unsuccessful.

 

6. Entitlement to the mobility supplement is governed by article 20 of the 2006 Order.  The present appeal relies on article 20(1)(b)(iv).  I shall set out the relevant provision and then turn to the evidence on which the claimant relies.

20.(1) Subject to the provisions of this Article a mobility supplement may be awarded at the rate specified in paragraph 11 of Part IV of Schedule 1 to a member of the armed forces who is in receipt of retired pay or a pension in respect of –

(a) ...

(b) disablement, where the degree of disablement is assessed at 40 per cent or more, due to any other injury which is, and is likely to remain for at least 6 months from the date on which the question of eligibility for a supplement under this article is considered by the Secretary of State (either at first instance or on review), wholly or mainly responsible for –

(i) ...

(iv) rendering the exertion required to walk a danger to his life or a likely cause of serious deterioration in his health;

It is convenient to set out, first, the claimant’s own evidence, together with a letter from his general practitioner on which he places reliance, and then the remaining medical evidence.

 

7. On 14 October 2008, the claimant wrote the letter which appears at page 8 of the case papers.  The relevant passages read as follows.

“Please bear with me for I find this latest development difficult to accurately describe.

 

In July of this year I was just in front of my house on the country road.  I had the usual warning of a vertigo attack as my head began to tighten.  Which meant slow down, go back into the garden, and sit down until I was settled.

 

Unfortunately I could not take a step in any direction at all.

 

For a minute or so I stood with my arms outstretched as if on a tightrope.

 

I saw a car coming a half mile or more down the road, so I had to move.  My wife was close by in the garden, I called her, and she helped me back into the garden.  There I sat on the ground with my head and back supported on the drive gate until i could be moved into the house.

 

The same thing happened several times since then.  Always when walking.

 

I tell my wife “I’m going down”.  Straight down, no matter where I am, wet or dry I have no options.  Walking risks a fall and injury.  I have to be careful when my wife helps me in that situation because I have pulled her down as well.

 

Supporting my back and head in a sitting position is the only way I can regain my balance enough to move once more.”

 

8. On page 17A of the papers, part of the WPSM and review claim forms which he completed on 18 November 2008, he said this:

“Since my operation (ENT) in 1976 my condition has deteriorated to a point last July where I found that whilst walking suddenly an attack of vertigo left me in a position so that I could not move in any direction, except down to the floor.  Then I have to sit until my equilibrium returns once more.  Not fully, but enough to move once again, with help.  Without help I have barely any control of my walking ability, until further rest restores my equilibrium and to change my wet trousers (ruined).”

On page 25 A, which is part of the same form, the claimant said:

“The intensity of my vertigo directly affects my ability to walk. This intensity also can depend on the circumstances of where e.g. easier in open space with no people, than in a crowd.

 

If this intensity is allowed to build up (sometimes I have no control, eg can’t sit down) it culminates in my total inability to move in any direction except down to the floor.  This comes about swiftly and without warning but up to now only when I am on my feet.

 

When  have an intense episodal period, e.g. I found myself in the middle of a country road (outside my house) but could not move one step in any direction Down to the floor and crawl out of the way on my bum (It took a while to get down) luckily there was nothing coming.  Therefore the danger lies in my inability to get out of harms way when I need to or that the vertigo puts me in harms way.”

 

9. The claimant relies strongly on a letter which his general practitioner wrote on 13 November 2008.  There are a number of copies of this letter in the papers.  The earliest will be found at page 21.  The doctor wrote as follows.

“I can confirm that this man suffers from benign paroxysmal positional vertigo which is by definition paroxysmal and unpredictable.  He has an element of this at all times but at times it gets particularly bad.  Certain types of motion precipitate episodes of acute disabling vertigo and he is without doubt unable to travel on public transport because of the nature of the motion of these types of vehicles.  I would be grateful if you would take this into account.  Thanks for your attention.”

It should, perhaps, be mentioned that when the claimant sent a copy of that letter, his own, accompanying letter, included the following comments – see page 22.

“Please note that from my major vertigo event in December 2000 I have been unable to travel on public transport.

 

My nearest available access to public transport is a bus stop some 2 kilometres from my house.  Which from December 2000, has been beyond my ability to reach on foot.”

I do not, however, consider that the distance between the claimant’s home and the nearest bus stop was what his general practitioner had in mind when he spoke of the claimant’s inability to use public transport.  It is clear that this inability arose “because of the nature of the motion of these types of vehicles ...”.

 

10. I turn to the other medical evidence.  The claimant was medically examined on 26 February 2009 and the resulting report will be found at pages 28A to 29A of the papers.  The examiner considered that the claimant walked with “wobbly gait – mild/moderate balance impairment”.  However, he was of the view that the claimant could walk “200 metres and more” without severe discomfort.  Further, that he was not restricted by physical pain or breathlessness to such an extent that the ability to walk was of little or no practical use.  He answered “no” to the questions “Does the exertion needed to walk present a danger to the pensioner’s life” and “Would the exertion needed to walk be likely to cause serious deterioration to the pensioner’s health”.  He answered “yes” to the question “Are the difficulties and restrictions in the pensioner’s walking ability wholly or mainly due to the disablement caused by the accepted conditions” (my italics).  In his concluding comments the examiner said that the claimant suffered from “overall mildly impaired mobility”.  Finally, he recorded the following.

“ ...  Vertigo started in about 2000.  Now learnt to live with the problem.  Cannot walk normally – balance affected.  Falls rarely – able to keep himself steady.  Sometimes has to sit on pavement due to severe dizzy spell – twice last year.  Walks with a stick due to balance problem.  Hates walking around the shops due to poor balance – tends to stay in car.  He goes for short walk at times – couple of minutes.  Tells me able to walk up to 30 yards.  Stairs – holds on to the rail.  Walks downstairs – sideways.  Able to walk around garden  - ok to walk slowly on the flat.  He drives – ok.  Drives to caravan club at times.  Has no significant musculoskeletal problems with back or legs.  ...”

The examiner also recorded “Romberg’s sign positive (suggests impaired balance)”.

 

11. The claimant also lodged three short letters from consultant ENT surgeons responsible for his care.  The first is dated 23 January 2008, and records:

“This gentleman is able to control his symptoms of imbalance, providing he keeps his head very still and there are no sudden or unusual movements of it, and he finds that microscopic suction [a procedure performed in the hospital clinic] makes his imbalance severe.”

The consultant ends by saying that she has suggested that “we see him in the clinic in one year”.  The second letter is dated 15 April 2009.  On this occasion it is recorded:

“At the moment he has no problems with the ear itself but the dizziness and the balance problem is getting worse.

...

Since he has had very little previous medication for his imbalance, we have decided to try him on Serc ... and we will follow him up in one month to see if this has made any difference to his quality of life.”

The third letter is written a month later (20 May 2009).  The claimant had had flu and, because of this, he could not say if the new medicine had improved matters.  He was advised to continue taking it.  The letter ended by saying that he “will be reviewed in the clinic in one year”.

 

12. The claimant’s appealed to the appeal tribunal stating, in his appeal form, “Put life at risk because of the effort to walk”.  His appeal was heard by the appeal tribunal on 11 November 2009.  The claimant did not attend the hearing.  Subsequently, in a letter dated 7 May 2010 (at page 57 of the papers) he explained  that “I said that I could not travel to the appeal.  Made available to the tribunal was the [letter from his general practitioner dated 13 November 2008, to which reference has already been made] confirming that I was unfit to travel”.  The claimant did not seek a domiciliary hearing.  The appeal tribunal heard, and dismissed, the appeal in his absence.  It set out the reasons for its decision in the following terms.

7. Having assessed all the evidence the Tribunal’s findings of facts material to the appeal are, in summary:

 

The evidence of the “Mobility” Board dated 26/2/09 (pp 28 – 29 rev SOC) is accepted by us.  The evidence is quite clear that Art 20(1)(b)(i)-(iii) are not applicable in this case.

 

The Appellant’s main contention is in relation to the dizzy spells that he experiences and which he contends brings his case within Art 20(1)(b)(iv).  However, it is clear both from the hospital letters in the SPC as well as the Board, that these have only occurred twice in the last year as at the date of the Board and that he is otherwise able to control his symptoms of imbalance.  He has a degree of pre-warning, and on the occasions referred to has been able to sit on the pavement.

 

8. The Tribunal’s considerations in deciding this Appeal, having regard to its findings of fact, to the relevant law and to the contentions put by the parties are, in summary, as follows;-

 

The Appellant is for the reasons at para 8 not entitled to Mobility Supplement.

 

13. The claimant sought permission to appeal to the Upper Tribunal on the basis of the grounds set out in his letter of 28 January 2010 (page 46 of the papers) to which he appended another copy of his general practitioner’s letter of 13 November 2008.  Permission to appeal was refused by the President of the War Pensions and Armed Forces Compensation Chamber who considered that the appeal tribunal had reached the correct decision in law on the basis of the evidence before it and on the construction of article 20(1)(b)(iv).  The application was renewed and came before me.  I granted permission so that it might be considered whether the appeal tribunal had applied the correct legal test and I referred, by analogy, to discussion in volume 1 of Sweet and Maxwell’s Social Security Legislation 2009/10.  See, now, page 670 of the current, 2010/11) edition.  In response to the directions which I gave the Secretary of State has lodged closely reasoned submissions which will be found at pages 63 to 70 of the papers.  The claimant has been given the opportunity to respond and his response will be found at pages 71 and 72.  It is accompanied by a letter dated 5 October 2010, from the ENT consultant surgeon principally concerned with his care.  The letter was written after she had seen him in her clinic on 23 September 2010.

 

14. The Secretary of State’s submissions satisfy me that the appeal tribunal did approach the appeal correctly.  Article 20(1)(b)(iv) is concerned with disablement that renders the exertion required to walk a danger to a person’s life or a likely cause of serious deterioration in his health.  It is not in issue that the claimant’s vertigo has got worse.  However, beyond that the appeal tribunal was faced with a conflict of evidence.  The claimant described his problems in graphic terms in his letters and claim form and said that the severe episodes of vertigo were brought on by walking.  The letter from his general practitioner was in more measured terms and referred to certain types of motion precipitating episodes of acute disabling vertigo and went on to say that the claimant was unable to travel on public transport because of the nature of the motion of these types of vehicles.  The letters from the consultants were even more low key – i.e. “the dizziness and the balance problem is getting worse”.  There was no medical evidence before the appeal tribunal that the exertion of walking is a likely cause of serious deterioration in the claimant’s health.  However unpleasant the severe episodes of vertigo are, the claimant does recover from them.  The claimant referred to the incident in the road outside his house and submitted that such an incident could amount to a danger to his life.  Nevertheless, he is not supported in this by the medical evidence.  The claimant deliberately chose, for whatever reason, not to attend the hearing of his appeal.  Consequently, the members of the appeal tribunal were unable to question him about this incident and the possibility of a recurrence.  In such circumstances the appeal tribunal dealt with the evidence in a permissible manner and reached conclusions which it was entitled to reach.

 

15. The Secretary of State goes on to submit that article 20(1)(b)(iv) is concerned with “the exertion required to walk” and that it is clear that these words are not satisfied in the present case.  Although the claimant says that the severe episodes come on when he walks, the medical evidence is to the effect that it is not the exertion of walking that is responsible but that certain types of motion precipitate these episodes.  I accept the Secretary of State’s submission and note that this is a point to which the Chamber President referred when he refused permission to appeal.

 

16. The claimant’s response at pages 71 and 72 relies on the recent letter from his ENT consultant.  I stress that that letter was not before the appeal tribunal which cannot, therefore, be criticised for not taking it into account.  I have, however, read it carefully.  Quite frankly, to the extent that it supports anyone it appears to me to support the Secretary of State.  The consultant says that the claimant “is coping with his balance symptoms but does have to think about what he is doing or about to do in order to keep his balance”.  Later she says that his “imbalance can affect him walking down the street and on walking through door[s] he sometimes has a tendency to walk into a doorpost”.  She ends by saying that he is to be reviewed in the outpatient clinic in a year.  The claimant himself says “I recently lost my balance on exiting my motor home” and that he could have injured himself badly.  However, this fall did not come about as a consequence of the exertion required to walk.

 

17. For these reasons I conclude that the appeal tribunal reached the right decision and I therefore dismiss the appeal.

 

 

Signed: J.P. Powell

Judge - Upper Tribunal

 

Dated: 2^nd February 2011