Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No: CDLA/3447/2012

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright

DECISION

The Upper Tribunal allows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Warrington on 8.08.12 under reference SC078/12/00204 involved an error on a point of law and is set aside.

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.  

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

DIRECTIONS

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

(1)            The new hearing will be at an oral hearing.

(2)            The appellant is reminded that the tribunal can only deal with his situation as it was down to 19.12.11 and not any changes after that date.

(3)            If the appellant has any further evidence that he wishes to put before the tribunal this should be sent to the First-tier Tribunal’s office in the Liverpool Appeals Service Centre within one month of the date this decision is issued.

(4)            The First-tier Tribunal should have regard to the points made below.

REASONS FOR DECISION

1.               This is an appeal by the claimant from a decision of the Warrington First-tier Tribunal (SEC) dated 8.08.12. I will refer to this from now on as “the tribunal”. The tribunal dismissed the claimant’s appeal from the Secretary of State for Work and Pension’s decision of 19.12.11. The Secretary of State’s decision of that date was that the appellant was not entitled to Disability Living Allowance (“DLA”) with effect from 15.11.11 (the date of claim).

2.               Permission to appeal to the Upper Tribunal was refused in the first instance by a District Tribunal Judge on 17.09.12, however on the renewed application to the Upper Tribunal I granted the appellant permission to appeal on 12.11.12.  I gave permission to appeal on the following grounds:

“The grounds of appeal put forward on behalf of [the appellant] are arguable.

It is also arguable that the First-tier Tribunal erred in law in (a) not making an overall assessment of [the appellant’s] walking ability, instead focusing on the odd one-off of his trip to Greece, and (b) failing to make any findings of fact as to the walking [the appellant] was able to do (in terms of distance and time it took him) “without severe discomfort”.

3.               The Secretary of State supports the appeal on the “mobilising in Greece” point and argues that it constitute an error of law. He asks for the appeal to be remitted to the First-tier Tribunal to be re-decided.

4.               The appellant’s representative’s observations in reply, dated 12.03.13, agree with the Secretary of State and consent to a decision being given without reasons.

5.               I consider that the tribunal did err in law. This was for two reasons.

6.               However before turning to those reasons I should mention one issue about the first error of law ground made on behalf of the appellant on page 90.  The error of law here is founded, at least in one respect, on a second alleged GP report, dated 28.03.12, which it is said was/is on page 64 of the appeal bundle.  However, no such report appears on page 64 (that page is the 21.06.12 grant of a postponement), nor is it evident anywhere else in the appeal bundle.  I do not consider the tribunal can be criticised for not having regard to a report that was (for whatever reason) not before it.

7.               As the appeal has to be remitted to another First-tier tribunal, the point in one sense does not matter. However, I mention it just in case it is a report that the appellant would wish to put before the First-tier Tribunal.

Airports – Greek and otherwise 

8.               Reliance on a one-off trip abroad and the related “walking” at the airports on either side of the flight abroad as good evidence on the virtually inability to walk test under section 73(1) (a) of the Social Security Contributions and Benefits Act 1992 and regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991 is notoriously prone to difficulties.

9.               To start with, even if walking is done in an airport (as the tribunal found here), due allowance has to be made for the fact that this is walking indoors whereas the statutory test looks at walking outdoors, and consideration still has to be given to how far the person walked in the airport, how long that took him, whether he had any halts, and, crucially, how much of that walking was done without severe discomfort (CDLA/3165/1998 at paragraph 12); and appropriate findings of fact have to be made (CDLA/331/2006 at paragraph 3). No such analysis of the appellant’s walking in the Greek airport was carried out by the tribunal here, nor did it asses how far he walked (contrary to the appellant’s case) at Manchester airport.  As the Secretary of State’s representative helpfully points out, there are 15 international airports in Greece, but the tribunal here took no steps to identify which one the appellant flew to or how far he had to walk in that airport in order to get to passport control (or indeed what he did after he had passed passport control). These investigative failures and the resultant failure to make appropriate findings of fact mean the tribunal erred in law.

10.            In addition, there was evidence that the appellant had pain on walking (page 55) and some evidence of difficulties with pain management (bottom of record of proceedings on page 69 – Naproxen upset appellant and taken off Ibuprofen). In these circumstances, I consider, first, that the tribunal ought to have investigated with the appellant why he was taken off Ibuprofen and when this occurred and said why, despite this evidence, it accepted the GP’s evidence that he was (only) on Ibuprofen.  Second, the tribunal needed to explain why the pain which it accepted the appellant was in when walking did not amount to severe discomfort. 

11.            Moreover, tribunals need to be astute to examine the reasons why a walk through an airport may have been undertaken despite the pain it may have brought on (e.g. to get to a wedding or visit a sick relative – see CDLA/2108/2010), and bear in mind that it is in most, if not all, cases walking that it is not normally undertaken. This is important because if, as here, the walking at the airport is a key aspect of the evidence relied on by the tribunal, it needs to be able to explain why this one-off walking is demonstrative of the claimant’s overall walking ability.  In addition, the airport walking was done here in July 2012, which is a date and a circumstance obtaining after the date of the decision under appeal (19.12.11), and so ought to have been ignored as relevant evidence under section 12(8)(b) of the Social Security Act 1998 unless an adequate explanation was given about why such walking was relevant to the appellant’s ability to walk in December 2011: CDLA/3351/2007  

12.            None of this was done adequately by the tribunal in its assessment of the evidence here, or at least its reasoning does not show that it did this, and it therefore erred in law.

13.            If I may say so, rather than focusing on the airport walking it would have been more useful, in my judgment, for the tribunal to have taken evidence from the appellant about the walking he normally did in or around December 2011 (e.g. to his GP or to the coffee shop at the supermarket) and based its decision on such walking that he did then which could be done without severe discomfort.

Driving

14.            The tribunal also relied on the fact that the appellant drove to a supermarket and walked into it to sit in the café having a coffee whilst his wife shopped.  The tribunal said that “[a]s a matter of common sense…if the appellant were virtually unable to walk he would neither be wiling nor able to carry out such a leisure activity”. I struggle to understand this reasoning and why these actions are inconsistent with someone who is virtually unable to walk.  For a start, which leisure activity was the tribunal relying on? Presumably it wasn’t the sitting down to drink a cup of coffee as that can have nothing to do with walking.  But if it was the walk to the coffee shop, how far was that walk, how long did it take the appellant to walk this distance, how did he mange it (e.g. stopping), and how much of it did he achieve without discomfort? None of this is addressed, and so renders the reasoning inadequate. Or was it the act of driving? If it was then the reasoning does not address why the skills involved in driving were relevant to the “virtual inability to walk” test. The number of relevant questions that arise out of this finding/reasoning is testament enough to its inadequacy.

15.            It is for all these reasons that the tribunal’s decision dated 8.08.12 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).  The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether his appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.

 (Signed) S. M. Wright

Judge of the Upper Tribunal

Dated 2^nd May 2013