Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/1246/2012

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Sutton on 12 August 2011. For the reasons set out below I dismiss the appeal.

2. The Claimant is a woman now aged 55. The First-tier Tribunal’s decision was to dismiss the Claimant’s appeal against a decision, made on 30 April 2010, disallowing from 13 May 2010 (the renewal date) the Claimant’s renewal claim for disability living allowance. The Claimant had previously had an award of the higher rate of the mobility component (but no award of the care component) for the period from 13 May 2008 to 12 May 2010.

3. I held an oral hearing of the appeal at which the Claimant was represented by Mr Iain Carter, of counsel, instructed through the Free Representation Unit, and the Secretary of State was represented by Mr Jeremy Heath of the Office of the Solicitor to the Department for Work and Pensions. Mr Carter had also represented the Claimant before the First-tier Tribunal.

4. The appeal raises a short but potentially important question of construction of regulation 12(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991.

5. Section 73(1)(a) and (11)(a) of the Social Security Contributions and Benefits Act 1992 provide that a person shall be entitled to the higher rate of the mobility component “for any period ……… throughout which he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so”. Section 73(5) (under which regulation 12(1) of the 1991 Regulations is to be treated as made) provides that circumstances may be prescribed in which a person is to be taken to satisfy or not to satisfy a condition in subsection (1)(a).

6. By regulation 12(1) of the 1991 Regulations:

“A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) of the [1992 Act] (unable or virtually unable to walk) only in the following circumstances –

(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to the place of, or nature of, employment –

(i) he is unable to walk; or

(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk; or

(iii) the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health; or

(b) …………………………………………..”

7. I pause here to note that it has been held that “exertion” in limb (iii) is not limited to the sort of condition associated with cardiac or pulmonary deficiency, but includes any sufficient deterioration in health which the act of walking would effect. It therefore extends, for example, to cases where walking would endanger the spine (CDLA/5494/1997), where diabetic neuropathy in the legs and feet gave rise to a danger of ulceration of the feet and possible amputation (CDLA/2973/1999), and to the sort of knee condition under consideration in CDLA/3941/2005 (see especially para. 22 of that decision).

8. The Claimant suffers from a heart condition called mitral stenosis, with associated pulmonary hypertension. The First-tier Tribunal found, and Mr Carter accepts that it was entitled on the evidence before it to find, that at the material time the Claimant was generally able, even on bad days, to walk for 10 to 12 minutes on the flat before stopping owing to breathlessness caused by her heart condition. The Tribunal found that her walking pace would be slow, but that she was able to walk a distance well in excess of 100 metres before the onset of breathlessness. Mr Carter accepts that the Tribunal did not go wrong in law in deciding, on those findings, that the Claimant did not satisfy the test of virtual inability to walk set out in reg. 12(1)(a)(ii) of the 1991 Regulations.

9. However, he contends that the First-tier Tribunal did go wrong in law in relation to its treatment of reg. 12(1)(a)(iii). The Tribunal’s reasoning was that the Claimant did not come within that provision because her consultant’s opinion was to the effect that she should not undertake activity involving “moderate or strenuous exertion”, and doing the sort of walking which she was able to achieve would not, in the Tribunal’s view, involve even moderate exertion, within the meaning of the consultant’s advice.

10. Mr Carter contends that the First-tier Tribunal went wrong in failing to recognise that reg. 12(1)(a)(iii) applies if danger to life etc would result from the exertion of walking the sort of distance and at the sort of speed etc which a person of the Claimant’s age without disability would be able to walk.

11. That submission is founded on the decision of Mr Commissioner Angus in CDLA/3420/2005. In that case the claimant suffered from a heart condition which carried a risk of a ruptured aneurysm. The tribunal found, on the basis of the medical evidence, that “walking reasonable distances causes no danger to the claimant’s health and therefore he is not entitled to higher rate mobility component.” The Commissioner considered that that approach involved an error of law:

“13. ……………….. Neither the medical evidence nor that passage from the statement of reasons properly addresses the head (iii) test. That head does not refer to walking which is modified in any way as regards speed, distance or the time for which walking is sustained. The head (iii) test is, therefore, whether or not the exertion of walking what would be for a person of the claimant’s age and sex normal distances at normal speeds would constitute a danger to his life or be likely to lead to a serious deterioration in his health.”

12. The Secretary of State submits that Mr Commissioner Angus’ construction of reg. 12(1)(a)(iii) must be wrong in that it could result in entitlement to higher rate mobility for a person who, is able to walk, without danger to life or health, for distances and at speeds substantially in excess of those which would lead to entitlement under 12(1)(a)(ii). I agree. Take the case of a person aged 50 whose knees become painful on walking, say, more that a mile, and who is advised that, while it is beneficial regularly to walk short distances, he should avoid regularly walking distances in excess of a few hundred yards because to do so would substantially accelerate the date when knee replacement surgery will be necessary. Such a person would plainly not qualify under limb (ii), and it would in my judgment be anomalous if he could qualify under limb (iii) when he can and indeed is advised regularly to walk distances up to a few hundred yards.

13. Indeed, the facts in an earlier decision of Mr Commissioner Angus (CDLA/3941/2005) were along those lines. The claimant suffered from knee problems such that she required periodical knee “wash-outs” (arthroscopies) under general anaesthetic, and was likely eventually to need a knee replacement. The appeal tribunal found that she walked her children to and from their schools each day “necessitating several separate journeys on foot each day, amounting to 3 miles in total.” The Commissioner summarised the medical evidence as being that “although the claimant seems to have been advised to walk in order to maintain muscle bulk she has also been advised that if she does not restrict her walking, particularly but not exclusively on hills and stairs, she will need a knee joint replacement sooner than would otherwise be the case.” The Commissioner set aside the First-tier Tribunal’s decision, on grounds which are not directly material for present purposes. What is significant for present purposes is that he substituted his own decision, finding that limb (iii) was satisfied.

14. The written submission on behalf of the Secretary of State in this appeal contends that the words “the exertion required to walk” in limb (iii) refer not to such walking as a person of the claimant’s age without disability would normally be able to achieve, but rather to such walking as the particular claimant is actually able to achieve without severe discomfort. I agree that limb (iii) must be read in that way.  That construction would prevent limb (iii) applying in any case (such as the present case) where danger to life or health imposes no additional limitation on the claimant’s walking ability over and above other physical limitations taken into account under limb (ii). That would be sufficient to dispose of the present appeal.

15. However, as Mr Heath recognised in argument, that construction could still lead to anomaly. In the example which I gave in para. 12 above, the claimant would, even on the Secretary of State’s construction, be entitled to higher rate mobility even though he could, without danger to life or health, regularly walk distances of several hundred yards in a normal manner and without severe discomfort. On this construction limb (iii) would be capable of applying in any case where the danger to life or health does impose some additional limitation on the particular claimant’s walking, even if it is not a sufficiently substantial limitation to render the claimant virtually unable to walk, within any normal meaning of that expression. This would mean that, the more extensive a claimant’s walking ability without severe discomfort, the more room there would be for a contention that he is brought within limb (iii) by a restraint on his walking imposed by risk to life or health arising from the exertion of walking. That cannot in my judgment be right.

16. Limb (ii) refers to physical ability to walk without severe discomfort, and expressly requires that the limitations are such that the claimant is “virtually unable to walk.” Limb (iii) applies where the exertion required to walk would constitute a danger to life or would be likely to lead to a serious deterioration in health, but it does not expressly require that that constraint on the claimant’s walking be such that the claimant is “virtually unable to walk.” It is the absence of such a requirement which led Mr Commissioner Angus to say what he did in CDLA/3420/2005, and which led the Secretary of State to propose a construction which, although in my judgment correct, would not on its own be sufficient to avoid the possibility of significant anomaly.

17. In my judgment, and as Mr Health helpfully accepted during the course of the argument, the only sensible construction of limb (iii) is that it is implicit that the constraint on the claimant’s walking imposed by the danger to life or health must be such as to render him unable or virtually unable to walk. In my judgment it is clear that limb (iii) was intended to do the same job as limb (ii), but in the case where the constraint on the claimant’s walking arises not from simple physical difficulty or from discomfort, but from the danger to life or health which the exertion required to walk would involve. It must always be borne in mind that the purpose of reg. 12(1) is to prescribe the only circumstances in which a claimant is to be taken to satisfy the condition that he is either unable or virtually unable to walk.

18. If reg. 12(1) had not been enacted, it would have been necessary for social security adjudicating bodies to consider what is meant by “virtually unable to walk” in s.73(1)(a). It would clearly have been necessary to take into account the factors mentioned in limb (ii). In particular, it would have been necessary to hold, it seems to me, that walking which can only be achieved with severe discomfort should be disregarded. Similarly, the only reasonable construction would have been that walking which could only be achieved with substantial risk to life or to health should also be disregarded. Limbs (ii) and (iii) in my judgment really do no more than to spell out what in any event would have been implicit.

19. It may be objected that, if that is what the draftsman of limb (iii) meant, the qualification that the constraint imposed by danger to life or health must be such as to render the claimant unable or virtually unable to walk would have been made express, as it is in limb (ii). It could further be objected that the obvious way of achieving this objective would have been not to have a separate limb (iii), but simply to insert in limb (ii) an additional qualification that the walking must be not only without severe discomfort but also without danger to life or health. The latter objection in my judgment carries less force, in that limb (ii) would have become long and very unwieldy if that had been done. There is in my judgment no satisfactory answer to the first objection, other than to say that, as is my judgment the case, this is simply a case of somewhat sloppy drafting.

20. In summary, therefore, I must disagree with what Mr Commissioner Angus said in para. 13 of CDLA/3420/2005 (see para. 11 above). For the same reason, it is in my judgment likely that the decision which the same Commissioner substituted in CDLA/3941/2005 (see para. 13 above) would have been different if he had construed limb (iii) correctly. It appears that the claimant in that case was advised to refrain only from regular excessive walking, such as that involved in the trips to and from her children’s schools which totalled about 3 miles each day. It does not appear that the constraint on her walking imposed by the acceleration of the need for knee wash-outs and eventually knee replacement was reasonably capable of being regarded as rendering her virtually unable to walk. The Commissioner did not ask himself whether it was.

21. Mr Carter helpfully accepted, in my judgment rightly, that if the construction of limb (iii) is as I have held (or indeed as the Secretary of State originally submitted), the Claimant’s appeal in the case before me must fail. The Tribunal found that the risk to the Claimant’s health arising from the exertion required to walk did not in practice impose any additional constraint on her walking, over and above that in any event imposed by the breathlessness caused by her heart condition, which did not bring her within limb (ii). It was therefore right to find that she did not satisfy limb (iii) either.

Charles Turnbull

Judge of the Upper Tribunal

20 May 2013