CDLA/4388/1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, brought by the claimant with the leave of a Commissioner, against a decision of the Durham disability appeal tribunal dated 17 May 1999 whereby they held that the claimant was not entitled to the mobility component of disability living allowance.  

2.	The tribunal’s decision was as follows:-

	“The Tribunal considers that [the claimant] is not entitled to an award of the mobility component of Disability Living Allowance.

	On 3 October 1998 and on a balance of probabilities, from at least 5 February 1998, [the claimant] was able to walk 50 metres before the onset of severe discomfort at a slow speed of walking, taking about 4 minutes to walk that distance and having no halts.  He limped on his right leg and his balance was stable while he needed no physical support from another person when walking outdoors nor did he need guidance or supervision whilst walking outdoors along an unfamiliar route most of the time.  On 3 October 1998 when examined by an Examining Medical Practitioner of the Benefits Agency, he had had 4-5 falls in the preceding year, the last fall having been 2 months before the date of his examination when he fell because his right knee gave way.  He had had no serious injuries or broken bones as a result of any of these falls.

	The Tribunal considers that [the claimant] is not unable or virtually unable to walk out of doors due to physical disability taking into account the time, the distance, the speed and the manner of his walking and it considers that the effort needed would not put his life at risk or be likely to lead to a deterioration in his health.  It considered that it was not the case that he was able to walk but so severely disabled physically or mentally that disregarding any ability he might have had to use routes which are familiar to him on his own, he could not take advantage of the faculty of walking out of doors without guidance or supervision from another person for most of the time.

	The Tribunal accepted the evidence of the Examining Medical Practitioner in preference to that of [the claimant] where they conflict.  The Examining Medical Practitioner had produced a full and careful report and history, including clinical findings based on [the claimant’s] condition on the relevant day and taking into account observations that he had made on that day.  He is experienced in examining for this particular benefit and disinterested in the outcome of this particular appeal.  The Examining Medical Practitioner report did not conflict with that of [the claimant’s] GP in relation to the distance which he could walk before experiencing severe discomfort.  The Tribunal makes its conclusion based on the evidence of both the doctors.”

3.	The claimant initially appealed on the basis that, on the tribunal’s findings, the decision was perverse.  The Secretary of State supported the claimant’s appeal submitting:-

	“5.	In his submission to the tribunal (85-86) the claimant argues that walking 50 metres in 4 minutes is slow as to be virtually unable to walk.  He cites a number of Commissioners decision in support of his argument.  In their reasons for decision the tribunal merely state

		The Tribunal considers that [the claimant] is not unable or virtually unable to walk out of doors due to physical disability taking into account the time, the distance, the speed and the manner of his walking ...

	It is my submission that the tribunal’s reasons do not adequately explain why they do not accept the claimant’s argument thus rendering their decision erroneous in law.”

That seemed to me not to be a very satisfactory submission and I issued a direction in the following terms:-

	“I direct the Secretary of State to make a full submission in this case.

	Does the Secretary of State accept the claimant’s argument that, on the tribunal’s findings of fact as to the extent of the claimant’s ability to walk, the tribunal’s decision was erroneous in point of law on the ground that it was one that no tribunal properly instructed as to the law could reasonably have reached?  If not, is it submitted that the decision reached was the only decision open to the tribunal?

	Why does the Secretary of State suggest that the tribunal gave insufficient reasons for making their findings of fact?  Is this not a case where the fact that the tribunal accepted the examining medical practitioner’s evidence explains why they rejected the claimant’s evidence insofar as there was a conflict?

	In paragraph 5 of the submission dated 17 November 1999, it appears to be suggested that further reasoning was required from the tribunal beyond their reasons for making their findings of fact.  If it was clear what statutory provision the tribunal had in mind and if their findings were clear and their reasons for making those findings were also clear, what further reasons were the tribunal required to give for their decision in the circumstances of this case?”

The Secretary of State’s response was to resile from the original submission and to submit that the appeal should be dismissed.  The Secretary of State relied upon R(M) 1/91 in which the Commissioner said:-

	“4.3	The claimant argues that the tribunal have not referred to his letter of 8.3.99, in which he cites various Commissioners decisions in support of his contention that a walking ability restricted to walk 50 metres satisfies the ‘virtually unable to walk’ condition.  In Commissioner’s decision R(M) 1/91 the Commissioner held

		‘What constitutes an inability to walk to any appreciable extent is a matter of fact and is for the tribunal to determine.  They must apply their own judgement, and so long as their decision is not perverse, it is not open to the Commissioner to interfere.  In the present case the tribunal decided that, as the claimant could walk without discomfort within regulation 3(1)(b) for 50 yards, he had taken himself out of the category of one who was unable to walk or virtually unable to walk.  I consider that the tribunal were entitled to reach this conclusion.’”

I issued a further direction drawing attention to paragraph 21 of CDLA/805/94 in which I said:-

	“21.	However, Mr Hewitt [on behalf of the adjudication officer] argued that the tribunal ought to have made a finding as to the extent to which the claimant was prevented from walking further after he had walked 400 yards, which was a point the claimant had specifically mentioned in evidence.  He submitted that that was relevant to the question of the length of time for which the claimant could walk, which is a relevant consideration under regulation 12(1)(a)(ii) [of the Social Security (Disability Living Allowance) Regulations 1991].  I have come to the conclusion that he is right.  A tribunal is entitled to conclude that a claimant is not virtually unable to walk if he can walk without severe discomfort for 400 yards at a reasonable, albeit slow, pace and, although obliged then to stop for, say, five minutes to recover, can afterwards walk without severe discomfort for a further 400 yards at the same pace.  However, it would not be inconsistent were the same tribunal to conclude that a claimant was virtually unable to walk if, after walking the first 400 yards, he had to wait for two hours before being able to walk a further 400 yards.  Regulation 12(1)(a)(ii) refers to distance, speed and length of time.  As speed is a function of distance and time, it is to be presumed that the purpose of including all three factors is that consideration of the length of time for which a person is able to walk requires an adjudicating authority to take account of limitations as to time beyond the limits necessarily implied by the fact that it must take a certain length of time to walk the distance the claimant can manage at the speed he can manage.  Accordingly, I accept that the tribunal’s decision is erroneous in point of law because the chairman failed to record any finding on the claimant’s assertion that there were periods when he was unable to walk at all after he had walked a moderate distance.”

4.	The Secretary of State’s representative has not commented directly on that decision but has referred to CM/379/89, CM/77/94 and CSDLA/252/94 in which Commissioners have emphasised the limited scope of the phrase “virtually unable to walk”.  The first two of those decisions were given by the same Commissioner and it is important to note that, in the earlier of the two cases, the Commissioner made the point - also made in R(M) 1/91 - that it was for a tribunal, rather than a Commissioner, to judge, taking into account the relevant criteria, whether or not a claimant was “virtually unable to walk”.  It is clear from R(M) 1/91 that a Commissioner cannot generally interfere with a tribunal’s decision where the tribunal has found that a claimant who can walk 50 yards is not virtually unable to walk and it may well be that the examples of 400 yards I used in CDLA/805/94 were unrealistic.  However, I do not accept the converse proposition, to be found in CSDLA/252/94, that:

	“If someone can walk even 50 yards, albeit slowly and with a limp, and even if a rest is involved, before the onset of severe discomfort that person cannot, in my judgment and as a matter of law be ‘virtually unable to walk’.”  (My emphasis.)

In my view, provided that a tribunal who have found a claimant to be able to walk only 50 yards have properly had regard to the slowness of the walking, the severity of the limp and the length of any rest required while walking that distance and afterwards, a Commissioner is not entitled to interfere with their judgment whichever way they decide the case.  Too much weight tends to be put upon the distance a person can walk when that is but one of four criteria and I suspect that is because estimates of distance are considered to be precise.  In reality, a precise finding as to the distance a person can walk is no more attainable than a precise finding as to the speed of walking.  Estimates are usually of doubtful accuracy and walking ability may be variable.  That was recognised in Baron v. Secretary of State for Social Services (reported as an appendix to R(M) 6/86), where the Court of Appeal held that a tribunal are not usually required to record a precise finding as to the distance a person can walk without severe discomfort.  In any event, to say that a person can walk 50 yards frequently begs the question: what happens then ?  and, for the reasons I gave in CDLA/805/94, that question must be considered.

5.	The claimant submits:-

	“While the individual factors used to assess virtual inability to walk have been quoted in the findings of the tribunal, it is not clear whether they have been assessed in isolation or whether it is their combined effect which has been considered.  Surely it is the latter which is applicable otherwise the situation could arise where an applicant who could walk a slightly shorter distance than [the claimant] at a pace several times faster, or who could walk reasonably longer distances at a slightly slower speed could be considered virtually unable to walk when he himself is not.”

It seems to me to be plain that the tribunal did take into account the combined effect of all the criteria to which they referred and, had they referred to all the relevant criteria, I would take the view that their decision was unassailable.  

6.	However, the tribunal said nothing about the length of time for which the claimant would have to stop after walking 50 yards.  As I have said, that was a material issue and, with some hesitation, I accept that the tribunal’s decision is erroneous in point of law because they did not take that matter into account.  My hesitation is occasioned by the fact that that was not a matter upon which the claimant himself had placed a great emphasis and my consequent doubt that investigating it would have made any difference to the tribunal’s decision but, on balance, I consider that the case should be put before another tribunal.  

7.	Accordingly, I allow the claimant’s appeal.  I set aside the decision of the Durham disability appeal tribunal dated 17 May 1999 and I refer the case to an appeal tribunal, constituted under regulation 36 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 by panel members who were not members of the tribunal whose decision I have set aside, for determination.

M. ROWLAND
Commissioner
27 November 2000