PLH                                                                         Commissioner's File:  CDLA 1456/02

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  		Disability Living Allowance
Appeal Tribunal: 	Hull
Tribunal Case Ref:  	U/01/006/2001/01716
Tribunal date:		21 January 2002
Reasons issued:		4 February 2002

1.	This appeal by the claimant is dismissed, as in my judgment there was no error of law in the decision of the Hull appeal tribunal sitting on 21 January 2002, in which they confirmed the rejection of the claim he had made for disability living allowance from 1 June 2001 on the ground that the medical and other evidence before them did not establish to their satisfaction on the balance of probabilities that he met the statutory conditions for an award of either the mobility or the care component. 
2.	The claimant is a man now aged 40 who according to his own evidence slipped a disc at the age of 18, which gave him some continuing problems with his lower back, and had a further accident 9 or 10 years later when a motorbike fell on him in 1988, giving him much more serious continuing problems with his upper back and spine.  In addition he suffers from asthma which is largely controlled by inhalers, and psoriasis which flares up from time to time.  He claimed disability living allowance unsuccessfully in 1998 when the refusal was confirmed by a tribunal on appeal, and the present appeal arose out of the fresh claim he made in June 2001. 
3.	The real issue in the case was whether the chronic back pain he experiences had, at the date of the Secretary of State’s decision under appeal which was given on 27 June 2001, been shown to amount to a sufficiently severe disabling condition as to make him “virtually unable to walk” for the purposes of the higher rate mobility component (for which it also had to be shown to amount to physical disablement), and/or whether it so inhibited him in his daily ability to care for himself that he was entitled to either the middle or lower rate of the care component:  see sections 72, 73 Social Security Contributions and Benefits Act 1992.  
4.	The Secretary of State rejected the claim for both components on the basis of a 26-page medical report from a Mr Ray FRCS, who recorded that on examination he found no reduction in function in any of the claimant’s limbs and only comparatively slight abnormalities on examination of his back and spine which did not limit his mobility, limbs or locomotion significantly.  Mr Ray’s opinion on the basis of his examination findings and observation was that the claimant would be able to walk a distance of 1,000 yards before the onset of any severe discomfort.  He could manage all normal daily activities for himself and had no more need for help or supervision in relation to performance of essential daily functions now than he had had before his accident in 1988, which was none.
5.	The claimant’s appeal to the tribunal, pursued as had been the previous one with the assistance of an experienced representative from the “Disability Rights Advisory Service” in Hull, was based as it had to be on an attack on Mr Ray’s findings as unsound, with a short report from his own GP and a longer specially commissioned one from an independent GP both confirming his own contentions that his walking ability in particular was much more limited.  At the hearing on 21 January 2002, which was a full hearing before a three-person tribunal including a medical member and one which special disability experience, the claimant attended and gave detailed oral evidence, supported by his representative Mr D Mackenzie who directed the tribunal to all relevant issues.  
6.	Having considered the evidence, this tribunal too concluded that the statutory conditions for an award of the allowance on either mobility or care grounds had not been established to their satisfaction.  They expressly addressed the apparent conflict in the medical evidence, and the reasons why they decided not to accept the claimant’s own assessment of his very limited abilities, in a very clearly expressed statement of reasons issued to the parties on 4 February 2002, in the course of which they said:
“6.	There is a conflict of medical evidence in his case.  Dealing at this stage with walking, the Examining Medical Practitioner, Mr Ray (22 June 2001) found nothing abnormal on clinical examination (page 47) and based on this, history, and observation, formed the opinion (page 51) that [the claimant] could walk 1000 yards before the onset of severe discomfort at a normal to slow pace in 15 minutes without stopping, with normal gait and balance and not needing any support.
7. On the other hand, in his support, [the claimant]’s General Practitioner, Dr Shores, had endorsed his claim pack (page 38) “Cannot walk more than 40 metres without pain” which coincides with [the claimant]’s own statement in his claim pack (page 18).  Further, a private report commissioned by [the claimant] from an independent general practitioner, Dr Nayar, offers an opinion that “on a good day he can walk between 50 to 70 metres and this takes between 5 and 10 minutes” (page 85), again, based on history, observation and examination.
8. We had to form an impression of the credibility of [the claimant]’s oral evidence and we detected discrepancies or inconsistencies or lack of appropriate response which led us to conclude that he was understating his walking capabilities.
9. We have already referred to the fact that he attributed a lot of his walking difficulty to upper back pain which is not anatomically viable.  Also, the account he volunteered of his limited walking contradicts his previous written assertions in his claim pack and the opinions of Dr Shores and Dr Nayar.
10. As [the claimant] bears the burden of proof, and having conceded that there are medical opinions either way, we find against his claim for mobility component on the basis that there is no acceptable explanation of the physical disability which he says restricts his walking ability to 40, 50 or 70 metres, that we question his credibility, and that we have before us an impartial, independent objective report from a doctor (Mr Ray) who will have been trained in disability assessment and which is consistent with our own views.
11. We therefore adopt as our findings in relation to time, manner, speed and distance and the absence of severe discomfort Mr Ray’s statements on pages 51 and 52 of his report dated 22 June 2001 on the basis of which we conclude that he is not unable or virtually unable to walk and does not satisfy the conditions between 1 June 2001 and 27 June 2001 for higher rate mobility component.”
7.	The tribunal then dealt with the issue of the claimant’s care requirements, where his representative had confirmed that his contentions were restricted to the two aspects of the lowest rate based on a need for personal attention for a significant part of the day or inability to cook a main meal.  They concluded that neither of these had been established on the facts: again they said they found the claimant’s own evidence exaggerated, and the limitations he claimed were not supported even in the medical report submitted on his own behalf.  
8.	In support of the appeal Mr MacKenzie argues that the tribunal were wrong to have rejected the claimant’s own evidence of a severely restricted walking ability which was not contradictory and should have been accepted from the straightforward person Mr MacKenzie has himself always found the claimant to be.  It was not justifiable for the tribunal to have preferred the examining medical practitioner’s report since this contained a comment that 50% of the claimant’s difficulties were due to “non‑organic factors” and this was not a point even hinted at anywhere else in the medical evidence, all of which had accepted the claimant as genuine.  In particular the endorsement of the claimant’s own GP, who had known him many years, should have outweighed the EMP’s report.  The tribunal were wrong to have placed so much emphasis on the claimant’s upper back pain as not being an “anatomically viable” explanation for his walking difficulties, as the medical evidence confirmed lower back problems as well.  The claimant himself adds three pages of comments of his own on this and other aspects of his evidence, contending that the tribunal’s rejection of his case was unjustified.
9.	I have considered all of these contentions carefully but in my judgment the submissions of Mr R Steele dated 4 July 2002 on behalf of the Secretary of State must be accepted as right, and the tribunal’s treatment of the evidence in this case cannot be said to have been erroneous in law so as to justify setting their decision aside.  An appeal to a Commissioner under section 14 Social Security Act 1998 against the decision of a tribunal can of course succeed only if there is some error or misdirection in law involved in the decision itself or in the way the tribunal went about their task.  The tribunal are the body charged by Parliament with hearing and considering the evidence in the case, and reaching the decision whether the facts establish that a particular claimant meets the statutory conditions for an award of benefit or not.  Inevitably this may involve them in difficult judgments of fact and degree, and in having to make up their minds on a balance of probabilities on evidence which may show there is something to be said on both sides, and where conscientious and professional people applying their minds to similar factual evidence may well arrive at differing conclusions on which side of the line a particular case falls.  
10.	In such cases, the well established test that is applied by the Commissioners, in common with other appellate legal tribunals, is that the mere fact that another equally conscientious tribunal or professional person might legitimately reach the opposite conclusion on a particular set of facts does not make the tribunal’s decision even arguably “wrong” as a matter of law.  That only becomes the case when the tribunal’s treatment of the factual evidence is so bizarre and irrational as to make their decision “perverse” in the legal sense, meaning that the appellate tribunal is satisfied that no reasonable tribunal properly directing its mind to the relevant issues in the case could have reached the conclusion this one did, so that it has to be concluded they must have misdirected themselves on the relevant issues in the case or on the law at some point, and their decision cannot be allowed to stand.  
11.	In this jurisdiction as in others, a Commissioner as the appellate legal tribunal must be extremely cautious to avoid concluding that the decision of an experienced tribunal of fact which has heard and seen the evidence, and applied its own knowledge and expertise in reaching its assessment, can be flawed just because he may think there could be ground for a differing view, or that another person or tribunal might have reached a differing conclusion on the facts of the case.  The result is that it is quite rightly a rare thing for an appeal to succeed on the ground of unreasonableness or perversity in a tribunal’s findings on medical and factual issues, especially questions of degree and credibility such as those that determined this case.  
12.	In my judgment, this appeal must fail, because none of the grounds of criticism of the tribunal’s findings and treatment of the evidence which have been put forward demonstrate unreasonableness or perversity in the required sense to amount to an error in law.  I express no view on what conclusion I would myself have formed of the evidence in this case, since it is simply not my business to express (or even to form) such a view:  I was not the tribunal actually hearing and dealing with the case, and I did not of course have the advantage, which the tribunal did, of seeing and hearing the evidence given by the claimant himself or judging whether this appeared exaggerated. The assessment of the weight and credibility of the evidence put before a tribunal is for that tribunal, and not anybody else, to make.
13.	Similarly, given the apparent conflict of medical evidence before the tribunal in this case it was for them to determine which of the conflicting medical opinions to accept.  Their conclusion that on the balance of probabilities it had not been established to their satisfaction that the claimant suffered from the severe degree of practical disabilities he claimed was plainly one it was open to any reasonable tribunal to reach, in particular having regard to the conflict between the medical opinions, and the tribunal’s doubts about some aspects of the claimant’s own evidence, and their reasons for that conclusion are fully and clearly explained.  The statement of reasons makes clear that the tribunal did take proper account of all the evidence put forward by the claimant, and I therefore do not accept the suggestion that they erred in failing to refer to such things as his lower back pain in more detail than they did.  
14.	For those reasons, having now had the advantage of full submissions from both sides, I am not persuaded that this appeal represents more than an attempt to reopen and reargue issues of fact in the case that have already been properly determined by the tribunal, and I accordingly dismiss it.

(Signed)
P L Howell
Commissioner
20 August 2002