THE SOCIAL SECURITY COMMISSIONERS

	Commissioner's Case No:  CDLA/1850/2001

	SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
	SOCIAL SECURITY ACT 1998

	APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL
	ON A QUESTION OF LAW

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

	COMMISSIONER: MR J MESHER

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant's appeal is allowed. The decision of the Sheffield appeal tribunal dated 2 February 2001 is erroneous in point of law, for the reason given below, and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraph 14 below (Social Security Act 1998, section 14(8)(b)).

2.	This is the second time on which I have had to consider this case. I set aside an earlier decision by a disability appeal tribunal (DAT) and referred the case back a new appeal tribunal for rehearing in decision CDLA/3383/1999. The claimant now appeals against the decision given on the rehearing, with the leave of a chairman. Directions were given by Mr Commissioner Pacey. Because part of the dispute in the present appeal is over the significance of some observations I made in CDLA/3383/1999, the case has been transferred to me.

3.	I need not go into all the background. The claimant had most recently been entitled to the higher rate of the mobility component of disability living allowance (DLA) and the lowest rate of the care component under a two-year award expiring on 23 February 1998. Her claim for renewal from 24 February 1998 was disallowed on both components after hospital factual reports were obtained and this was maintained on second-tier review on 16 April 1998. Her appeal was made on 25 June 1998, so that section 12(8)(b) of the Social Security Act 1998 (formerly paragraph 3(2) of Schedule 6) applied and changes of circumstances after 16 April 1998 could not be taken into account. Part of the evidence put forward on her behalf was a questionnaire completed by her GP.

4.	A DAT on 21 October 1998 directed that a report from an examining medical practitioner (EMP) should be obtained. The claimant was examined and the report produced, although it was neither signed nor dated. The DAT of 29 January 1999 dismissed the appeal. Its reasons for decision were for the most part careful and thorough, but in paragraph 13 of my decision in CDLA/3383/1999 I said that I had:

	"concluded that in the circumstances (including the factor that this was a renewal claim, where it is desirable to indicate why any different conclusions have been reached about entitlement) there was a failure of explanation that amounts to an error of law."

There were three elements to that: a failure to mention the GP's answers on the questionnaire; a failure to explain how the evidence supported a finding that the claimant could walk at least 100 metres before the onset of severe discomfort; and a failure to explain sufficiently why the claimant did not qualify for lower rate mobility component and lowest rate care component on the main meal test in the light of evidence of dizziness, falls and panic attacks.

5.	As part of that second element I drew attention to a defect in the question used at the time in a request from the DLA Unit for a hospital factual report:

	"How far can she USUALLY walk (approximate distance in metres) on level ground, whilst using appropriate aids? If the exact distance is not known could she walk about 100 metres most of the time?"

In the present case a senior house officer underline the "100" and answered "yes". I said in paragraph 16:

	"Most important, the question on the hospital factual report about walking ability made no reference to severe discomfort. An answer that a person can usually walk 100 metres is compatible with a situation where the second 50 metres, say, is done while suffering severe discomfort. It is very unsatisfactory that the standard question on these forms is not in terms of the statutory conditions to be applied. It means that the answer, if it just states a distance, cannot be accepted as an opinion that that distance can be achieved without severe discomfort."

I also drew attention to the content of the EMP's opinion on walking distance, where the question on the standard form does refer to the distance a claimant would be able to walk before the onset of severe discomfort (if any). The EMP had written that the claimant would be able to walk 75 metres on level ground before needing to stop due to pain in the knees and sit for a minute before continuing. I pointed out that it was wrong in law to apply an approach that discomfort can only be severe when it stops someone walking, and that the EMP had not dealt clearly with the effect of severe discomfort.

6.	The rehearing took place on 2 February 2001. It is recorded that the claimant's representative, Mr Giles Charter, a welfare rights officer for Rotherham Metropolitan Borough Council, indicated that he wished the appeal tribunal to look at the higher rate of the mobility component and the middle rate of the care component on either day-time or night-time needs. The appeal tribunal said nothing in its statement of reasons about the lower rate of the mobility component, although the claimant gave oral evidence of dizziness, balance problems and difficulties crossing roads safely, which would seem to be relevant to the conditions of entitlement to that rate. In the absence of Mr Charter's indication, I would have had no hesitation in saying that the omission to deal with the lower rate of the mobility component was an error of law. However, when such an indication is given by an experienced representative with an extensive knowledge of the case, and is not amended in the light of evidence given at the hearing, there is no error of law in the omission to deal with the lower rate of the mobility component.

7.	Therefore, I must look at the reasons given for the dismissal of the claimant's appeal on the other elements of DLA. In his written and oral submissions to the appeal tribunal, Mr Charter had submitted that the opinions on walking ability in the hospital factual report and the EMP's report should not be regarded as opinions that the distances stated could be achieved without severe discomfort. He also applied the approach I had taken as in paragraph 5 above to the standard questions on the EMP's report form about care needs, and in particular Part 7 where it is asked whether a person can safely carry out a number of activities without someone else's help or only with someone else's help. He submitted that, as the test of whether attention with bodily functions should count is whether it is reasonably required as a result of the claimant's disablement, answers in terms of whether a claimant can do something safely on her own should not be taken as answers that no attention was reasonably required to carry out that activity. As well as the documents which were before the DAT of 29 January 1999, Mr Charter also put forward questionnaires completed by the claimant's GP and by a district nurse in September 1999.

8.	The appeal tribunal said the following, having mentioned the relevant documents and set out in detail the claimant's oral evidence at the hearing:

	"The Tribunal considered this multitude of conflicting evidence and in considering all of the evidence and all of the points made by both Mr Charter and the Commissioner, they concluded that they preferred the evidence of the EMP and they did this because the EMP had conducted a very thorough examination using an examination which had been specifically designed for use with Disability Living Allowance. The Tribunal believed that the EMP had got the situation right when he indicated that the Appellant could walk for approximately 75 metres before having to stop due to severe discomfort. The EMP concedes that this would be slowly and with a limping gait. Nevertheless the Tribunal concluded that even if the Appellant had suffered severe discomfort before reaching the 75 metres mark then it is unlikely that she would have continued to walk whilst in severe discomfort for any appreciable distance and accordingly the Tribunal concluded that this would be unlikely to be less than 60 metres and even bearing in mind the slowness of the speed of walking and the gait, this would not qualify for an award of the higher rate of mobility.

	The Tribunal noted the evidence that the Appellant had given and noted Mr Charter's submission with regard to the care element of the claim. First of all the Tribunal did not accept the suggestion that the form completed by EMPs did not conform to the statutory requirements. These forms had been in use for many years and regardless of what was printed on the side of the box, both the EMPs and people receiving the reports were aware of the requirements and they were completed accordingly.

	The Tribunal preferred the evidence of the EMP for the reasons stated above. On the opposite side of the fence, there is always a natural tendency on behalf of the Appellant to give the worst case scenario and also people who had an Appellant as a patient would tend to be more sympathetic and less critical than an independent person conducting an independent medical examination.

	Whilst the Tribunal did accept that the Appellant had some problems with care, they did not believe that they amounted to a sufficient level to justify an award of any of the levels of the care component and the Tribunal accepted completely the evidence set out in the EMP's report for the reasons stated above."

9.	On the appeal to the Commissioner, Mr Charter submitted that the appeal tribunal had misunderstood his submission about the questions about care needs on the EMP's report. He was not saying that the questions or the form were invalid. He was saying that the answers could only be treated as answers to the questions printed and that adjudicating authorities should bear in mind any differences from the statutory conditions of entitlement. He submitted that in consequence the appeal tribunal had failed properly to ask itself the right questions on what attention with bodily functions was reasonably required. In the full submission on behalf of the Secretary of State, dated 19 October 2001, the appeal was not supported. It was submitted that the appeal tribunal had weighed all the evidence and given adequate reasons for preferring the EMP's report, resiling from an earlier submission to the contrary.

10.	I conclude that the appeal tribunal did err in law in the way submitted by Mr Charter. It seems to me after careful thought that, whether or not the appeal tribunal misunderstood Mr Charter's submission about the questions on the EMP report form, inadequate reasons were given for the rejection of the case put for the claimant on what was reasonably required. In the light of the claimant's evidence, that issue was not properly addressed. Moreover, it seems to me that the reasons given for the rejection of the evidence put forward for the claimant on both components were inadequate. In particular, the nature of the evidence from the claimant's GP was such that it could not properly be rejected by saying that all the evidence was considered and the EMP's report as preferred for the reasons given. Something more specific was needed about the GP's evidence in particular, given the in-depth and long-standing knowledge that GPs may have of their patients' conditions. Nor was it sufficient to reject such evidence on the generalised basis that those treating a patient would be more sympathetic and less critical than an independent EMP. It seems to me that, in the circumstances of the present case, some discussion of the content of the evidence was required. And some weighing up of the strengths and weaknesses of the crucial evidence on each side, instead of the identification only of the strengths on one side and the weaknesses on the other.

11.	Because of the conclusion in the previous paragraph, there has been no need to enquire into whether or not there was a breach of natural justice on the ground identified by the Tribunal of Commissioners in CSDLA/1019/1999 (apprehension of bias if the medical member of the appeal tribunal was or had recently been engaged in providing reports for the Benefits Agency).

12.	There is a further point. In paragraph 13 of CDLA/3383/1999 I mentioned the relevant factor that the case arose from a renewal claim. It would have been better if I had referred specifically to the decision in R(M) 1/96, where it was said that, unless the reason for a less favourable decision than under the previous award is obvious from an appeal tribunal's findings of fact, some explanation of the difference should be given, especially if the claimant has contended that her condition is the same or worse than at the time of the previous award. In my judgment, in the present case it was not obvious from the appeal tribunal's findings why a different result was reached and there was an error of law in failing to give any explanation of the relationship of the complete disallowance of the renewal claim to the previous award.

13.	For those reasons, the appeal tribunal's decision must be set aside as erroneous in point of law, although once again I have found the case very close to the borderline. I take no pleasure in requiring the case to be looked at for a third time at tribunal level. The claimant's appeal against the adjudication officer's decision of 16 April 1998 must be referred to an appeal tribunal for determination in accordance with the directions given below. No-one who was a member of the DAT of 29 January 1999 or of the appeal tribunal of 2 February 2001 is to be a member of the new appeal tribunal.

14.	 There is to be a complete rehearing of the claimant's appeal on the evidence presented and submissions made to the new appeal tribunal, which will not be bound in any way by any findings made or conclusions expressed by the DAT of 29 January 1999 or the appeal tribunal of 2 February 2001. All the rates of both components must be considered unless the claimant's representative indicates clearly that there is no contention that the conditions for some specific rate are met. The Secretary of State should supply information to the new appeal tribunal about any subsequent claims for DLA and their result. The new appeal tribunal should refer to the directions given in decision CDLA/3383/1999. Once again I give no directions of law on the conditions of entitlement to DLA. The well-established principles are to be applied. Nor do I give any directions on the weight to be given to any particular pieces of evidence, as the evaluation of all the evidence will be entirely a matter for the judgment of the members of the new appeal tribunal. However, the points made in paragraphs 9 and 10 above are to be borne in mind and, if the appeal tribunal's decision is adverse to the claimant, the requirements of R(M) 1/96 must be met in the giving of reasons.

15.	I repeat the warning that the claimant must not assume that, because she has been successful in two appeals to the Commissioner on a question of law, she will necessarily be successful before the new appeal tribunal. The decision on the facts in her case remains open.

	(Signed)   J Mesher    
	Commissioner

	Date:  1 February 2002