DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner’s Case No:  CDLA/4329/2001

1.	My decision is that the decision of the tribunal given on 30 July 2001 is erroneous in point of law.  I set aside the decision of the tribunal and, since I cannot give the decision which the tribunal ought to have given without making fresh or further findings of fact and I do not consider it expedient to make such findings, I refer the case for determination by a differently constituted tribunal. 

2.	This appeal arises out of a claim for disability living allowance made on 24 April 1999.  The claimant asserted a number of disabilities, of which the most important for the purposes of this appeal was chronic fatigue syndrome.  The claimant was examined by a visiting medical examiner on 29 September 1999, who assessed her as being able to walk 200 metres before the onset of severe discomfort, at normal to slow pace and taking 5 to 6 minutes to walk that distance.  On the basis of the visiting medical examiner’s  report, the claim for both mobility and care components of disability living allowance was rejected on 15 October 1999 and, although the claimant provided further information in support of her claim in a letter received on 31 January 2000, the decision refusing benefit was confirmed on reconsideration on 12 February 2000.

3.	The claimant appealed against the decision on 7 March 2000, and after an adjournment of the hearing to enable the visiting medical officer’s report to be typed up, the appeal was eventually heard on 30 July 2001.  In addition to a further letter from the claimant, received on 5 July 2002, the tribunal had before it a submission setting out the basis of the claim for mobility component prepared by the claimant’s representative.  It appears from the Record of  Proceedings that only mobility component was in issue in the appeal.

4.	The tribunal, in its statement of reasons, noted the visiting medical officer’s opinion that the overall factors in the claimant’s were almost entirely non-organic, and stated that they did not accept that there was any physical reason which prevented the claimant from walking.  After rejecting other aspects of the claimant’s evidence, they continued:

“It cannot be the case that just because someone has or has had ME that the ME of itself is a physical disablement which means that a person cannot walk.  The ME must be linked with some resultant disability which gives rise to a person being virtually unable to walk.  As far as the Tribunal is aware there is nothing to suggest that ME gives rise to mental problems which result in an inability to carry out physical activities.

It was with regret that the Tribunal concluded that they just do not believe (the claimant’s) descriptions of her perceived disabilities.  They did not find her to be a credible witness.  The whole tone of the written and verbal evidence seemed to them to be trying to establish physical problems which she thought she should have rather than those which in fact existed.  They felt that it was quite unsafe to come to a decision on her suggested limitations without very clear and conclusive medical evidence.”

5.	The claimant appealed, essentially on the ground that the tribunal’s assessment of her was unfair.  I gave leave to appeal on 29 November 2001 because I considered that it was not clear from the tribunal’s decision whether they accepted that the claimant did have ME, and because I also considered it to be arguable that the tribunal misdirected themselves in saying that ME must be linked with some resultant disability which gives rise to a virtual inability to walk.  The Secretary of State’s representative supported the appeal in a submission dated 2 January 2002, although I am afraid that it is not clear to me which of the grounds of appeal the Secretary of State supports.

6.	I have, nevertheless, come to the conclusion that the decision of the tribunal was erroneous in point of law.  Although the tribunal clearly regarded the claimant’s evidence as exaggerated, they did not make any explicit finding with regard to her actual walking ability.  The tribunal also dealt with the need for the claimant to show that she was physically disabled in order to establish entitlement to higher rate mobility component, but I do not agree that it was necessary for her to show that chronic fatigue syndrome was either caused by or resulted in some other physical disablement.  A diagnosis of chronic fatigue syndrome is made on the basis of the existence of symptoms which cannot be explained by other causes, and it is for that reason that a physical explanation for inability to walk is actually inconsistent with the existence of the condition.

7.	I therefore allow the appeal, and since I cannot make the findings which are necessary to determine the claimant’s entitlement to benefit, I refer the case for re-hearing before a differently constituted tribunal.

8.	The first task for the new tribunal will be to establish the claimant’s actual walking ability, on the basis of their findings of fact on the matters to be considered under regulation 12(1) of the Social Security (Disability Living Allowance) Regulations 1991, but ignoring any limitations on the claimant’s walking ability which the tribunal consider to be unnecessarily self-imposed.  Since chronic fatigue syndrome is frequently a variable condition, the tribunal may have to consider the claimant’s walking ability on “good” days and “bad” days, in order to arrive at an assessment of her walking ability most of the time.  If the tribunal decide that the claimant is virtually unable to walk, they will then have to consider whether that inability results from physical disablement.  Chronic fatigue syndrome is now accepted as having both physical and mental causes, so that the tribunal will be entitled to find that any inability to walk does result from physical disablement in the claimant’s case if they accept the diagnosis of chronic fatigue syndrome and are satisfied that it is that condition which limits her walking ability.  However, the claimant in this case has a history of psychiatric conditions, and it will therefore be relevant for the tribunal to consider whether it is any of those conditions which limit her ability to walk.

9.	I have dealt only with chronic fatigue syndrome in this decision, but the tribunal will of course have to take into account all relevant medical conditions in deciding whether the claimant is entitled to benefit.  The tribunal should also consider the consultant physician’s report of 28 December 2000, obtained since the last tribunal hearing, although of course only in so far as it is relevant to the claimant’s condition down to the date of the decision appealed against.

(Signed)	E A L Bano
		Commissioner

		16 May 2002