File no:  CDLA 5214 2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal. The appellant is appealing with my permission against the decision of the Stratford appeal tribunal on 3 September 2001 that the appellant is not entitled to either component of disability living allowance from and including 5. 1. 2001.

2	For the reasons below, the decision of the tribunal is erroneous in law. I set it aside.  I refer the appeal to a differently constituted tribunal for determination in accordance with the directions given in this decision (Social Security Act 1998, section 14(8)(b) and (9)). 

3	I deal with the reasons for my decision briefly, with the consent of both parties. The parties have agreed that I set aside the tribunal decision solely on the grounds identified in granting permission to appeal. I now do so. In granting permission to appeal, I gave as my reasons that the tribunal had listed all the evidence before it but not made clear findings. The evidence on which the tribunal appears to have relied was that of the examining medical practitioner, whose opinion was that the appellant could walk 100 yards in  “5 – 10 mins”. The representative was right to draw attention to the vagueness of this opinion. It is also not clear how the tribunal reconciled the view it took that the appellant needed support when walking with the contradictory opinion of the examining medical practitioner.

4	I direct the new tribunal to which this appeal is referred as follows. The tribunal should reconsider its decision on all the evidence before it. This is a new claim, so the burden of proof of entitlement is on the appellant.  In so far as it is deciding the appeal on the present evidence, it should note the submission of the representative about speed of walking. The representative cites several decisions of Commissioners that are submitted, together with a mathematical analysis, to show a sort of “minimum speed limit”.  I do not think there is any such test in Commissioners’ decisions, and I can find none in any reported decision.  The question is one of fact: taking into account all the factors including speed, can the appellant “make progress on foot without severe discomfort”. It is certainly arguable that moving at a speed of 100 yards in ten minutes (which equates to 30 feet a minute or putting one foot in front of the other without a forward space between them every two seconds) is not “making progress” in any meaningful sense. But it is a matter of fact, not law, to be judged against the statutory test in regulation 12(1)(a) of the Social Security (Disability Living Allowance) regulations.

5	The appellant did not ask for an oral hearing of the appeal. Instead, she attached a letter to her reply. I cannot find that letter in the case papers. But in any event, the appellant is strongly advised to ask for, and attend, an oral hearing on the rehearing of her case. If because of her disability she needs a taxi to get her to the nearest tribunal location, she should get medical confirmation of this, and ask for her taxi fare. 
								David Williams
								Commissioner
								07 March 2002