THE SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case No: CIB/4331/2001

SOCIAL SECURITY ACTS 1992-1998

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

DECISION OF THE SOCIAL SECURITY COMMISSIONER

COMMISSIONER:	Mr C. Turnbull

         
1.	This is an appeal by the Claimant, brought with my leave, against a decision of the Liverpool Appeal Tribunal made on 22 May 2001. For the reasons set out below that decision was in my judgment erroneous in law. I allow the appeal, set aside the Tribunal’s decision and remit the matter for redetermination by a tribunal to be composed of persons none of whom was a member of the Tribunal.

2.	The Claimant is a man now aged 50 who suffers or claims to suffer from angina, asthma, migraines and back pain. 

3.	The Tribunal’s decision was to dismiss the Claimant’s appeal against a decision made on 13 April 2000 that the Claimant was from that date no longer entitled to incapacity credits because he was not incapable of work under the all work test. 

4.	The short ground on which I have decided that the Tribunal erred in law was in not requiring that the visiting doctor’s report which was prepared for the purposes of the Claimant’s claim to disability living allowance, and on the basis of which he was apparently in about September 2000 awarded the higher rate of the mobility component, be put before it. I need set out the relevant events only in so far as relevant to that ground.

5.	In the Claimant’s IB50 questionnaire, completed in February 2000, he stated that he could not walk more than 50 metres without stopping or feeling severe discomfort. That would have been worth 15 points. He also indicated that he “tended to take his time” with rising from a chair and bending and kneeling, but ticked the boxes that he had no problem with those activities. He stated that he tended to stay away from stairs because he tended to get breathless. In relation to all other activities he ticked the box indicating that he had no problem. 

6.	On 3 April 2000 the doctor who examined the Claimant for the purposes of the all work test recorded the Claimant’s description of his abilities as including the following:

“Shops on foot, 30 minutes from flats, carries shopping home. Visits cousin 30-40 minutes walk away. May go to pub locally. Goes out to draw watercolours, uses public transport (trains and buses). Uses bicycle for exercises infrequently, goes to Crosby to paint watercolours. Stopped when back bad at Xmas. ………. Avoids stairs as would be breathless doing it…….. Keeps bicycle at cousin’s house.”

7.	The examining doctor recorded the Claimant as having normal leg joints, muscles and reflexes, and heavily calloused feet. He expressed the view that the Claimant had no walking problem (and so could walk at least 800 metres without stopping or severe discomfort). He commented (inter alia) as follows:

“Client stands to wash, dress, shop, use public transport. Walks 30 mins to shops, or to cousin’s house where he keeps mountain bike.

Stood normally. Walked with pronounced right limp, carrying large shoulder bag.

Active lifestyle using [illegible] spray if gets angina.”

8.	On 13 April 2000 a decision was made that the Claimant scored no points under the all work test. 

9.	On 15 September 2000 the first hearing of the Claimant’s appeal was adjourned so that the Claimant could obtain a further report from his GP (which was not in the event ever obtained). The claimant is recorded as having given evidence that:

“I get breathless with excessive walking e.g. too far – I can manage to the local shops about 15 minutes away – about 250 yards. I have been at the hospital [?] 12 months ago. I had a treadmill test for 5/10 minutes before I stopped. I walk to my cousins’ 500/600 yards away. I don’t use my bicycle any more.”

10.	In a letter to the Appeals Service dated 13 October 2000 the Claimant’s solicitors stated that the Claimant had asked them to inform the Tribunal that he had been awarded the higher rate of the mobility component of disability living allowance on a claim which had been pending since April 2000. The solicitors appear first to have come on the scene at about that stage. Those solicitors employ two persons described on the notepaper as “welfare rights/debt advisors”. 

11.	In a letter dated 21 May 2001 the Claimant’s solicitors stated that they would not be representing him at the resumed hearing on 27 May 2001, but they enclosed a written submission. That referred again to the award of the higher rate of the mobility component, but did not further place reliance on it.

12.	At the hearing the Claimant gave evidence that much of what he had said to the examining doctor about his walking ability had been wrongly recorded. The Tribunal did not accept that that had been the case. It rejected the Claimant’s evidence as unreliable on that and other grounds, and stated that it relied on the findings of the examining doctor as showing that the Claimant did not score points under any of the activities comprised in the all work test. It stated that it accepted that the Claimant had been awarded the higher rate of the mobility component of disability living allowance and that it had taken that into account in considering the Claimant’s walking ability. Its reasons do not indicate that it considered calling for the visiting doctor’s DLA report. In the record of proceedings (p.61) the following appears: “doctor came to flat in connection with HR mobility – September 2000.”

13.	The decision which was apparently made on the disability living allowance claim must have been that the Claimant was virtually unable to walk, and (as the record of proceedings appears to confirm) would have been made after examination by a visiting doctor for the purpose of that claim. That decision appears wholly inconsistent with the Claimant’s answers as recorded by the all work test doctor, and with that doctor’s opinion and the Tribunal’s decision that the Claimant could walk at least 800 metres without stopping or severe discomfort. There was no real evidence of a dramatic deterioration in the Claimant’s condition such as might have accounted for the apparent inconsistency. I do not think that the Tribunal was in a position fairly to decide the appeal before it without ensuring that the evidence used for the disability living allowance decision, and in particular the visiting doctor’s report, was put before it.

14.	I have had considerable hesitation in allowing the appeal on this ground, for a number of reasons. First, the Claimant’s solicitors did not ask for the DLA visiting doctor’s report to be placed before the Tribunal. This may have been a deliberate decision, possibly for tactical reasons related to concerns about the DLA award eventually being prejudiced Secondly, the grounds of appeal to me, which were prepared by the Claimant’s solicitors, did not take this point, perhaps for the same reasons. Thirdly, if the DLA visiting doctor’s opinion was based on answers by the Claimant radically different from those which he gave to the all work test doctor, it may well be that the Tribunal would simply have rejected the DLA visiting doctor’s opinion in any event. However, I have in the end been swayed by the point that it seems to me that the DLA visiting doctor’s opinion was such potentially important evidence, and was so readily available, that it should have been called for. The Secretary of State does not support the appeal. His representative has submitted that the medical examinations in respect of incapacity benefit and disability living allowance are conducted separately and the information recorded in each medical examination is not passed on to the other decision maker. No doubt that is generally the position. But the question is whether the Tribunal, in the particular circumstances of this case, ought to have called for the DLA report. I think that the only course which it could reasonably have adopted was to do so.

                    (Signed)                                           Charles Turnbull
                                                                             (Commissioner)

                    (Date)                                              21 February 2002