CDLA/1832/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal to a limited extent.  I set aside the decision of the Swansea appeal tribunal dated 14 January 2002 and I substitute a decision that the claimant is entitled to the lowest rate of the care component of disability living allowance for an indefinite period from 3 May 2001.

REASONS

2.	It is common ground before me that the decision of the appeal tribunal is erroneous in point of law because a submission and, more importantly, further medical evidence submitted on the claimant’s behalf by fax was not placed before the tribunal.  The consequence was that the tribunal, before whom the claimant did not appear and was not represented, did not hear the whole of the claimant’s case.  There was an inadvertent breach of the rules of natural justice and I set the tribunal’s decision aside on that ground.

3.	When I granted leave to appeal, I said that, as no-one had attended the last hearing before a tribunal, the Commissioner would be likely to wish to give his or her own decision unless the claimant’s representative indicated that the claimant or she would attend a hearing before another tribunal.  Despite that indication, the Secretary of State’s representative, after supporting the appeal insofar as she agrees that the tribunal’s decision should be set aside, has made no submission on the facts of the case.  All she has said is:

“2.	I submit that further findings of fact are necessary in order to determine this case correctly.  The facts to be found are whether the evidence from the claimant’s General Practitioner (112) dated 16/12/01 is to be preferred to that from the EMP and, if so, is it supportive of an award of either component of Disability Living Allowance at any rate.

“3.	I therefore request that the Commissioner set aside the tribunal’s decision and remit the case to a new tribunal with appropriate directions for its determination.”

A Commissioner has the power, under section 14(8)(a)(ii) of the Social Security Act 1998, to make findings of fact if he or she has set aside a tribunal’s decision as being erroneous in point of law.  I accept that the Secretary of State’s representative did not know whether or not the claimant would seek an oral hearing before a tribunal but it would still have been helpful to have had the Secretary of State’s view on the medical report of 16 December 2001 because that was the evidence that was not placed before the last tribunal and it is evidence upon which the Secretary of State had not previously had the chance to comment.  If the claimant had wished to have a hearing before the tribunal and the Commissioner had acceded to that wish, the submission made to the Commissioner would have been of value to the tribunal.  As it is, the Secretary of State accurately identified the issues without providing any suggestion as to how the questions might be answered.  (It might have been better if “The facts to be found” had read “The questions to be considered”, but the gist was clear enough.)  The claimant’s representative has now made it plain that the claimant does not want an oral hearing and would not attend one if I referred the case to another tribunal.  A claimant with a good case may be at a disadvantage in not attending an oral hearing but I take this claimant to have made a rational decision in the light of advice from his representative.  I will therefore determine the case on the papers, despite the lack of any submission from the Secretary of State on the facts. 

4.	As I stand in the shoes of the tribunal, I cannot take account of any change of circumstances that may have taken place since 30 July 2001, when the Secretary of State made his decision.  There is no evidence of any significant change in the claimant’s condition during 2001 and so I give this decision on the basis that the evidence dated 16 December 2001 and the earlier diagnosis of angina reflect the doctor’s view of the claimant’ condition as it was from at least three months before the date treated as the date of claim.

5.	The first piece of evidence is the claimant’s claim form, dated 4 June 2001, in which he says that he could walk only 30-40 yards without suffering severe discomfort, that he was very unsteady on his feet, suffered immense pain in his right arm that spread across his chest and was frightening, that he had blurred vision and poor hearing, that he sometimes fell or stumbled and that he needed help with moving about indoors, getting in and out of bed, when he was in bed, getting to the toilet, when showering, getting dressed or undressed, preparing a cooked main meal, with encouragement to eat or drink, with communicating with other people, using the telephone and dealing with financial and similar correspondence and that he also needed someone to keep an eye on him to avoid risk of injury.  His doctor provided a brief statement, dated 9 June 2001, diagnosing carotid artery stenosis and something that looks like “COVD” – that appears to have been understood by the tribunal to be chronic obstructive airways disease but which might be chronic peripheral vascular disease – and stating that the claimant had problems with balance and was breathless on exertion.

6.	The claimant was then visited by an examining medical practitioner who recorded a history that was, at first sight, at variance with what the claimant had written on the claim form.  He said he could walk only 50 to 60 yards to his garage before he became very breathless, that he sometimes used a bus to go to hospital, although he was sometimes taken by car, that he could get himself out of bed and dressed slowly, that he could walk around his house but found the stairs difficult because of his breathlessness, that he did not fall although he sometimes missed a step and stumbled, that he could wash and shave himself although he sometimes cut himself, that he could manage on the toilet and could shower himself as long as he used the handles to get in and out of the bath and had his wife watching over him in case he fell, that his wife did all the cooking and he did not peel vegetables, that he could get into bed himself at night, that he did not have blackouts, that he had no problems when in bed but his wife changed his sheets, that he got himself to the toilet two or three times each night and his wife watched him occasionally because of giddiness and that he had no problems with communication.  The examining medical practitioner observed the claimant going upstairs to be examined and noted that he was not breathless at the top and that he got on and off his bed himself and undressed and dressed himself unaided.  He also recorded:

“His heart was normal.  B.P. 150/80 mmHg.  He had scattered wheezes and crackles at his lung bases (i.e., consistent with chronic lung disease).

“He could bend and touch his toes and could crouch and stand up again.

“His cervical spinal movements were full and normal.

“His upper and lower limbs were of normal power, tone, bulk and reflexes – he didn’t have any muscle wasting.

“He had hard and roughened skin on the palms of his hands and his finger nails were engrained with grime – consistent with fairly active physical activity of his hands – particularly his right.

“The soles of his feet had hard skin and callosities on them – inconsistent with his stated amount of immobility.”

The examining medical practitioner also recorded that the claimant’s visual acuity was 6/60 or better, that he would be able to hear a shout at one metre in a busy street, that he had full limb fiunction, that he took cocodamol, asprin (to keep his blood thin) and voltarol (an anti-inflammatory drug), that he could walk at least 800 – 1,000 metres before the onset of discomfort “judging from the appearances of the soles of his feet and lack of muscle wasting” at a normal to slow pace, possibly stopping once for 40-60 seconds to catch his breath, that he was able safely to perform all the functions listed in Part 7, question 1 on form DLA 140 and that he had no requirements for attention or supervision.

7.	In the light of that report, the Secretary of State disallowed the claim.  The claimant appealed.  His wife had, meanwhile, said that the claimant had been diagnosed as suffering from angina.  She wrote a further letter, dated 5 January 2002, in support of her husband’s appeal.  In it, she mentioned that he was being treated for tennis elbow.  She also stated that he could not lift a pan off the stove nor a kettle, that the examining medical practitioner had visited on “not a bad day for my husband”, that she had to go into the bathroom with him because he had to step into the bath for a shower, that he was in such pain that “some days [he] can’t get up the garden to the shed because his chest hurts” and, in a postscript, that he had a “spray”.  In the document dated 16 December 2001 that the tribunal did not see, the claimant’s general practitioner stated that the claimant suffered from ischaemic heart disease and peripheral vascular disease and “based on my medical opinion and knowledge of this patient” the distance he could walk without severe discomfort was less than 50 yards.  He also stated that the claimant needed help to get out of bed, to get dressed and undressed, to get washed, bathed and showered, to move around the home, to prepare a cooked main meal for himself, that he suffered from dizzy spells and retinal vein occlusion and that he did not have falls but was at risk of falls but did not require supervision and guidance to avoid substantial danger to himself.  No further evidence has been placed before me but I do have the advantage of two submissions made by the claimant’s representative.

8.	The claimant’s representative mounts a frontal attack on the examining medical practitioner’s report, arguing that there are two obvious inaccuracies in it and that they show the whole report to be unreliable.  The first is that the examining medical practitioner twice refers to the claimant having been diagnosed as suffering from asbestosis 6 to 8 months before his visit.  It is said, and I accept, that the claimant had in fact been suffering from the condition for many years and had received a compensation payment some five years before the visit.  On that basis, it is plain that the examining medical practitioner made a mistake.  However, that does not seem to me to throw substantial doubt on the accuracy of the rest of the report.  The examining medical practitioner was relying on the claimant for information about his condition and it seems probable that there was a simple misunderstanding, either when the claimant said, or meant to say, that he had been diagnosed as suffering from asbestosis 6 to 8 years before the visit or when he said his condition had got worse 6 to 8 months before the visit and attributed that to the asbestosis without making clear that the original diagnosis had been long before then.  I do not see why such a misunderstanding should necessarily imply that the examining medical practitioner’s other recording of the claimant’s statements should be regarded as inaccurate and even less does it imply that his observations are inaccurate.

9.	The second point made by the claimant’s representative is that the examining medical practitioner recorded the claimant’s visual acuity as 6/60 or better whereas his vision is blurred, particularly in one eye.  This seems to me to show a misunderstanding on the representative’s part.  Visual acuity of less than 6/60 would be regarded as severe disablement attracting an assessment of 100% so as to enable a claimant to be treated as blind for the purposes of a claim for the mobility component of disability living allowance under section 73(2)(a) of the Social Security Contributions and Benefits Act 1992 and regulation 12(2)(a) of the Social Security (Disability Living Allowance) Regulations 1991, which is no doubt why the question is asked in the way it is in the questionnaire completed by examining medical practitioners.  There is no evidence that the claimant’s eyesight is that bad.

10.	What seems to me to require the examining medical practitioner’s report to be treated with some care is that he seems to have been unaware of the claimant’s heart disease.  The claimant seems to have attributed his breathlessness to asbestosis and he did not mention heart or vascular disease to the examining medical practitioner, although he did refer to pain in his arm.  However, the claimant’s general practitioner did not regard asbestosis as a condition of sufficient seriousness to be mentioned in his reports and asbestosis can be present for a long time without causing serious disablement.  The claimant’s general practitioner plainly attributed breathlessness and loss of mobility to heart and vascular disease and I note that the claimant was under the care of a consultant in respect of those conditions.  The examining medical practitioner’s ignorance of the claimant’s medical history does not cause me to doubt his observations but it does cause me to put less weight on the conclusions that he drew from the observations than I might otherwise have done.

11.	This is particularly relevant in relation to the mobility component of disability living allowance.  There is a clear conflict of evidence as to the distance the claimant could walk without severe discomfort.  The examining medical practitioner said up to 1,000 metres, albeit with, perhaps, one short stop.  The claimant’s general practitioner said less than 50 metres.  The examining medical practitioner’s opinion was based on his observation of the claimant during his visit and, in particular, his deduction from the state of the claimant’s feet.  It is unclear on what basis the examining medical practitioner gave his opinion but, even if he had not observed the claimant walking himself, it seems to me that he must be taken to have had some idea of his patient’s exercise tolerance, even if it was largely based on what the claimant has himself said.  The fact that the claimant has been referred to a consultant is some indication that he took his patient seriously and I presume that his opinion was partly based on feedback from the consultant.

12.	On balance, I do not entirely accept the examining medical officer’s opinion.  I accept his observation that the claimant was not breathless after going upstairs and I have no doubt that the claimant could walk more than 50 yards without severe discomfort on some occasions, as he told the examining medical practitioner.  However, as the examining medical practitioner’s opinion was given without knowledge of the claimant’s medical conditions, I do not consider I should rely on it against the general practitioner’s opinion and I therefore find that the claimant could not generally walk more than 50 yards without having to stop due to pain.  However, that is not an end of the matter because, although 50 yards is often taken as a benchmark when considering whether or not a person is virtually unable to walk, there are other considerations that must be taken into account by virtue of regulation 12(1)(a) of the 1991 Regulations.  There is no evidence of there being anything abnormal about the manner of the claimant’s walking.  The other critera are speed, and the length of time for which the claimant can walk.  I and at least one other Commissioner have observed that, as speed is a function of distance and time, listing all three criteria suggests that regard must be had not only to the extent to which a claimant can walk without stopping but also the extent to which a claimant may walk with stops.  A person who can walk 400 yards in eight minutes by walking fairly briskly but stopping for four one-minute breaks may be thought to be no less able to walk than a person who can walk the same distance in the same length of time by proceeding at a slow pace but without stopping.  

13.	In the present case, I see no reason not to accept the examining medical practitioner’s observations that there was a lack of muscle wasting and that the claimant had hard skin and callosities on the soles of his feet.  I am also not satisfied that there is any adequate reason for me not to accept his judgment that his observations showed a substantial amount of walking.  I acknowledge that some walking will have been indoors but the examining medical practitioner plainly took the view that his observations indicated substantial walking outdoors as well.  It seems to me that that judgment can be reconciled with the general practitioner’s evidence – and, indeed, much, if not all, of the claimant’s evidence – on the basis that the claimant did suffer severe discomfort if he walked more than 50 yards but that he could limit the discomfort by stopping and then starting again.  That is not an unfamiliar scenario and it is what I find to have been the position in the present case.  I regard “severe” discomfort as discomfort that it is not reasonable to expect a claimant to endure on a day-to-day basis.  I accept that my finding that the claimant had to stop frequently implies that he suffered some discomfort but it seems to me that the examining medical practitioner’s observations imply that he did in fact choose to endure that level of discomfort.  That a person chooses to perform functions does not necessarily mean that it is reasonable to expect him or her to do so but a person can usually be presumed to be acting reasonably in the absence of any evidence to the contrary.  On the evidence before me I am satisfied that the claimant could walk considerably further than 50 yards, provided that he stopped from time to time, and I am not satisfied that the claimant generally suffered severe discomfort when walking.  I cannot put figures on the length of time for which the claimant stopped or his overall speed but the examining medical practitioner’s observations suggest that the stops were not for such a long time as to discourage the claimant from walking to a substantial extent.  I am not satisfied that the claimant was virtually unable to walk.  There is no other ground upon which the claimant might be entitled to the higher rate of the mobility component.

14.	I am not satisfied that he is entitled to the lower rate of the mobility component either.  Such risk of falls as there was seems to have been too slight to justify supervision whenever he was walking and there is no other ground upon which he might be entitled to the lower rate of the mobility component.

15.	Turning to the care component, the evidence as to the claimant’s requirements for attention in connection with his bodily functions is not entirely consistent but the differences are not as great as they seem at first sight because many of the claimant’s complaints amount to him saying that he has difficulty with performing functions rather than saying that he cannot perform them at all.  Obviously, as the claimant’s representative submits, there can be circumstances where a person has so much difficulty performing a function unaided that it is not reasonable to expect him to do it without assistance or at all and in those circumstances the claimant reasonably requires attention in connection with that function.  However, no specific challenge has been made to the examining medical practitioner’s record of what the claimant said to him in answer to questions focussing on what the claimant was able to do, albeit with some difficulty in some instances and all that has been said in the submission is that the claimant had to move slowly and carefully with appropriate stops.  I accept the examining medical practitioner’s record of what the claimant said to him and I accept what was said as accurately reflecting the claimant’s abilities.  I do not doubt that the claimant did take longer than most other people to perform many functions but I am not persuaded that the extent of his difficulties was such that he reasonably required assistance.  The claimant’s general practitioner is unlikely to have had direct experience of the claimant’s ability to carry out the activities he mentioned and, where his opinion is directly contradicted by what the claimant told the examining medical practitioner, I prefer the claimant’s account.  Even in relation to getting in and out of the bath to use the shower, the claimant appears to have required temporary supervision rather than active assistance amounting to attention.  He may have needed some assistance with correspondence but that was minimal.  I am not satisfied that he reasonably required attention in connection with his bodily functions for a significant portion of the day or frequently throughout the day.

16.	The claimant’s own general practitioner considered that the risk of falling was not such as to require continual supervision to avoid substantial danger and I see no other basis upon which such continual supervision throughout the day could be said reasonably to have been required.

17.	When the claimant got up at night, his wife may have kept an eye on him but I am not satisfied that he reasonably required attention or watching over.  I can see no reason why he should not have been able to find a light switch, by touch if necessary, and I am not satisfied that he was at significantly greater risk of falling at night than during the day.

18.	That leaves the question whether he was able to prepare a cooked main meal for himself.  The examining medical practitioner did not deal with this issue in detail, recording that the claimant said he did not cook and ticking boxes indicating that the claimant could safely chop and peel vegetables, use taps, use a cooker and cope with hot pans.  The claimant said his hands shook which made it dangerous to chop or peel vegetables and to handle saucepans and that he had even stopped making himself hot drinks because he had scalded himself.  He also referred to the difficulties created by his poor memory and lack of concentration and unsteadiness on his feet and argued that the cumulative effect was that he could not reasonably be expected to prepare a main meal for himself.  His general practitioner also said that he required assistance with preparing a cooked main meal for himself.  On balance, and with some hesitation, I am prepared to accept the claimant’s case on this issue, which does not seem to me sufficiently to be contradicted by a reasoned opinion of the examining medical practitioner.

19.	It seems unlikely that there will be an improvement in the claimant’s condition and I therefore make an indefinite award of the lowest rate of the care component.  It is, of course, open to the claimant to apply for supersession of my decision should his condition have deteriorated since 30 July 2001.

	(Signed)	MARK ROWLAND
		Commissioner
		2 May 2003