PLH                                                                         Commissioner's File:  CDLA 3188/02

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  		Disability Living Allowance
Appeal Tribunal: 	Edmonton
Tribunal Case Ref:  	U/42/152/2001/00089
Tribunal date:		5 March 2002
Reasons issued:		23 April 2002

1.	This claimant’s appeal, which is conceded by the Secretary of State, succeeds.  I set aside the decision of the Edmonton appeal tribunal sitting on 5 March 2002, that she was entitled only to the low rate care component of disability living allowance for the period from 18 May 2000 to 17 May 2003, and in accordance with section 14(8)(b) Social Security Act 1998 remit the case to a fresh tribunal for reconsideration and redetermination of all relevant issues on both mobility and care components on the claim she made on 18 May 2000.  
2.	The claimant is a lady now aged 34 who suffers from numerous medical problems but in particular from chronic asthma, which she has had from about the age of 18.  She has been on a large amount of medication for her different conditions, has become depressed, and generally finds difficulty in coping with her life so that she still relies to a considerable degree on her mother for encouragement and support.  Like many of the burgeoning number of chronic asthma sufferers in our inner cities she uses inhaled medication on a regular basis to try and keep the condition under control.  
3.	The medical and other evidence in the papers show that she is on steroid preparations, taken via an inhaler, and also has a home nebuliser which she uses frequently to take broncho-dilator drugs to relieve her breathlessness.  There is no doubt that she does have genuine and at times severe breathing problems, which interfere with her walking ability in particular.  A major issue on her appeal against the departmental refusal of her claim for disability living allowance was whether the evidence showed her walking ability to be so badly restricted by her breathing problems as to render her “virtually unable to walk” for the purposes of section 73 Social Security Contributions and Benefits Act 1992.  
4.	The tribunal dealt with this aspect of the case in their statement of reasons issued to the parties on 23 April 2002 at page 127A as follows:
“The tribunal sought to establish how [the various conditions to which they referred, but principally her asthma] firstly affected the appellant’s walking ability.  She was not unable to walk so the tribunal sought to establish whether she was virtually unable to walk.  In her claim pack the appellant put her walking distance as 80 metres in 10 minutes (page 18) tiredness making her stop.  The EMP on page 53 appears to have ticked the wrong box.  The second EMP put her distance down to 20 metres as at 2002.  So, reminding the appellant of what she said in her claim pack the appellant indicated that at that time she could walk across the railway track which was visible outside the tribunal window.  She indicated that she would carry her nebuliser and use it possibly twice over that distance (estimated at 150 yards).  She did not give any indication that her arthritis would affect her while she walked.  She did indicate that she could do that on a good day.  Out of the 7 days of the week she had 2 to 3 bad days.  On this basis the tribunal did not award higher rate mobility.”
5.	It is conceded by the Secretary of State in the written submission at pages 153 to 154 that the findings and reasoning of the tribunal embodied in that paragraph are not sufficient to provide a clear determination and explanation of what the tribunal themselves considered to be the claimant’s walking ability without severe discomfort for the purposes of section 73.  In particular it does not show how they took account, as required by regulation 12, Disability Living Allowance Regulations 1991 SI No 2890, of the limitations as regards distance, speed, length of time and the manner in which she is able to make progress on foot in view of her asthma, which were apparent from the evidence before them and not, I think, substantially disputed in any of the medical reports.  Although of course the assessment of an individual’s walking ability and the determination of whether taking all relevant factors into account this is so severely limited as to satisfy the statutory condition of “virtual inability to walk” are matters of fact and degree to be determined by the tribunal on the evidence in each case, and I am not saying it is an error of law to omit mention of every single piece of evidence tending either for or against the tribunal’s overall conclusion, it is I think it right in this case to accept the Secretary of State’s concession that the tribunal’s stated reasoning fell short of the high standards normally to be expected.  
6.	In particular, the most recent departmental medical examination report had itself assessed the limit of the claimant’s walking ability before the onset of severe discomfort at only 20 metres and even that at a slow pace, with the present level of her disability due to her asthma dating from 1998: page 95 to 120.  Some further explanation was I think due of the reasons the tribunal did not find this assessment (made in 2001, not “as at 2002” as they said) satisfactory as evidence of the claimant having met the statutory test at the relevant time in 2000.  Admittedly the doctor recorded that the claimant could walk again after stopping and having a rest; but this, and the nature of what she actually had to stop and do with the nebuliser, how long this would take, and the overall impact of it all on her practical walking ability, did in my judgment require to be more specifically addressed and explored to show how the tribunal’s stated conclusion that she did not meet the test for higher rate mobility was consistent with it.  
7.	The consequence in my judgment is that the tribunal’s decision has to be set aside and the case remitted to a fresh tribunal for reconsideration.  It is not therefore necessary for me to consider the further criticisms of other aspects of the tribunal’s decision and reasoning, made in the notice of appeal on behalf of the claimant by her representative.  The overall effect of all the conditions from which she was suffering, as at the date of the relevant decision under appeal which was 29 August 2000, and the practical limitations they placed on her ability to cope unaided with the relevant activities for both care and mobility components, will fall to be considered afresh by the new tribunal on the basis of the evidence presented to it at the rehearing.  
8.	The only special direction I need to give about this relates to the claimant’s use of her nebuliser equipment, referred to at various points in the medical reports and mentioned in the passage already quoted from the previous tribunal’s decision.  On the claimant’s behalf it is argued in the notice of appeal that “getting out of breath to such an extent that one has to stop and use a nebuliser should be regarded as severe discomfort”: which if accepted as it stands, would mean that this claimant would automatically have been entitled to the higher rate of mobility component on the existing evidence and the tribunal’s findings.  The Secretary of State’s submission is less definitive on this topic than it might have been, saying merely that “if her breathing has deteriorated to an extent where a nebuliser, or an inhaler, is needed before she is able to continue, then there is an argument that she is in discomfort”; which rather begs the real question of whether discomfort that can be avoided by the use of medication in that way is relevant to be taken into account in this context at all.  
9.	Surprisingly, there seems to be no authority directly in point on the extent to which account should or should not be taken of medication a person uses to extend or maintain their walking ability, as distinct from a physical prothesis or artificial aid where reg 12(4) of the Disability Living Allowance regulations cited above expressly dictates how it is to be taken into account.  In my judgment, a reasonable and practical assessment of such questions has to be made by the tribunal in determining the extent of a claimant’s ability to walk without severe discomfort for the purposes of section 73; in a somewhat similar way to attention and supervision needs for the care component under section 72, where the word “requires” has long been understood as meaning “reasonably requires”.  Approaching the matter in that way, what the tribunal have to assess is the extent of the claimant’s walking ability taking account of any medication she normally and reasonably uses to alleviate the effects of her breathing difficulties and thus to reduce, avoid or postpone the onset of discomfort.  In the present case, that will involve enquiring a little further into which of her various medical preparations the claimant actually needs and is able to use to provide herself with on-the-spot relief for her breathing difficulties when out walking: since although a small inhaler of the normal type can readily be carried in a pocket or handbag, a “nebuliser” is as I understand it a rather bulkier piece of equipment, and if it really is one of those that she has to take with her when out for a walk, the weight and practicability of this over any real distance will be relevant to the overall assessment.
10.	The appeal is allowed and the case referred to a fresh tribunal for redetermination accordingly.  

(Signed)
P L Howell
Commissioner
30 January 2003