PLH                                                                               Rhif ffeil/ File No: CDLA 4225/02

DEDDFAU NAWDD CYMDEITHASOL 1992-1998
SOCIAL SECURITY ACTS 1992-1998

APÈL YN ERBYN DYFARNIAD TRIBIWNLYS APÈL 
YNGHYLCH CWESTIWN CYFREITHIOL
APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DYFARNIAD Y COMISIYNYDD NAWDD CYMDEITHASOL
DECISION OF THE SOCIAL SECURITY COMMISSIONER

Cais am/Claim for:		Disability Living Allowance
Tribiwnlys/Tribunal:		Cardiff 
Rhif achos/Tribunal case ref:	U/03/188/2002/02197
Dyddiad/Tribunal date:	31 May 2002
Rhesymau/Reasons issued:	28 August 2002

[GWRANDAWIAD/ ORAL HEARING]

1.	In this appeal by the claimant it is conceded by the Secretary of State that the decision of the Cardiff appeal tribunal sitting on 31 May 2002 was defective in law and must be set aside.  I accept that concession, set aside the tribunal decision and in accordance with section 14(8)(b) Social Security Act 1998 remit the case to a fresh tribunal for a complete rehearing and reconsideration of the claimant’s entitlement to both mobility and care components of disability living allowance from the date of his claim on 27 March 2001.  
2.	I held an oral hearing of the appeal which had been requested by the claimant.  He appeared in person assisted by his brother, and the Secretary of State was represented by Mr V Lewis of the Department of Work and Pensions.
3.	The claimant is a man now aged 54 who has had the ill luck to have to have a leg amputated because of diabetes.  In his case this involved a particularly difficult and traumatic amputation with his leg having to be further shortened in a second operation to a point above the knee, and a difficult healing and recovery process.  He still finds himself unable to use an artificial leg at all satisfactorily because of pain and inability to put weight on it, although psychologically it is obvious he has coped extremely well, explaining the whole business to me with fortitude and good humour.  
4.	As Mr Lewis readily acknowledged, there seems in this case to have been a measure of procedural confusion (not I think any one individual’s fault in particular) that has contributed to the tribunal’s consideration of it being less comprehensive than it might have been.  In the first place a decision was issued making only a short‑term award of the allowance on the basis of a medical examination carried out while the claimant was still in hospital, from where he originally made his claim.  I am not quite clear of the date when he actually came out of hospital; and that will be one of the factual matters that the new tribunal hearing the case will need to consider and record, as it may have an effect on the date on which the actual payment of benefit under the claim accepted as made on 27 March 2001 was able to start.  
5.	The initial award as I say was for a relatively short period of only 18 months, for mobility at the higher rate and care only at the lowest; but this was eventually replaced by the decision which led to the appeal to the tribunal, which appears to have been the one dated 22 January 2002 at pages 80 to 85 of the appeal file.  That was by way of revision under section 9 Social Security Act 1998 of a previous less generous one issued earlier the same month declining to extend or increase the original award, as the claimant had asked after he had been notified of it the previous year:  pages 74 to 75.  Although the precise mechanics of what happened are, as Mr Lewis acknowledged, a little difficult to follow in terms of the department’s own decisionmaking procedure, there is no doubt that the decision of 22 January 2002 (which was more generous to the claimant in being a four-year award, though it left the rates of benefit unaffected) was effective as a decision of the Secretary of State replacing all previous decisions on the claim for the entire period back to 27 March 2001.  Thus the claimant was entitled to appeal against it under section 12(1), and on his appeal the tribunal had jurisdiction to reconsider and redetermine all relevant questions of entitlement on his claim for the entire period from that date; I so direct the fresh tribunal which will now rehear it.
6.	The real problem on the substance of the appeal seems to me that the tribunal on 31 May 2002 dealt with it only by way of a paper consideration (the claimant himself not having asked for a hearing, though perhaps without realising the importance of this). The original medical evidence obtained while he was in hospital was out of date and not really any help in judging his condition at the time of the decision under appeal of 22 January: on that, the consultant’s report he submitted dated 19 February 2002 (a year after his transfemoral amputation, saying the wound had currently broken down and he was forced to use a wheelchair the whole time) was the only relevant medical evidence, but the tribunal chose not to accept it.  Then the tribunal’s decision had to be the subject of a correction because the original one contained a confusion over the dates, and the statement of reasons to explain the basis for what they did decide was not issued until 28 August 2002, some three months after they actually met and reached the decision itself.  None of this gave the claimant confidence that his appeal, and the consultant’s categoric report that the level of his mobility was never going to improve and this was a case for an extended mobility component award, had been as carefully considered as he was entitled to expect.
7.	The tribunal’s decision was to increase the care component award from the low to the middle rate, but leave the period of the combined award for both components unaffected at four years, rejecting the idea of an indefinite award for mobility as strongly suggested by what was said in the consultant’s report.  The claimant’s appeal is based on the tribunal having wrongly substituted their own more optimistic (and he contends quite unrealistic) prognosis for his mobility, without having even seen him themselves and without having any other medical evidence on which to base such an assessment.  
8.	While of course such matters as the level of help needed, and the likely duration of any particular disability, are for the tribunal of fact which is able to see and judge the evidence to determine, a tribunal (even a full tribunal including a medical member) must be particularly circumspect in reaching conclusions against a claimant and his consultant’s clear evidence on the basis only of a look at the case on paper.  Here all there really was to justify the tribunal’s own very much more upbeat assessment of the claimant’s mobility was an assumption from general experience about a person’s likely recovery time from a normal amputation, without the detailed knowledge of the claimant and his consultant of the particularly difficult and unpleasant nature of this one.  I am for my part left with a feeling of unease whether that was an adequate basis for rejecting the consultant’s categoric view (page 86) that 
“His level of mobility is never [sic] going to improve and in fact is likely to deteriorate as he gets older.  He is likely to experience frequent disturbances due to wound breakdown and have to resort to using a wheelchair more often than not.  It is quite clear that he needs his disability living allowance extended …” 
on the general ground that they thought it “over-pessimistic”.  In view of the Secretary of State’s concession that the decision itself has to be set aside, I do not however need to go into the tribunal’s findings and reasons in any more detail than that.  
9.	In the result I allow the appeal, set aside the tribunal’s decision and refer the case to a fresh tribunal for reconsideration of all material issues.  This will give the claimant the opportunity of attending and being represented at the full hearing which in my view is what his case has always needed.  It also seems to me that it would be strongly advantageous from all points of view for the new tribunal to have the benefit of a further medical assessment of his condition and likely prognosis both in terms of mobility and of the general assistance he needs with his everyday living requirements.  It would be of assistance to the new tribunal if the Secretary of State could arrange this, since the last departmental medical examination took place only when the claimant was in hospital and was obviously out of date even by the time of the revised decision under appeal on 22 January 2002: but in any event, the claimant should himself consider and take advice on whether to get a supplemental medical report from his consultant, or other medical evidence, directed specifically to the statutory criteria for mobility and care.  I direct the new tribunal that this is a case where they will need to consider the making of an indefinite award for mobility if it is true there has been and will be no improvement in the claimant’s ability to get around, even though a shorter term fixed period award for care may be more appropriate as he learns to adapt, and they do of course have power to deal with the periods separately in this way under section 71(3).

(Signed)
P L Howell
Commissioner
7 March 2003