R(DLA) 5/04
(Petition of Michael Patrick Mooney for Judicial Review of a decision of a Social Security Commissioner)
CS (Lord Brodie)
23.4.04	CSDLA/419/2001	
Practice - judicial review - approach to be taken by Commissioners in considering applications for leave to appeal - whether Commissioner’s refusal of leave should be reduced as erroneous in law 
The claimant, who suffered from dizzy spells and osteoarthritis, applied for both the mobility and care components of disability living allowance. Both the adjudication officer and the appeal tribunal refused to make an award. The Commissioner refused leave to appeal since the ground of appeal did not raise any proper issue of law. The claimant sought judicial review of the Commissioner’s determination by petition to the Outer House of the Court of Session.
Held, refusing the petition, that:
1.	there were three criticisms contained in the petition: (i) that the Commissioner had refused leave where the appeal tribunal had failed to have proper regard to the statutory test on virtual inability to walk, and that this was a ground of appeal contained in the notice of application to the Commissioner; (ii) that the Commissioner had failed to grant leave where the appeal tribunal had made obvious errors of law; and (iii) that in refusing leave the Commissioner erred in law in making his determination that “the distance covered would be sufficient to negate any award” (paragraph 29);
2.	in regard to the first criticism, the application to the Commissioner could not be read as containing an express ground that the tribunal had misdirected itself or otherwise misapplied the correct statutory test. The third criticism did not disclose a material error of law in that what was criticised was essentially a judgement by the Commissioner when considering the appeal tribunal’s statement of reasons based on a purposive construction of the legislation and on his knowledge and understanding of social security principles and practice. (R (Anayet Begum) v. Social Security Commissioners and Cooke v. Secretary of State for Social Security cited with approval.) (paragraph 30);
3.	in regard to the second criticism, the appeal tribunal and the Commissioner were exercising an inquisitorial function. It was not straightforward for a Commissioner, simply on a consideration of the documents, to determine whether there was a failure on the part of the appeal tribunal to ask all the questions which should have been asked. Guidance on the proper approach is contained in R (Anayet Begum) v. Social Security Commissioners (paragraphs 31 to 34);
4.	it was not a valid criticism of a decision-maker, having an obligation to make findings and give reasons, that the decision does not canvass all relevant possibilities and demonstrate that they have been excluded when such issues have not been raised as issues before the decision-maker (paragraph 35);
5.	section 12(8)(a) of the Social Security Act 1998 states that an appeal tribunal need not consider any issue that is not raised by the appeal. While it is not necessary for an issue to arise that it be raised by a party, even if represented by a skilled representative, the issue must be one which obviously demands attention (paragraph 35);	
6.	on the basis of this analysis, the Court could not regard the Commissioner as having fallen into error of law when refusing to grant leave to appeal (paragraph 37).

DECISION OF THE COURT OF SESSION (OUTER HOUSE)
Mr R. D. Sutherland (instructed by Anderson Strathern, Solicitors for Quinn Martin & Langan, Solicitors, Glasgow) appeared on behalf of the petitioner:
Mr Brodie (instructed by H. F. Macdiarmid, Office of the Solicitor to the Advocate General) appeared on behalf of the respondent.
LORD BRODIE
Introduction
1.	The petitioner is Michael Patrick Mooney. He was born on 18 March 1951. In the petition he avers that, among other difficulties, he has suffered from dizzy spells over a prolonged period and has osteoarthritis which affects his knees and lower back which has the result that he is only able to walk very slowly and for a limited distance. He avers that he has to stop whilst walking because of arthritic pain and that he has fallen over on a number of occasions. On one such occasion he fell while outside and required fifteen stitches.
2.	The petitioner has made a claim for disability living allowance (“DLA”). DLA is a non-contributory benefit paid to those people who are so disabled as to need assistance in leading a normal life or who have certain prescribed difficulties in relation to walking. DLA consists of two components: the care component, and the mobility component. The mobility component is paid at two rates: a higher rate and a lower rate. Entitlement to the mobility component of DLA is governed by, inter alia, sections 71 and 73 of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”) and regulation 12 of the Social Security (Disability Living Allowance) Regulations 1991, SI 1991/2890 (“the 1991 Regulations”). A person making a claim for DLA requires to complete a quite extensive application form known as a “claim pack”. The petitioner submitted a completed claim pack on 30 January 1999. On 9 February 1999 an adjudication officer made a decision that the petitioner did not satisfy the conditions for entitlement to either component of DLA. On 22 March 1999 the petitioner asked that that decision be reconsidered. On 29 March 1999 he submitted a second completed claim pack. On 11 August 1999 the petitioner's general practitioner provided a medical report. On 11 September 1999 an adjudication officer decided not to revise the original decision. The petitioner appealed against that decision by a letter dated 22 November 1999 which authorised Glasgow City Council Social Work Department to act on his behalf in the appeal. A copy of that letter appears as the page numbered 1 in 6/7 of process (the Secretary of State's Submission to appeal tribunal). On 18 October 1999 the Social Security Act 1998 (“the 1998 Act”) was brought into force in respect of DLA. The 1998 Act abolished the title and status of adjudication officers, transferring their functions to officers acting in the name of the Secretary of State. From 18 October 1999, the Secretary of State replaced the adjudication officer as party to appeals such as that of the petitioner. In terms of section 12 of the 1998 Act, the petitioner's appeal was to the unified appeal tribunal constituted in terms of section 7 of the 1998 Act. An appeal hearing before an appeal tribunal took place on 6 July 2000. The petitioner was represented at the hearing by a welfare rights officer. The petitioner gave evidence. No presenting officer appeared on behalf of the Secretary of State but the appeal tribunal had before it the Secretary of State's Submission to appeal tribunal, number 6/7 of process. This is a bundle of documents containing a summary of the case and “relevant information”. The relevant information comprised the petitioner's appeal letter of 22 November 1999 (page 1), the claim packs (pages 2 to 67), the general practitioner's report of 11 August 1999 (pages 68 to 71) and the adjudication officer’s decision (pages 72 to 77). Number 6/3 of process is a copy of the record of the proceedings at that hearing before the appeal tribunal. The appeal tribunal decided to refuse the appeal and uphold the decision of the adjudication officer. Number 6/1 of process is a copy of the appeal tribunal’s Decision Notice. A decision notice is a pro forma sheet designed to be completed on the day of the decision with a view to advising the appellant of the outcome of his appeal. It is not intended to contain reasons. It is, however, open to an appellant to request reasons. On a date which is not disclosed in any of the documents which are produced in the petition (but which, if the application was not late, would have been within one month of the giving of the decision notice: Social Security and Child Support (Decisions and Appeals) Regulations 1999, SI 1999/991, regulation 53 (4)) the petitioner requested reasons for the appeal tribunal’s decision. A Statement of Reasons for Decision (a copy of which is Number 6/2 of process) was issued on 13 November 2000. It is the petitioner’s position that the decision of the appeal tribunal was erroneous in law. In terms of section 14(1) of the 1998 Act, an appeal lies to a Social Security Commissioner from the decision of an appeal tribunal on the ground that the decision of the tribunal is erroneous in law. However, in terms of section 14(10) no appeal lies under the section without the leave of either the Chairman of the relevant appeal tribunal or, subject to and accordance with regulations, of a Social Security Commissioner. The relevant regulations are the Social Security Commissioners (Procedure) Regulations 1999, S.I. 1999/1495 (“the 1999 Regulations”). The petitioner applied to the Chairman of the appeal tribunal for leave to appeal the decision of the appeal tribunal. This application was refused. The petitioner thereafter applied to the Social Security Commissioner for leave to appeal to the Commissioner. In terms of regulation 10 of the 1999 Regulations, an application to a Commissioner for leave to appeal shall be made by notice of application in writing. A copy of the Notice of Application on behalf of the petitioner is lodged as number 6/4 of process. This was sent to the office of the Social Security Commissioner under cover of letter dated 27 February 2001, a copy of which is lodged as number 6/5 of process. On 29 May 2001 the Social Security Commissioner made a determination to refuse leave to appeal on a question of law from the decision of the appeal tribunal. A copy of that determination is lodged as number 6/6 of process. The petitioner seeks judicial review of the refusal by the Social Security Commissioner to grant leave to appeal. The petitioner avers that the Social Security Commissioner erred in law in determining to refuse to grant leave. The petitioner seeks to have the determination reduced. In the event of the court pronouncing decree of reduction, this will allow the petitioner to make a further application to a Social Security Commissioner for leave to appeal.
3.	The petition came before me for a first hearing on 13 November 2003. Mr Robert Sutherland, Advocate, appeared for the petitioner. Mr Brodie, Advocate, appeared for the Advocate General as representing the Secretary of State for Work and Pensions, on whose behalf Answers had been lodged. Counsel agreed that the matter was capable of determination at a first hearing without the leading of evidence. Mr Sutherland moved me to grant decree of reduction. Mr Brodie moved me to refuse the petition.
Relevant Statutory Provisions
4.	The 1992 Act provides, inter alia, as follows:
“71.–(1) disability living allowance shall consist of a care component and a mobility component.
(2) A person's entitlement to a disability living allowance may be an entitlement to either component or to both of them.
...
73.–(1) Subject to the provisions of this Act, a person shall be entitled to the mobility component of a disability living allowance for any period in which he is over the relevant age and throughout which -
(a) he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so; ...”
5.	The 1991 Regulations provide, inter alia, as follows:
“12.–(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) of the Act (unable or virtually unable to walk) only in the following circumstances -
(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to place of, or nature of, employment -
(i) he is unable to walk; or
(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk; or
(iii) the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health; or
(b) he has both legs amputated at levels which are either through or above the ankle, or he has one leg so amputated and is without the other leg, or is without both legs to the same extent as if it, or they, had been so amputated.”
6.	The 1998 Act provides, inter alia, as follows:
“12. … (8) In deciding an appeal under this section, an appeal tribunal -
(a) need not consider any issue that is not raised by the appeal; and
(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”
The Petitioner's Appeal Letter
7.	The petitioner's letter of 22 November 1999 appealing the decision of the adjudication officer refusing the claim for DLA was in these terms:
“I wish to appeal your decision to refuse me disability living allowance. Osteoarthritis in my knees causes me to stop walking after only a few yards (approx 40 yds) due to severe discomfort. I suffer from nervous debility, and my hands get ‘shakes’. This and the panic attacks means I need help from others, especially as concerns cooking for myself.”
The appeal tribunal's Statement of Reasons for Decision
8.	The Statement of Reasons for the decision of the appeal tribunal included the following findings in fact:
“1.	Mr Mooney is aged 49. Mr Mooney claimed disability living allowance on 30.1.99. A decision was made on 9.2.99 that he didn’t satisfy the conditions for entitlement. On 22.3.99 Mr Mooney asked for the decision to be looked at again. On 11.8.99 Mr Mooney’s general practitioner provided a medical report. On 11.9.99 the original decision was looked at again but not revised. On 23.11.99 Mr Mooney requested an appeal.
2.	Mr Mooney has had a tumour removed from his mouth and throat. He was operated on in January 1999. He also suffers from osteoarthritis, mainly affecting knees and lower back. He is able to walk 100 metres at a slow pace. He has had occasional falls but he doesn’t require any physical support from another person out of doors. He does not experience pain or breathlessness amounting to severe discomfort but would require to stop because of arthritic pain. He does not require guidance or supervision whilst out of doors although he may prefer to be accompanied.
3.	We adopt as part of our findings in fact the report by the GP at pages 68-71 which refers to the appellant’s ability to carry out various functions without the assistance of anyone else. We therefore find that he is safely capable of attending to all aspects of his personal care.
4.	We find the appellant is fully mentally competent and is aware of common dangers and does not suffer from any episodes of altered awareness or loss of consciousness.
5.	The appellant has fallen occasionally but has had no injuries as a result of these falls.”
9.	The appeal tribunal explained that it had reached its decision for the following reasons, based on its findings in fact:
“In order to qualify for the higher rate of mobility component, the person must have a physical disability which makes them either unable to walk or virtually unable to walk. The statutory criteria are contained in Sections [71] and 73 of the Social Security Contributions and Benefits Act 1992 and regulation 12 of the Social Security DLA Regulations 1991. Mr Mooney is not unable to walk and, therefore, the tribunal required to consider whether he was virtually unable to walk. Mr Mooney’s evidence in his claim pack was that he could only walk 50 yards. His evidence to the tribunal was that he could go to the local shops which were 100 yards away. He stated that his walking had deteriorated since the decision was made. He did not use a stick as he couldn't cope with it. He stated that sometimes his knees gave way in the morning and were stiff. It took him two or three minutes to get out of bed. He attended AA meetings regularly. He presently lived in a flat which was three flights up and was waiting to move into sheltered accommodation. While it is correct that medical evidence is not conclusive and can be rebutted by direct or circumstantial evidence, that evidence requires to be both credible and consistent. Having had the benefit of taking oral evidence from Mr Mooney today we formed the view that he was not virtually unable to walk out of doors without severe discomfort taking into account distance, speed and manner.
The criteria for an award of lower rate mobility is that the person is so severely disabled, mentally or physically that they require guidance or supervision from another person when walking out of doors. Mr Mooney’s evidence was that he was able to go out alone and he, therefore, does not qualify for the lower rate of mobility component.
The submission put before the tribunal was for an award of middle or lower rate care. The criteria to be addressed on award of middle rate care is that the person requires frequent attention throughout the day in connection with bodily functions [or] that they need continual supervision to prevent substantial danger to themselves or others. Again with regard to care needs, we had the evidence from the general practitioner at page 69 to the effect that he was mentally alert and not confused. There was no medical record of falls or of dizziness or visual problems. He was able to attend to all his personal care and was safely mobile in the home and at page 70 it was indicated that he was safely alone by day and by night and outdoors. Mr Mooney's evidence to the tribunal was that he was able to toilet unaided and use the shower, able to dry himself, able to dress using casual clothes, make himself coffee. He drank a lot of fluids. That he didn't cook because he was frightened of taking a turn. He stated that he had fallen outside recently and required 15 stitches and that two months before that he had slipped on the kitchen floor. That he had some six months ago burned himself boiling eggs. Having had the benefit of the evidence from Mr Mooney the tribunal found that he did not require frequent attention in connection with bodily functions.
We then considered the question of supervision. It had been stated in evidence by Mr Mooney that he sometimes had dizzy spells and fell. This, however, was not confirmed by the doctor. We consider the danger was too remote and that there was not any requirement for supervision to prevent substantial danger to himself.”
There then followed reasoning which was specific to the claim for the care component of DLA. The tribunal concluded: “We, therefore, refused the appeal and upheld the decision of the adjudication officer.”
The Notice of Application to a Commissioner for Leave to appeal
10.	The notice of application on behalf of the petitioner, in terms of regulation 10 of the 1999 Regulations, was in the following terms:
“I refer to the DAT decision of 16/7/00 treat this letter as application for leave to appeal to the Commissioner on the grounds that the tribunal have erred in law in respect of the reasoning in relation to the higher rate mobility component.
On page 68 there is a GP report which states:
‘Walks very slowly and can manage about 100 yards’.
At finding of fact 2 the tribunal write:
‘He is able to walk 100 metres at a slow pace’.
The tribunal gives no reason for not adopting the GP's statement as to speed ‘very slow’.
Indeed it may be that they have had no regard to the GP report in respect of mobility as it is not mentioned at finding of fact 2 (in respect of mobility) but it is mentioned in finding of fact 3 (in relation to care).
Similarly in the reasons in respect of higher mobility they make no reference to the GP report and the GP’s evidence is only mentioned in respect of the main meal test.
The tribunal appears to have ignored evidence on a selective basis and this is an error of law.”
Determination by Social Security Commissioner Refusing Leave to appeal
11.	The determination was in these terms:
“This is an application to a Commissioner by the claimant for leave to appeal on a question of law from the decision of the appeal tribunal dated 6 July 2000.
Having considered the application, I refuse leave to appeal. The suggested ground for appeal [does] not appear to me to raise any proper issue of law. It is not a true point of law to raise an argument on semantics as to whether a particular walking falls to be categorised as ‘slow’ or ‘very slow’. That is especially so where, as here, the distance covered would itself be sufficient to negate any award.”
Submissions of Parties before the Court
Submissions for the Petitioner
12.	Having drawn my attention to the relevant statutory provisions (which are reproduced at paragraphs 3 and 4 above), Mr Sutherland explained that the criterion for entitlement to the mobility component in DLA, being virtually unable to walk, which is now found in regulation 12(a)(ii) of the 1991 Regulations, has been the subject of a number of decisions by Social Security Commissioners. The words “without severe discomfort” in the context of the statutory test to determine whether a person is virtually unable to walk, require that one must look only at what are the limitations (if any) on the person’s ability to walk outdoors without severe discomfort, be they limitations in point of distance, speed, length of time taken or manner of progress, and require that one must ignore any extended outdoor walking accomplishment which the person could or might attain only with severe discomfort: Commissioners’ Decision R(M) 1/81. Therefore, if a claimant is able to walk, but only with severe discomfort, he is entitled to benefit. It was obligatory for the appeal tribunal to take into account not only the limitations in the four respects mentioned in the relevant statutory provisions on the ability to make progress on foot without severe discomfort, but also such limitations on a claimant’s ability to make progress on foot irrespective of severe discomfort: tribunal of Commissioners’ Decision R(M) 1/83. As speed is a function of distance and time, it is to be presumed that the purpose of including all three factors (distance, speed and time) is that consideration of the length of time for which a person is able to walk requires an adjudicating authority to take account of limitations as to time beyond the limits necessarily implied by the fact that it must take a certain length of time to walk the distance the claimant can manage at the speed he can manage: [starred] 91/00 [CDLA/4388/1999], and CDLA/805/1994, quoted in 91/00 (where the example is given of a claimant who was able to walk 400 yards at a reasonable pace but who, having done so, would have to wait for two hours before being able to walk a further 400 yards, being properly regarded as virtually unable to walk). Mr Sutherland further explained that in the case of a claim for DLA, the jurisdiction is limited to the inclusive period from the date of claim to the date of the decision under appeal. The effect of that is to limit the evidence that is relevant to the appeal. The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction. If the evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates: [starred] 78/99 [R(DLA) 2/01], 6/00 [R(DLA) 3/01]. While the only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction, it is the time to which the evidence relates that is significant, not the date on which the evidence was written or given. The tribunal is not limited to the evidence that was before the officer who made the decision and the tribunal is not limited to evidence that was in existence at the date of the hearing before the officer. If evidence is written or given after that date, the tribunal must determine the time to which it relates. If it relates to the relevant period, it is admissible. If it relates to a later time, it is not admissible.
13.	In Mr Sutherland’s submission the decision of the appeal tribunal was vitiated by obvious errors of law. It had failed to make findings of fact in relation to a number of important matters. There was no finding in fact as to the petitioner's having suffered dizzy spells. There was no reference to the potential of the petitioner being injured in the event of falling. There was no reference to the time it took the petitioner to walk the distance of 100 metres mentioned in finding in fact 2. There was no reference as to whether the arthritic pain of which the petitioner complained caused him severe discomfort. The findings in fact which the appeal tribunal had made were not made by reference to any point in time. In the result, it was difficult to marry-up the second page of the appeal tribunal’s Statement of Reasons for Decision, which contained its reasons, with the first page, which contained its findings in fact. It would appear from its findings in fact that the appeal tribunal found that while the petitioner had fallen over occasionally, he had not had dizzy spells and he had not been injured by reason of having fallen. The purpose of awarding the mobility component of DLA is to allow a person to get out of doors. In the first claims pack completed by him, the petitioner stated that he did not go out of doors. In the second claims pack completed by him, the petitioner stated that he fell or stumbled in the street. Because it is such an obvious point, the appeal tribunal ought to have asked themselves what was the significance of the claim of falling over. The possibility of the petitioner suffering injury in the event of falling appears to be have been ignored by the appeal tribunal because no mention of it was made in the report by the general practitioner. If the appeal tribunal thought that the petitioner's evidence (as to having fallen outside recently and requiring 15 stitches, as recorded by the tribunal in that part of the Statement of Reasons for Decision in which it gives its reasons) related to a time subsequent to the date of the claim, that does not feature in their decision. The general practitioner's report was dated 11 August 1999. It therefore preceded in time the date on which the petitioner gave evidence at the hearing before the appeal tribunal (on 6 July 2000). The appeal tribunal appears to have rejected the petitioner’s evidence that he had fallen because this was not confirmed by the general practitioner. That may have been an error in that the appeal tribunal did not appreciate that the event may have post-dated the general practitioner’s report. It was not necessary that an apprehended danger (here injury from falling) had eventuated in order to qualify a claimant for an award of benefit. It may be that the appeal tribunal ignored the petitioner's evidence as to his having fallen because it had happened recently and was subsequent to the date of the adjudication officer’s decision (11 September 1999) but the appeal tribunal does not expressly say so, or give any other reason for not accepting the petitioner. It was Mr Sutherland’s submission that the most obvious reading of the appeal tribunal's decision was that it had simply rejected the possibility of the petitioner falling and injuring himself because it was not mentioned in the general practitioner's report or that it took the view that the pursuer’s fall was a one-off incident. The absence of any finding in relation to dizzy spells and the finding that the petitioner had had no injuries as a result of falls was unreasonable. The appeal tribunal did not explain why they accepted that the petitioner fell over occasionally but rejected the account of dizzy spells. The appeal tribunal had proceeded solely upon the basis of an absence of reference to this in the general practitioner's report. This was not an adequate and proper reason.
14.	Turning to the matter of arthritic pain, Mr Sutherland pointed to the absence of any explicit finding in fact as to the impact of arthritic pain on the petitioner’s ability to walk although he accepted that the appeal tribunal's findings in fact were capable of being read as including an implicit finding that such arthritic pain as the petitioner suffered did not have the result that he could only make progress on foot with severe discomfort. The relevant sentence was, as Mr Sutherland put it, open to interpretation. Mr Sutherland conceded that there was plenty of authority to say that tribunals need not give elaborate reasons covering all matters of law and that the courts should not exercise over-rigorous scrutiny. If one can understand why the tribunal has come to its decision that may be sufficient. However, given the general inadequacy of the appeal tribunal’s approach in this case, which was simply to deal in generalities, the court would be entitled to come to the view that the appeal tribunal had failed to make a necessary finding on the impact of the arthritic pain which the petitioner suffered on his ability to walk.
15.	Mr Sutherland accepted that the appeal tribunal had accurately narrated the statutory test for virtual inability to walk in its Statement of Reasons for Decision but he stressed that the tribunal did not find as a fact or discuss or provide any analysis or reasoning in relation to the length of time it might take the petitioner to walk any particular distance. The expression “slow pace” is very uninformative. Mr Sutherland's criticism was that this broad brush approach was unsatisfactory. There had been a failure to make a proper assessment. The appeal tribunal must provide some degree of particularisation as to what are the capabilities of an applicant for benefit. That includes how far the applicant can walk either with or without severe discomfort, the time taken by the applicant to walk a specified distance, whether interruption is involved, and how long it takes him to recover thereafter. If an applicant were to say that it took him two minutes to walk 50 yards, there is a risk that the applicant might underestimate the time involved. Fifty yards was not a very great distance. If it is said that the applicant can walk 100 yards, does that mean in two 50 yard bursts? If the applicant is prone to dizzy spells and falls, the question arises as to whether dizzy spells arise because of his walking. Dizzy spells and falling obviously impinge on the ability to walk. In this case the appeal tribunal has either failed properly to apply the statutory test or, alternatively, failed to give proper and adequate reasons for its decision. Where no proper and adequate reasons are given, the presumption arises that there were no reasons and, accordingly, the appeal tribunal is taken as having fallen into an error of law.
16.	Mr Sutherland acknowledged that the decision under review in this petition for judicial review was that of the Social Security Commissioner rather than the appeal tribunal. However, the errors which are referred to in paragraphs 10 and 11 of the petition are obvious errors in law. In the face of such errors, the Social Security Commissioner ought to have granted leave. Furthermore, the Social Security Commissioner stated in his reasons that the distance covered would, by itself, be sufficient to negate any award. That, in itself, was an error in law. It is a mis-statement of the statutory criterion. Mr Sutherland would have had no quarrel with the Commissioner’s formulation had it included the words “without interruption and without severe discomfort” but there was no basis for inferring these words into the relevant sentence in the determination. Mr Sutherland's criticism of the Commissioner was accordingly threefold: (1) that the Commissioner had refused leave to appeal where the appeal tribunal had failed to have proper regard to the statutory test when determining whether the petitioner was virtually unable to walk, this being a ground contained in the Notice of Application (rendered in the petition for judicial review as “[the] grounds of appeal ... highlighted the question as to the walking speed of the petitioner when deciding whether the petitioner qualified for the mobility component of DLA”); (2) that the Commissioner had failed to grant leave where the appeal tribunal had made obvious errors in law; and (3) that, in refusing leave, the Commissioner fell into error of law, additional to any error made by the appeal tribunal, in making his determination by reference to the consideration that “the distance covered would itself be sufficient to negate any award”.
17.	Mr Sutherland confirmed that whereas he considered the decision by the appeal tribunal on the care component of DLA also to be defective, what he sought to subject to judicial review was the decision of the appeal tribunal insofar as it related to the mobility component.
Submissions for the Respondent
18.	Mr Brodie, on behalf of the respondent, began by accepting, under reference to R(IS) 11/99, that it would have been an error of law on the part of the appeal tribunal had it refused to take into account or neglected to take into account matters which it ought to have taken into account or if it had failed to give adequate reasons for its decision (this being a breach of the rules of natural justice). Mr Brodie also accepted that it would have been an error of law had the appeal tribunal failed or neglected to ask material questions in pursuance of its duty to act inquisitorially. However, while Mr Brodie accepted that the appeal tribunal had a duty to act inquisitorially, he explained that this did not mean that it had a true inquisitorial role. Regard had to be had to the terms of section 12(8)(a) of the 1998 Act which provided that an appeal tribunal need not consider any issue that is not “raised by the appeal”. It was for a claimant to make his claim and to advance evidence in support of that claim. If that evidence indicated that a potential condition of entitlement was met then the appeal tribunal must address itself to the question as to whether entitlement is in fact made out. However, as was said in R(SB) 2/83, a decision of a tribunal of Commissioners: “Everything will depend upon the circumstances in any given instance.” The tribunal had then continued: “We would be slow to convict a tribunal of failure to identify an uncanvassed factual point in favour of the claimant in the absence of the most obvious and clear-cut circumstances.”
19.	Mr Brodie pointed to the fact that the Notice of Application did not identify a failure to act inquisitorially as the basis upon which the petitioner intended to appeal. Indeed, even in the petition for judicial review, it was not expressly said that a basis for the petitioner’s criticism of the decision of the appeal tribunal was that it failed to act inquisitorially. The importance of this was that while what essentially had been advanced in submission by Mr Sutherland: that the appeal tribunal had failed to fulfil its duty to act inquisitorially, might amount to a valid criticism of the appeal tribunal, it did not necessarily follow from that that the refusal of leave to appeal by the Social Security Commissioner fell to be reduced by the court, given the very different ground founded upon in the Notice of Application. The approach which the court should follow in reviewing the Social Security Commissioner’s determination, in Mr Brodie’s submission, was that adopted by Scott Baker J. in R (Anayet Begum) v. Social Security Commissioners [2002] EWHC 401: the determination should only be reduced if, on the material that was put before the Commissioner, there was an obvious ground of appeal which had strong prospect of success.
20.	Mr Brodie then turned to the law as to what amounts to sufficient reasons for the decision of a tribunal such as the appeal tribunal. Whereas the appeal tribunal is obliged to provide a statement of its reasons in writing, there is no statutory guidance as to the nature and extent of these findings. It was Mr Brodie's submission that a specialist tribunal, such as the appeal tribunal, is not expected to provide a lengthy narrative of the evidence led before it and detailed reasons as to why certain evidence is preferred over other evidence. What the decision-maker must do is, first, show that it applied its mind properly to the relevant law and, second, provide an intelligible justification for its findings in fact such as to leave the reader in no substantial doubt as to the basis of the decision: Singh v. Secretary of State for the Home Department 2000 SC 219 at 222A to D. Adequate reasons might be telegraphic as long as they left the reader in no real or substantial doubt as to why the decision had been arrived at. That, and the obvious point with strong prospects of success were the tests to be applied by the Social Security Commissioner in the present case when the matter came before him on an application for leave to appeal.
21.	When invited to review the determination of the Social Security Commissioner, the court should bear in mind, submitted Mr Brodie, that the Commissioner, like the appeal tribunal, was a specialist decision-maker in what was a specialised area of law. His decisions were therefore to be accorded a certain respect. Under reference to what was said by Hale LJ giving the leading judgement in the Court of appeal in Cooke v. Secretary of State for Social Security [R(DLA) 6/01] [2002] 3 All ER 279, Mr Brodie submitted that the court should take an appropriately modest view of how likely it was that the Social Security Commissioner had got it wrong. The court should show a proper deference to his decision and, indeed, to the decision of the appeal tribunal.
22.	Mr Brodie then turned to consider Mr Sutherland’s attack on the determination by the Social Security Commissioner. As he understood Mr Sutherland’s argument, it was to the effect that, as was apparent from a reading of the Statement of Reasons for Decision, the appeal tribunal had failed properly to apply the law; and, moreover, that the reasons given by the appeal tribunal were inadequate. Mr Sutherland had developed his argument under reference to speed of walking, falls, the risk of injury through falling, the presence or otherwise of arthritic pain, and dizziness. Mr Brodie stressed that one must look at the issues from the perspective of the Social Security Commissioner, but he began by reminding me what it was that the appeal tribunal required to consider in order to determine whether the petitioner was virtually unable to walk. In terms of regulation 12(1) of the 1991 Regulations, a person is to be taken to satisfy the condition of being virtually unable to walk only if his physical condition, as a whole, is such that his ability to walk out of doors is so limited, as regards the distance over which and the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort that he is to be regarded as virtually unable to walk. It is for the claimant to establish his claim and therefore it is for the claimant to establish with evidence that he satisfies that criterion. Mr Sutherland had relied on the decision by a tribunal of Commissioners, R(M) 1/83, and in particular what appears at paragraph 15 of that decision, as indicating what it is that an appeal tribunal requires to find when what is in issue is the claimant's entitlement to mobility allowance by reason of being virtually unable to walk. However, having reminded me that the petition does not expressly attack the appeal tribunal for a failure to carry out its duty to act inquisitorially, Mr Brodie argued, under reference to paragraph 10 in R(M) 1/83, that it was not necessary for an appeal tribunal to give reasons or make findings of fact on matters which were not put in issue. It was his submission that R(M) 1/83 did not establish that it will always amount to an error of law on the part of an appeal tribunal in the event that it does not make findings of fact in respect of distance, speed, time and manner of walking. What the appeal tribunal has to do is to decide as to the claimant’s inability to walk by reference to the matters listed in regulation 12 of the Regulations, insofar as these matters are raised in evidence. It could not be said that there had been a failure to make a finding if no evidence had been led upon which a finding could be made. Accordingly, Mr Brodie’s first answer to Mr Sutherland’s criticism as to the inspecific reference to speed in the reasons of the appeal tribunal and the absence of any reference to time taken was that the evidence did not put time in issue. What the appeal tribunal's Statement of Reasons for Decision indicated was that there had been an absence of evidence to the effect that the time taken by the petitioner to walk 100 metres was such as to bring him within the category of persons who were virtually unable to walk. If there had been no evidence, it is very difficult to say that the appeal tribunal's reasoning was inadequate. Summarising his position, Mr Brodie submitted that the appeal tribunal had had regard to the matters that it was required to have regard to by statute, there being no evidence on the time taken by the petitioner to walk 100 yards, time had not been put in issue and, accordingly, the appeal tribunal was entitled to come to the conclusion that it did in that the speed of the petitioner's walking was not so restricted as to amount to his being virtually unable to walk. Mr Brodie considered that he was bolstered in that position by the weight given in the decisions of the Social Security Commissioners to the ability to walk a distance of 100 yards: for example, CDLA/608/1994 and 91/00. These decisions illustrate that the decision of the appeal tribunal in the present case was one that was open to it to come to on the facts.
23.	Mr Brodie moved to look at the decision of the Social Security Commissioner in the light of the Notice of Application. The complaint made in the Notice was that the appeal tribunal appeared to have ignored evidence “on a selective basis” and that that amounted to an error of law. Mr Brodie submitted that a fair reading of the Notice was that the petitioner was complaining either that the precise formulation used in the general practitioner’s report had not been repeated in the appeal tribunal’s findings of fact, or that the general practitioner’s evidence had been ignored. The Commissioner’s reference in his decision to “an argument on semantics” would indicate that he had understood the petitioner's complaint in the former sense. Mr Brodie submitted that that was a reasonable interpretation. Accordingly, the Social Security Commissioner did not have his attention drawn to a complaint as to a failure to consider time taken by the petitioner in walking the distance referred to. Applying the R (Anayet Begum) test, it could not be said that the Notice of Application had identified an obvious ground with strong prospects of success relating to the appeal tribunal's failure to make a finding in fact about time. There was simply nothing before the Social Security Commissioner which put time in issue. There was, on the other hand, a Statement of Reasons for Decision which included a finding of fact in relation to speed which was reasonably based on the evidence which had been led before the appeal tribunal. The Statement of Reasons for Decision included the explanation that the appeal tribunal had considered the evidence of the petitioner in relation to speed, distance and manner of walking and, having done so, could not find him to be virtually incapable of walking. It was Mr Brodie’s submission that the Social Security Commissioner had before him a clear indication that all relevant matters had been taken into account by the appeal tribunal, a view which, for the Social Security Commissioner, would be bolstered by the difficulty, recognised in the relevant jurisprudence, of overturning the decision of an appeal tribunal that a claimant was not virtually incapable of walking when he was in fact capable of walking 100 metres or 100 yards.
24.	As to the falls, the appeal tribunal had expressly accepted the claimant when he said that he had fallen out of doors. However the information in the claim pack did not link falls to walking. Falling is only relevant if it compromises such ability a claimant has to walk. Accordingly, falling is not a matter that the appeal tribunal specifically required to consider. It could not be said that the treatment of falls indicated any failure by the appeal tribunal to have regard to what were the relevant factors in assessing a claim for the mobility component of DLA. Falls were not referred to in the Notice of Application. The statutory entitlement to the mobility component of DLA does not specifically refer to falling. Here the appeal tribunal had made a finding in fact that having regard to speed, distance and manner of walking, the petitioner was not a person who was to be regarded as being virtually unable to walk. Accordingly, it cannot be said that this was a matter to which the Social Security Commissioner’s attention had been drawn, and it cannot be said that he should have regarded this matter as obviously giving rise to a ground of appeal with strong prospects of success.
25.	In relation to falling and consequent injury, Mr Brodie, who took no issue with Mr Sutherland’s explanation of the effect of section 12(8)(b) of the 1998 Act, accepted that the appeal tribunal had evidence before it of the petitioner falling. The claim pack refers to him ending up on his back in the street. The record of proceedings includes a reference to the petitioner having fallen outside recently and having required fifteen stitches. However, the evidence was not of a propensity to fall as of 11 September 1999, rather it was of a particular recent event. Mr Brodie submitted that it was reasonable, given the terms of section 12(8)(b) of the 1998 Act, for the appeal tribunal to make no finding in fact to the effect that the petitioner had fallen injuring himself and requiring fifteen stitches. In its Statement of Reasons for Decision the appeal tribunal recorded that the petitioner’s walking ability had deteriorated since September 1999. It recorded falls and injury which were not connected to the petitioner walking. When asked to review the decision of the Social Security Commissioner, the court should put itself in the position of the Commissioner. Having regard to the terms of section 12(8)(b) the Social Security Commissioner had reason to discount falls leading to injury as being a relevant fact to which the appeal tribunal had obviously failed to have regard with the result that there were good prospects of an appeal.
26.	The appeal tribunal had, Mr Brodie submitted, properly dealt with the issue of arthritic pain. It found that the petitioner suffered from osteoarthritis, mainly affecting his knees and lower back. It was not, however, put in issue that because of pain secondary to osteoarthritis, the petitioner was to be regarded as virtually unable to walk. The appeal tribunal's conclusion was unimpeachable. Again, the question of arthritis was not raised in the Notice of Application.
27.	In relation to dizziness, the appeal tribunal had stated in its Statement of Reasons for Decision that it had been stated in evidence by the petitioner that he sometimes had dizzy spells and fell, but that this had not been confirmed by his doctor. The appeal tribunal went on to state that it considered the associated danger was too remote. Accordingly, the appeal tribunal gave a sufficient reason for leaving this out of account. Again, this was not an issue raised in the Notice of Application.
28.	In conclusion, Mr Brodie moved me to refuse the petition.
Discussion and decision
29.	The petitioner seeks reduction of the determination by the Social Security Commissioner, dated 29 May 2001, refusing leave to appeal from the decision of the appeal tribunal. I take that determination as my starting point. I consider that the determination is open to criticism. Number 6/6 of process is a copy of that determination. Its terms are set out at paragraph 9 above. The Social Security Commissioner states that he refuses leave to appeal and then goes on: “The suggested ground for appeal [does] not appear to me to raise any proper point of law.” A copy of the petitioner's Notice of Application to a Commissioner for leave to appeal is number 6/4 of process. Its terms are set out at paragraph 8 above. It states that the proposed appeal was “on the grounds that the tribunal had erred in law in respect of the reasoning in relation to the higher rate mobility component”. What follows is a more particular statement of the ground of appeal. The notice of application contrasts what appears in the general practitioner's report (Commissioner's papers, number 6/7 of process, at page 68): “Walks very slowly and can manage about 100 yards” with the finding in fact by the appeal tribunal: “He is able to walk 100 metres at a slow pace.” It goes on to state that the appeal tribunal gives no reason for not adopting the general practitioner's statement as to speed being “very slow”. It further states that the general practitioner’s report is not mentioned in finding in fact 2 and concludes that the appeal tribunal appears to have ignored evidence on a selective basis and that this is an error of law. In my opinion, contrary to what appears in the determination by the Social Security Commissioner, the Notice of Application does set out as a ground of appeal that the decision of the appeal tribunal was erroneous in point of law; the alleged error being that the appeal tribunal had ignored a relevant source of evidence in the form of the general practitioner's report. That is the only error which is specified in the Notice of Application but, clearly, if it could be established that the appeal tribunal did indeed ignore a relevant body of evidence, then that would amount to an error of law. The question would arise, of course, as to whether, on the face of its decision, it could be maintained that the appeal tribunal actually did ignore the terms of the general practitioner's report. I would understand the Social Security Commissioner to have thought that it could not. He considered the difference in wording as between the tribunal's finding in fact as it appeared in the Statement of Reasons for Decision and the general practitioner's report to raise no more than “an argument on semantics”. What I take him to mean by that is that what is raised in the Notice of Application (as a means of demonstrating that the appeal tribunal failed to have regard to a particular source of evidence) is the difference in meaning as between two expressions. I understood the Social Security Commissioner to indicate in his determination that he considered that there was no material difference between the two expressions and I would respectfully agree with him about that. It follows that it does not appear on the face of the appeal tribunal's Statement of Reasons for Decision that it ignored a relevant body of evidence. Accordingly, if the criticism of the Social Security Commissioner which I have discussed in this paragraph had been the basis upon which the petitioner sought to reduce his determination, I would not have been inclined to grant decree of reduction in that the only ground of appeal which was specified in the Notice of Application was not one that had any prospect of success whatsoever, far less strong prospects of success: cf. R (Anayet Begum) supra (a decision to which I shall return). All this is, of course, academic. The criticism that I have articulated in this paragraph is not a criticism which is made in the petition and it is not a criticism that was made by Mr Sutherland in submission. Indeed, rather than complaining that the appeal tribunal had ignored the general practitioner's report, Mr Sutherland's complaint was the rather different one, that the appeal tribunal had followed what was in the general practitioner's report to the exclusion of other evidence. However, that was not precisely how Mr Sutherland formulated his argument. The criticisms made in the petition, and elaborated by Mr Sutherland in submission as the grounds upon which he sought reduction of the determination by the Social Security Commissioner, were threefold: (1) that the Commissioner had refused leave where the appeal tribunal had failed to have proper regard to the statutory test when determining whether the petitioner was virtually unable to walk and that this was a ground contained in the notice of application to the Commissioner for leave (rendered in the petition as “[the] grounds of appeal … highlighted the question as to the walking speed of the petitioner when deciding whether the petitioner qualified for the mobility component of DLA”); (2) that, in any event, the Commissioner had failed to grant leave where the appeal tribunal had made obvious errors in law; and (3) that in refusing leave the Commissioner fell into error of law (additional to any error made by the appeal tribunal) in making his determination by reference to the consideration that “the distance covered would itself be sufficient to negate any award”. These are the criticisms that I require to consider.
30.	I can deal with the first and third of these grounds on which the determination of the Social Security Commissioner is sought to be reduced relatively shortly. I reject ground (1) because I cannot read the Notice of Application as containing as an express ground of appeal that the appeal tribunal had misdirected itself as to, or otherwise misapplied, the correct statutory test as to what amounted to being “virtually unable to walk”. I refer to what appears in paragraph 29 above. Ground (3) focuses on the final sentence of the determination: “That is especially so where, as here, the distance covered would itself be sufficient to negate any award.” I accept that to determine the question of whether a person is virtually unable to walk by reference only to the distance over which he can make progress and not also by reference to speed, length of time taken, and manner, without severe discomfort, would amount to an error of law. That follows from the terms of regulation 12 of the 1991 Regulations and the Commissioners' decisions to which I was referred. That said, an ability to walk 100 yards points very strongly away from a finding that a person who has such an ability is nonetheless virtually unable to walk: R (Anayet Begum) at paragraph 29. The matter is put this way by Commissioner Hull in CDLA/608/1994, at paragraph 14:
“It is impossible to lay down a priori rules for such questions as the distance a person must be found to walk without severe discomfort before he ceases to count as “virtually unable” to walk, since so much depends on the circumstances and physical state of each particular claimant. However it has been said that what “virtually unable to walk” means is a question of law (R(M) 1/78 [paragraph] 11), and some general guidance can be gleaned from the reported decisions. In the absence of any special indications from the other three factors, if a claimant is unable to cover more than 25 or 30 yards without suffering severe discomfort, his ability to walk is not “appreciable” or “significant”; while if the distance is more than 80 or 100 yards, he is unlikely to count as “virtually unable to walk” as those words have generally been interpreted in [section] 73 and [regulation]12. In the difficult ground in between, I for my part find helpful the approach of the Commissioner in case CM 79/89 at [paragraph 13], where he said that mobility allowance (as it was then) was never designed to - and does not - embrace those who can walk 60 or 70 yards without severe discomfort. In such a case, therefore, there would have to be some other factor such as extreme slowness or difficulty because of the manner of moving forward on foot before a claimant would count as “virtually unable””.
Mr Brodie sees that passage in the decision of the Commissioner as supporting his proposition that it would be difficult to conclude that a person was virtually unable to walk if he was in fact able to cover 100 yards. Mr Sutherland, on the other hand, urged me to regard what had been said by Commissioner Hull as obiter and not as an indication of the general approach adopted by Social Security Commissioners. Mr Sutherland accepted that he could have no quarrel with the proposition that an ability to cover the distance of 100 yards without interruption and without severe discomfort negates a finding of being virtually unable to walk but, he submitted, there was no basis for inferring these words into the final sentence of the determination. What there was, was a statement by the Social Security Commissioner that “the distance covered would itself be sufficient to negate any award”. Mr Brodie emphasised that when the court is reviewing the decisions of specialist statutory tribunals such as the appeal tribunal and the Social Security Commissioner, it should accord these tribunals and their decision-making a proper respect. The court, as he put it, under reference to what had been said by Hale LJ in Cooke v. Secretary of State for Social Security, should take a modest line. Mr Sutherland reminded me of the differences as between the decision-making process that was under consideration in Cooke and the decision-making process which was under consideration here. However, he accepted that a degree of deference or, at least, respect was indeed owed by the court to a lower decision-making body. One might assume that it had done its job properly but one must also be aware that mistakes do happen. I agree with Mr Brodie that the court should take a modest line. I agree with Mr Sutherland that the court should show proper respect to what he described as lower decision-making bodies (for myself, I prefer the expression “specialised decision-makers”). I consider that useful guidance is to be found in the judgement of Hale LJ in Cooke v. Secretary of State for Social Security supra. That was an appeal with permission of the Court of appeal from the decision of a Social Security Commissioner dismissing the claimant's appeal from the decision of a disability appeal tribunal dismissing an appeal from the decision of an adjudication officer. The appeal was refused. The court took the opportunity to make some observations on the criterion for the grant of permission to appeal in such cases. The leading judgment was given by Hale LJ As was recognised by Mr Brodie when he was addressing me in relation to the decision, Hale LJ was discussing a statutory appeal rather than an application for judicial review but, he submitted, similar considerations applied. In both cases, the court was being invited to review (using the term in the broadest sense) decisions of specialised decision-makers in what was a highly specialised area of law. Hale LJ said this at 285e:
“[The] ordinary courts should approach such cases with an appropriate degree of caution. It is quite probable that on a technical issue of understanding and applying the complex legislation the Social Security Commissioner will have got it right. The Commissioners will know how that particular issue fits into the broader picture of social security principles as a whole. They will be less likely to introduce distortion into those principles. They may be better placed, where it is appropriate, to apply those principles in a purposive construction of the legislation in question. They will also know the realities of tribunal life. All of this should be taken into account by an appellate court when considering whether an appeal will have a real prospect of success.”
Hale LJ went on to express the view that the Court of Appeal should take an appropriately “modest view” of how likely it was that the Social Security Commissioner had got it wrong. Agreeing with Mr Brodie, I see the admonition contained in the judgement of Hale LJ to be a useful one. It was Mr Brodie's submission that I should keep the observations of Hale LJ in mind when considering whether Commissioner Walker had “got it wrong”. I do not consider it to be consistent with what I took to be an essentially common approach adopted by counsel, to conclude from the terms of his determination that the Social Security Commissioner in the present case had indeed misdirected himself in relation to the criteria to be applied in deciding whether a person is virtually unable to walk. The Social Security Commissioner was considering a Statement of Reasons for Decision of the appeal tribunal. That decision included a statement of these criteria, both by reference to the relevant statutory provisions and in its conclusion in the final sentence of the first paragraph that: “having had the benefit of taking oral evidence from Mr Mooney today, we form the view that he was not virtually unable to walk out of doors without severe discomfort taking into account distance, speed and manner”. In the circumstances I find it artificial in the extreme to suggest that the Social Security Commissioner, when referring to the distance over which the petitioner was able to progress, was misdirecting himself or acting under error of law. I cannot, in any event, regard what is suggested as being an error of law on the part of the Social Security Commissioner to be material. The question to which his attention had been directed by the Notice of Application was whether there was any significant difference between managing about 100 yards walking “very slowly” and being able to walk 100 metres “at a slow pace”. The Commissioner, as I would understand his determination, considered that there was no significant difference between these expressions and it was because he considered there to be no significant difference that he made the determination that he did. He then went on to say that this was especially so in the light of the distance covered. Even if it is to be assumed against the Commissioner, because of his use of the expression “sufficient to negate any award”, that, when making his determination, he was failing to have regard to the factors of length of time taken, manner in which progress was made, and absence of severe discomfort, I cannot see how such failure might have made a difference to that determination.
31.	Before turning to the second of the grounds upon which the determination of the Social Security Commissioner is sought to be reduced: that is that the appeal tribunal had made obvious errors in law which should have been apparent to the Social Security Commissioner and which should have led him to grant leave to appeal, it is convenient to say something about the law as it relates to the respective functions of the appeal tribunal and the Social Security Commissioner in respect of the petitioner's appeal from the decision of the Secretary of State and his subsequent application for leave to appeal the decision of the appeal tribunal.
32.	In R v. Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1 QB 456 [reported as Appendix to R(I) 4/65], Diplock LJ said this:
“In dealing with appeals of these kinds, the insurance tribunal, namely the local appeal tribunal or the commissioner or deputy commissioner as the case may be, is exercising quasi-judicial functions ... But there is an important distinction between the functions of an insurance tribunal and those of an ordinary court of law … [A] claim by an insured person to benefit is not strictly analogous to a lis inter partes. Insurance tribunals form part of the statutory machinery for investigating claims, that is, for ascertaining whether the claimant has satisfied the statutory requirements which entitle him to be paid benefit out of the fund. In such an investigation neither the insurance officer nor the Minister ... is a party adverse to a claimant. ... The insurance tribunal is not restricted to accepting or rejecting the respective contentions of the claimant on the one hand and of the insurance officer or Minister on the other. It is at liberty to form its own view of a case, even though this may not coincide with the view of either [the claimant or the insurance officer or the Minister].”
It is because the function of social security tribunals, including the appeal tribunal and the Social Security Commissioner, is to investigate, that they can be described as having an inquisitorial function or a duty to act inquisitorially rather than simply determining upon the issues identified by the parties on the basis of the evidence led by the parties. As investigators or inquisitors, if it is apparent to them that there is a material point available to the claimant, supporting his claim for benefit, that point should be explored. It was under reference to this inquisitorial function of the appeal tribunal that the Commissioner in R(IS) 11/99 said this, at paragraph 31 of his decision:
“It seems to me that there is clearly a duty upon a tribunal to ensure that all relevant questions have been asked of a claimant. It could not be otherwise, given the complexity of social security law and the fact that few claimants have advisors and many are poorly educated. The asking of questions is largely achieved by ever-more sophisticated claim forms but even the income support claim form, which runs to several pages, cannot ask all possibly relevant questions. Some questions are designed merely to elicit an answer which will reveal whether further questions need be asked later. When a case goes on appeal, it seems to me that the tribunal are not bound to ask questions that have already been asked by the Secretary of State or by an adjudication officer, unless the points have been put in issue, but they are obliged to ask those questions that have not previously been asked but which should have been asked.”
33.	Taking that as a correct description of how an appeal tribunal should go about its fact-finding, it would seem self-evident that however difficult or straightforward it may be for an appeal tribunal to determine, at a hearing at which the claimant will usually be present, what, if any, are the questions which have not been asked but which should have been asked; it is the more difficult for a Social Security Commissioner, simply by a consideration of the documents, to determine whether there has been a failure on the part of an appeal tribunal to fulfil that duty, particularly in a case where the point is not focused in the Notice of Application. When the matter comes to this court on an application for judicial review, the question of course is whether the Commissioner, in refusing leave after a consideration of the documents, has made an error of law. What then should be the approach of this court where what is said to be the Commissioner's error in law is a failure to recognise an error in law on the part of the appeal tribunal where the supposed error is not mentioned in the Notice of Application? 
34.	Guidance is available from the decision of Scott Baker J. in R (Anayet Begum) v. Social Security Commissioners [2002] EWHC 401. This was an application for judicial review of the decision of a Social Security Commissioner to refuse leave to appeal against the decision of an appeal tribunal. In her application for judicial review, the claimant raised alleged errors of law which were not included in her grounds of appeal to the Social Security Commissioner. In the course of his judgment Scott Baker J said this:
“13.	The first issue before me is what is the proper approach for the court to apply when judicial review is sought where the Commissioner failed to grant leave to appeal but the real grounds were not identified in the grounds of appeal to him. It is common ground that both the Commissioner and the tribunal have an inquisitorial jurisdiction (R v. Deputy Industry Injuries Commissioner ex parte Moore [1965] 1 Q B 456 and R v. Medical appeal tribunal ex parte Hubble [1958] 2 QB 228). It is also common ground that the Commissioner may give leave on the basis of grounds not raised in the grounds of appeal. As far as I am aware that matter has never been disputed, albeit there is no decision of the Court of appeal or High Court affirming that it is so.
14.	In the end, these two matters are simply background matters and there had been little, if any, dispute between the parties as to the test that I should apply in the present case.
15.	In her application for permission to apply for judicial review, the claimant raises alleged errors of law not included in her grounds of appeal to the Commissioner. The standard test for judicial review of a Commissioner's refusal of leave to appeal is set out in R v. Secretary of State for Social Services ex parte Connolly [1986] 1 All ER 998 at 1007 paragraph h. Slade LJ there said:
“In a case where a commissioner has refused leave to appeal without giving reasons and an applicant seeks to challenge such refusal by way of judicial review, the onus must, in my judgment, lie on the applicant to show either (a) that the reasons which in fact caused the commissioner to refuse leave were improper or insufficient or (b) that there were no good grounds on which such leave could have been refused in the proper exercise of the commissioner's discretion. He may well discharge this onus by showing that the decision sought to be challenged was on the face of it clearly erroneous in law or, alternatively, gave rise to a substantially arguable point of law. However, if it can be seen that there are still good grounds on which the commissioner would have been entitled to refuse leave in the proper exercise of his discretion, the court should, in my opinion, assume that he acted on those grounds unless the applicant can point to convincing reasons leading to a contrary conclusion.”
16.	That passage must now be considered in the light of the judgment of the Court of appeal in R v. Secretary of State for the Home Department ex parte Robinson [1998] QB 929. At page 943e Lord Woolf, then Master of the Rolls, giving the judgment of the court said:
“We turn now to consider the third point which arises on this appeal. We have observed that the special adjudicator did not expressly consider whether it was reasonable to expect the claimant to settle in Colombo. He merely asked himself whether the claimant would have a well-founded fear of persecution if he was returned there. However, he did consider the question whether the claimant had “special characteristics” so that he may have been assuming that Colombo was a safe haven in accordance with previous decisions. No question relating to reasonableness, as opposed to safety, was raised in the grounds of appeal to the tribunal. Under these circumstances was the tribunal itself obliged to consider whether the special adjudicator had dealt correctly with questions relating to reasonableness when it considered whether to grant leave to appeal?”
17.	Then at 945e he continued:
“It follows from what we have said that it is the duty of the appellate authorities to apply their knowledge of Convention jurisprudence to the facts as established by them when they determine whether it would be a breach of the Convention to refuse an asylum-seeker leave to enter as a refugee, and that they are not limited in their consideration of the facts by the arguments actually advanced by the asylum-seeker or his representative.”
18.	Then a little lower down at g:
“It is now, however, necessary for us to identify the circumstances in which it might be appropriate for the tribunal to grant leave to appeal on the basis of an argument not advanced before the special adjudicator, or for a High Court judge to grant leave to apply for judicial review of a refusal of leave by the tribunal in relation to a point not taken in the notice of appeal to the tribunal.
Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should [be] under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely “arguable” as opposed to “obvious”. Similarly, if when the tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the tribunal had a strong prospect of success if leave to appeal were to be granted.”
19.	There is nothing in the judgment of the court in Robinson to suggest that the test for a tribunal granting leave to appeal in an immigration case, in respect of a point not raised in the grounds of appeal, is not an appropriate test in other tribunals. In my judgment, it would be confusing and without logic were some different test to apply to a Social Security commissioner. I therefore adopt it and adapt it to apply in the present case. Thus where the Master of Rolls refers to “an obvious point of Convention law” one could equally well read “an obvious point of Social Security law”.
20.	The position is that mere arguability is not the test, a higher hurdle must be surmounted. The point must be obvious; that is one which would have a strong prospect of success were leave to be granted. An obvious point, it seems to me, is one that stands out and not one that can only be gleaned by a paper chase through various documents which may underlie the decision maker's decision. Accordingly, it will, in my judgment, ordinarily be difficult to bring a reasons challenge within such a category, unless the reasons are obviously deficient on their face.”
As part of his submission, Mr Sutherland pointed to what he saw as an unresolved inconsistency between the tribunal's recording of the evidence of the petitioner as being that he had fallen outside recently and required 15 stitches and its finding in fact that the petitioner had fallen occasionally but had had no injuries as a result of these falls. I shall return to this point. Otherwise, Mr Sutherland's criticism of the appeal tribunal focused on its failure to make findings in fact on a number of matters which might bear on the petitioner's ability to walk: his having suffered dizzy spells, the potential for injury in the event of him falling, the time it took him to walk the distance of 100 metres mentioned in finding in fact 2 and whether the effort of doing so incapacitated him for further walking, and the impact of arthritic pain; this failure being compounded by a failure to make the findings in fact which it did make by reference to any particular point in time. In that this criticism was advanced without any reference to what had been said by the petitioner, or said on his behalf by his representative, during the course of the hearing before the appeal tribunal, it appeared to be implicit in Mr Sutherland's submission that what he was founding on was a failure by the tribunal properly to discharge its inquisitorial or investigatory function by pursuing lines of enquiry which had to be pursued, the failure being demonstrated by the absence of explicit findings on all the matters identified. I see this as implicit in Mr Sutherland's submission, notwithstanding, as Mr Brodie observed, the absence of any specific averment in the petition to the effect that the tribunal had failed to act inquisitorially. To use the language of R (IS) 11/99, there was, in Mr Sutherland's submission (as I understood it), a failure on the part of the tribunal “to ask those questions that have not … been asked but which should have been asked”. An immediate difficulty that I have with this submission is that it is not averred and it was not said by Mr Sutherland that further inquiry into the matters identified by him would necessarily have produced information which would have materially altered the tribunal's assessment of the petitioner's ability to walk. Moreover, it is not averred and it was not said by Mr Sutherland that these matters were referred to at the hearing before the tribunal either by the petitioner or by his representative as bearing on the question of virtual inability to walk. It is, in my opinion, of some importance that although the petitioner was represented by a welfare rights officer from Glasgow City Council Social Work Department, these matters were not, as it would appear, put in issue at the hearing before the tribunal. The only feature of the petitioner's condition which was put forward in his appeal letter of 22 November 1999 as bearing adversely upon his ability to walk was osteoarthritis in his knees causing him to stop walking after approximately 40 yards due to severe discomfort. As I have already observed, neither were the matters referred to by Mr Sutherland put in issue in the Notice of Application to the Social Security Commissioner. This latter document was drafted by the petitioner's representative (as indeed the appeal letter appears to have been). This does at least suggest that whatever the general relevance of the matters referred to by Mr Sutherland to a claimant's inability or virtual inability to walk, they were not seen by the petitioner's representative to be material in the petitioner's case.
35	The tribunal found, in terms, that the petitioner was able to walk 100 metres at a slow pace. It found that the petitioner did not experience pain or breathlessness amounting to severe discomfort but that he required to stop because of arthritic pain. It found that the petitioner had fallen occasionally but that he was fully mentally competent and aware of common dangers and did not suffer from any episodes of altered awareness or loss of consciousness. These findings are consistent with the conclusion that the petitioner was not virtually unable to walk. They respond to the points made in the appeal letter. The matter of severe discomfort by reason of arthritic pain is specifically addressed. The tribunal's findings are not elaborate and, I accept, they do not specifically address the possibilities that the petitioner's ability to walk is so impaired by a sufficiently pronounced susceptibility to dizziness with consequent falling and risk of injury, a tendency to fall for other reason, or exhaustion consequent upon the effort of attempting 100 metres, that he should be regarded as virtually unable to walk, but the positive tenor of the findings and, in particular, the finding that the petitioner was able to walk 100 metres at a slow pace, tend to negative the existence of conditions which were of such severity or frequency of incidence as to make the petitioner virtually unable to walk. There is no finding of fact in relation to dizziness and associated falls but the reasoning of the appeal tribunal indicates that this was a matter to which it had given consideration, albeit in the context of the care component and the need for supervision, and had concluded that the danger was remote. It is not, in my opinion, a valid criticism of a decision, where the decision- maker has an obligation to make findings and give reasons, that the decision does not canvass all possibilities that might be of relevance to the decision and demonstrate that they have been excluded, where these possibilities have not been raised as issues before the decision-maker. In the particular case of a decision on the entitlement to the mobility component of DLA, it is provided by section 12(8)(a) of the 1998 Act that an appeal tribunal need not consider any issue that is not raised by the appeal. I appreciate that to say this begs the question as to what is meant by being raised as an issue by an appeal. Where the decision-maker has an inquisitorial function, as is the case with the appeal tribunal here, it is not necessary for an issue to arise that it be raised by a party seeking a decision and that is so even where the party is represented by an appropriately skilled representative. Nevertheless, the issue must in some way be one which obviously demands attention. I am not satisfied, on a consideration of all the material before me, including the submissions of counsel, that the appeal tribunal is to be taken as having failed properly to address the issues which arose in the appeal before it or to have failed to ask those questions that have not been asked but which should have been asked.
36	The finding that the petitioner had fallen occasionally but had had no injuries as a result of these falls does not, on the face of it, square with the petitioner's account, recorded in the tribunal's reasoning, of him having fallen outside recently and requiring 15 stitches. As Mr Sutherland pointed out, the explanation may lie in the word “recently” in that what the tribunal had to consider was the petitioner's condition as at the date of the adjudication officer's decision and not the date of the hearing before the tribunal. That may be so. It may be that the decision of the appeal tribunal is open to criticism as containing an internal inconsistency. Be that as it may, there is nothing in the material before me to indicate that there was anything to suggest that there was such a propensity on the part of the petitioner to fall that he should be regarded as virtually unable to walk. There is certainly nothing of that sort in the appeal letter or the Notice of Application.
37	It is not, of course, the decision of the appeal tribunal which is the subject of this application for judicial review. It is the decision of the Social Security Commissioner to refuse leave to appeal from the decision of the appeal tribunal, leave to appeal having previously been refused by the Chairman of the tribunal. Applying the R (Anayet Begum) test of whether the Social Security Commissioner failed to discern an obvious ground of appeal which had strong prospect of success I cannot regard the Commissioner as having fallen into an error of law when refusing to grant leave to appeal. In his submissions Mr Sutherland formulated the test as being whether the Commissioner had made an obvious error of law. I question whether that is in substance any different from what was put forward in R (Anayet Begum), but, in any event, I do not see the Commissioner as having made an obvious error. I shall refuse the petition.