[2005] UKSSCSC CDLA_1531_2005 (06 October 2005)

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The claimant's appeal to the Commissioner is allowed. The decision of the Basildon appeal tribunal dated 9 February 2005 is erroneous in point of law, for the reasons given below, and I set it aside. The case is referred to a differently constituted appeal tribunal for determination in accordance with the directions given in paragraphs 13, 19 and 20 below (Social Security Act 1998, section 14(8)(b)).

2.	In this case, the representative of the Secretary of State has supported the claimant's appeal in a reasoned submission. The claimant's representative had no comments to make in reply. In the circumstances there is no need to set out all the details of the case, but I should give brief reasons for setting aside the appeal tribunal's decision, especially as this is the second time that the case has reached the level of the Commissioner.

3.	The appeal tribunal was concerned with the claim for disability living allowance (DLA) treated as made on 21 October 2002. At that precise date the claimant was an in-patient in hospital, having been admitted on 19 October 2002 for an operation for an emergency repair to a leaking abdominal aortic aneurysm. He was discharged on 5 November 2002. In the claim pack, signed on 9 November 2002, the claimant said that following the operation he was very limited in all activities of life, being restricted by breathlessness, muscular pain and weakness, as well as by anxiety over his condition. He described increasing breathlessness after walking five metres, which would take a minute. A report was obtained from the claimant's GP, completed on 22 November 2002. This described severe illness post-operatively, but a steady recovery being made, with a good prognosis for a full recovery. In answer to the question whether the claimant was breathless either at rest or on the slightest exertion, the GP wrote "No" (page 42). He stated that the claimant was able to self-care and in the box about ability to get around merely wrote "Improving".

4.	On that evidence and after advice from Medical Services that he would be expected to have fully recovered in the next six months, the decision was given on 20 December 2002 that the claimant was not entitled to either component of DLA. That was on the basis that from 21 October 2002 to 18 January 2003 he would not have met the test of satisfying the medical conditions of entitlement for three months (Social Security Contributions and Benefits Act 1992, sections 72(2)(a) and 73(9)(a)) and that from 19 January 2003 he would not meet the test that he was likely to continue to satisfy those conditions for at least six months (sections 72(2)(b) and 73(9)(b)). The claimant appealed.

4.	He attended the hearing on 27 November 2003 with his representative, Mr Alan Barber, a welfare rights adviser for Basildon District Council. Mr Barber had prepared a written submission and obtained a letter from the claimant's GP. The essence of the submission was that the claimant had not made the anticipated recovery. It also reported a walking test in which the claimant complained of severe pains in the stomach and weakness in the legs after walking 15 to 20 yards on flat ground and was observed to have become very breathless. The appeal tribunal disallowed the appeal. As that decision was later set aside as erroneous in point of law by Mr Commissioner Lloyd-Davies (in CDLA/1534/2004), I need not go into the details of the appeal tribunal's reasoning. But I do need to look at what was agreed then by the Secretary of State to be the error of law, as that is relevant to the approach taken by the appeal tribunal of 9 February 2005. The appeal tribunal of 27 November 2003 took the view, relying on the decision of Mr Commissioner Angus in CDLA/2878/2000, that what mattered was the prognosis that would have been given as at the date of claim and that section 12(8)(b) of the Social Security Act 1998 prevented consideration of evidence that the claimant did not in fact recover within the six months from the date of claim.

5.	In the application for leave to appeal, Mr Barber submitted that the approach of the appeal tribunal of 27 November 2003 was inconsistent with Mr Commissioner Jacobs' decision R(DLA) 3/01. When granting leave, Mr Commissioner Lloyd-Davies asked whether, if the claimant's condition at the date of the decision was such that the prognosis adopted by the medical adviser was incorrect, subsequent evidence could be received to prove that condition. The Secretary of State supported the appeal, without reference to any Commissioners' decisions, and suggested the use of the procedure in section 14(7) of the Social Security Act 1998. Paragraph 7 of the submission of 12 July 2004 was as follows:

	"7. However, I submit that the tribunal has erred as they did not explore with the claimant during the tribunal hearing what care and attention needs he had during the prospective period of 6 months, which would have commenced from 19 January 2003 until 18 June 2003 and if those needs extended past the 18 June 2003."

6.	That paragraph is, with respect, somewhat Delphic and needs a little unpacking. The reasoning starts from the agreed basis that the claimant had no needs relevant to DLA before the sudden onset of the aneurysm on 19 October 2002. Therefore, whatever the effects of his disablement, he could not satisfy the three-month qualifying period and become entitled to DLA before 19 January 2003. The six-month prospective test then had to be applied as from 19 January 2003 (the date on which the award would otherwise begin). The decision maker on 20 December 2002 and the appeal tribunal could properly consider the making of an award beginning on 19 January 2003 on the claim made on 21 October 2002. Regulation 13A(1) of the Social Security (Claims and Payments) Regulations 1987 allows an advance award of DLA beginning no more than three months after the date of claim on satisfaction that, although a claimant does not satisfy the requirements for entitlement at the date of the decision (eg by the three-month qualifying period not yet having expired) he will do so within the three months. I think that the author of the submission of 12 July 2004 was then submitting that the appeal tribunal of 27 November 2003 erred in law by looking at the prognosis not as at 19 January 2003, but as at earlier dates. However, the submission did not grapple with the effect of section 12(8)(b) in prohibiting the appeal tribunal from taking into account circumstances obtaining after 20 December 2002 or explain how the appeal tribunal could have used evidence of what the claimant's actual needs were in the period from 19 January 2003 to 18 June 2003 and beyond.

6.	Mr Barber made no comments on the Secretary of State's submission of 12 July 2004. Therefore, it is not surprising that Mr Commissioner Lloyd-Davies issued a section 14(7) decision setting aside the decision of the appeal tribunal of 27 November 2003 and remitting the case for rehearing. His directions to the new appeal tribunal merely drew attention to his comments when granting leave, to the Secretary of State's submission and to regulation 13A of the Claims and Payments Regulations.

7.	The rehearing took place on 9 February 2005. Mr Barber had put in a written submission and a copy of a letter dated 22 November 2004 to an insurance company from another doctor in the claimant's GP's practice, which described some of the history since October 2002. The letter included the following in the list of problems:

	"4. Generalised weakness and leg pains ever since his aortic aneurysm surgery. [The claimant] has suffered with weakness and pains in his legs so that he is unable to walk more than about twenty yards without pain and breathlessness and needs help in personal care and dressing of his lower body. These symptoms have not been specifically investigated but have been attributed to the severity of the initial condition requiring surgery."

Mr Barber's submission was for qualification for the higher rate of the mobility component of DLA only. The claimant attended the hearing with Mr Barber and gave detailed evidence.

8.	The appeal tribunal disallowed the appeal. In the statement of reasons, concern was expressed that Mr Commissioner Lloyd-Davies's decision had not examined what was described as a direct conflict between Commissioners' decisions R(A) 1/94 and R(DLA) 3/01, the latter of which had not referred to the former. However, the appeal tribunal did not need to resolve the alleged conflict (to which I shall return below). That is because, on its examination of the claimant's walking ability in the period from 19 January 2003 to 18 June 2003, it concluded that the claimant did not satisfy the medical conditions of entitlement to the higher rate of the mobility component. There were three central conclusions. First, that breathlessness did not contribute to the limitations on the claimant's ability to walk, as the claimant's GP in November 2002 had said that it was not present, the claimant appeared not to have been investigated or treated for it and if breathlessness, which would not have been a normal consequence of the operation, had emerged, investigation on the post-operative follow-up would have been expected. Second, that as weakness and numbness in the leg was not normally associated with the operation, the limitations on the claimant's ability to walk were not attributable to physical disablement. Third, if the appeal tribunal's second conclusion was wrong, the claimant was not virtually unable to walk in the period from January to June 2003 in the light of the claimant's oral evidence of the circumstances in which he did walk.

9.	The claimant now appeals against the appeal tribunal's decision with my leave. When granting leave to appeal to the Commissioner, I said this:

	"Did the appeal tribunal adequately explain its reasoning in paragraphs 4.4 and 4.5 (in the numbering added by the claimant's representative) of the statement of reasons for concluding that the claimant's stated inability to walk was not attributable to physical disablement? Was the claimant left guessing whether or not the appeal tribunal considered that the restrictions on walking ability were due to psychological factors or were to some degree feigned by the claimant? Should the appeal tribunal also, in relation to its conclusion in paragraph 4.6, have said what it made of the claimant's representative's evidence of conducting a walking test and of [the doctor's] letter of 22 November 2004? It seems to me that the claimant's representative is right that, if the appeal tribunal's reasoning is not otherwise to be faulted in law, it did not need to decide exactly how the six-month prospective test is to be applied."

10.	In the submission dated 29 July 2005 the representative of the Secretary of State supported the appeal, but while identifying a number of criticisms of the appeal tribunal's reasoning did not pin down a precise error of law. It was suggested that the Commissioner might consider deferring a decision until the Tribunal of Commissioners that is considering cases CDLA/2879/2004 and CDLA/2899/2004 (on the link with physical disablement when physical symptoms have no identifiable organic cause) has given its decision. Mr Barber had no comments to make in reply.

11.	The decision in the present case should not be deferred. Unfortunately, a further oral hearing is required in the Tribunal of Commissioners' cases, listed for 28 October 2005. However, I have concluded here that the decision of the appeal tribunal of 9 February 2005 must be set aside for other reasons. As there must be a rehearing, the Tribunal of Commissioners' decision will be available in time for the new appeal tribunal to apply whatever principles of law it sets out.

12.	I now conclude that the appeal tribunal of 9 February 2005 did err in law, essentially on the questions identified when I granted leave. If the appeal tribunal wished the main reason for deciding against the claimant, once it had sidelined the issue of breathlessness, to be that the restrictions on the claimant's walking were not attributable to physical disablement, a more detailed discussion was necessary. The claimant was left guessing in the way that I mentioned. In addition, the question of a lack of a sufficient connection with physical disablement does not appear to have been raised before 9 February 2005 or at the hearing on that date. There is at least a good argument that the question was sufficiently new that the appeal tribunal should not have relied on it as decisive without having given the claimant and Mr Barber an opportunity to make submissions and possibly to seek medical or other advice about it. Those errors are not rendered immaterial by the appeal tribunal's secondary conclusion, on the claimant's oral evidence, that he was not virtually unable to walk in the period from January to June 2003. In coming to that conclusion the appeal tribunal should have specifically said what it made of the evidence of the walking test and of the doctor's letter of 22 November 2004 about the limiting effects of pain as well as breathlessness. Further, it is not clear how far that conclusion rested on the discounting of the effects of breathlessness. I agree with the Secretary of State and Mr Barber that the appeal tribunal's conclusions on breathlessness were undermined by its interpreting the answers given by the GP on 22 November 2002 in a way that went well outside the scope of the questions actually asked.

13.	For all those reasons in combination, I set the decision of the appeal tribunal of 9 February 2005 aside. The claimant's appeal against the decision of 20 December 2002 is referred to a differently constituted appeal tribunal for determination in accordance with the directions below. No-one who was a member of the appeal tribunals of 27 November 2003 or 9 February 2005 is to be a member of the new appeal tribunal.

14.	In order to give directions of law, I need first to deal briefly with Commissioners' decisions R(A) 1/94 and R(DLA) 3/01. In my view the conflict alleged to exist between those decisions is based on a misreading of both of them. R(A) 1/94 was a very unusual case. It concerned a child who was profoundly disabled and lived only from 31 August 1990 to some date in 1992. On the claim for attendance allowance in October 1990, an award was made with effect from 1 March 1991 (as the qualifying period was then six months). In January 1991, an application for review was made relying on the provisions for the terminally ill, which lifted the requirement to serve out the qualifying period if the disabled person's death in consequence of a progressive disease could reasonably be expected within six months. A consultant was not asked the question whether the child was likely to die within six months until November 1991 and did not reply until January 1992, when he said that as the child had survived until that date he could not answer the question. It was then decided that the conditions for the application of the terminal illness provisions were not met. Mr Commissioner Johnson had no difficulty in accepting the submission for the Secretary of State that the question was whether death could be expected within six months of the date of the application for review and that the fact that the child had survived for more than six months by the date of the decision was irrelevant. The consultant had not been asked the right question focused on the relevant date. However, the decision only to award attendance allowance from 1 March 1991 was upheld, because the child was caught by the requirement for entitlement for any day of having been present in Great Britain for at least 26 weeks in the preceding 12 months. Thus, the ruling on the terminally ill provisions was not ultimately decisive in the outcome and the case was one where relevant evidence was lacking. Especially as section 12(8)(b) of the Social Security Act 1998 had not yet been enacted, there was no need for any sophisticated analysis of the nature of prospective conditions.

15.	R(DLA) 3/01 directly concerned the six-month prospective condition. The appeal tribunal in that case was concerned with an application for review of a disallowance of a renewal claim for DLA with effect from 12 February 1998. The claimant had a hip replacement operation on 7 March 1998 that she expected would increase her needs and in April her GP indicated that her mobility would be restricted for six months. On 1 July 1998 a senior registrar wrote that she was then fully weight-bearing. On 10 July 1998 an adjudication officer confirmed the disallowance of the claim. The rule now contained in section 12(8)(b) of the Social Security Act 1998 was therefore applicable.

16.	Mr Commissioner Jacobs, in a wide-ranging decision, held, as is now universally accepted, that the prohibition in section 12(8)(b) does not prevent evidence arising after the date of the decision under appeal being considered if it is relevant to the circumstances obtaining at or before that date. He said this in paragraph 60:

	"60. An appeal tribunal is entitled, and required, to take account of the fact that at the time of the decision a claimant is in a period of post-operative recovery. That is a circumstance obtaining at the time. If a rule requires a prediction of future events but the actual events are known by the time of a hearing, a court would take account of what had actually occurred rather than undertake an artificial exercise of prediction: see for a recent discussion of this principle the decision of the Court of Appeal in Charles v Hugh James Jones and Jenkins (a firm) [2001] 1 All England Law Reports 289 at pages 299 to 301. However, section 12(8)(b) prevents appeal tribunals from applying this principle."

17.	It is important to stop to note the last sentence of that paragraph. Mr Commissioner Jacobs did not hold, as Mr Barber has appeared to say at points, that the courts' principle of not undertaking an artificial exercise in prediction was to be adopted in DLA cases. He held the very reverse: that section 12(8)(b) prevented its adoption. He went on in paragraphs 61 to 69 to suggest some illustrative examples of when an interruption of an expected course of recovery after the date of decision might be regarded as a new circumstance (and therefore to be excluded from being taken into account) and when it might be regarded as merely part of the expected variation in the course and speed of recovery. But nowhere in those paragraphs did he suggest that, in relation to the six-month prospective test, one could simply substitute hindsight or looking at what actually happened. In paragraph 68 the Commissioner did say that, if the actual recovery period were not abnormal, an appeal tribunal could look at that, but only if it asked itself the right question, which was how long was the claimant likely to satisfy the conditions of entitlement, disregarding fresh circumstances (as he defined them) occurring after the date of the decision under appeal (paragraph 64). The question was still one of probabilities on a prospective basis as at the relevant date.

18.	Accordingly, I find no inconsistency in terms of legal principle between R(DLA) 3/01 and R(A) 1/94 and nothing in the existence and nature of the earlier decision to cast any doubt on the authority of R(DLA) 3/01. Nor do I find any inconsistency in terms of legal principle between R(DLA) 3/01 and the decision in CDLA/2878/2000 (if references there to the date of claim are read as references to whatever date is relevant in the circumstances).

Directions to the new appeal tribunal
19.	There must be a complete rehearing of the appeal against the decision of 20 December 2002 on the evidence presented and submissions made to the new appeal tribunal, which will not be bound by any findings made or conclusions expressed by the appeal tribunals of 27 November 2003 and 9 February 2005. I do not need to give any directions of law on the conditions of entitlement to DLA or more particularly the higher rate of the mobility component if that remains the only award contended for on behalf of the claimant. The new appeal tribunal must follow the decision to be given by the Tribunal of Commissioners in CDLA/2879/2004 and CDLA/2899/2004 if it is relevant on its view of the facts.

20.	There appears no doubt that an award of the higher rate of the mobility component could not be made to take effect from any date earlier than 19 January 2003, by virtue of section 73(9)(a) of the Social Security Contributions and Benefits Act 1992. Nor could an award be made to take effect from any date after 21 January 2003 because of the limits of the power in regulation 13A(1) of the Claims and Payments Regulations. Then an award could only be made to take effect from a date within those limits if the new appeal tribunal were satisfied, first, that the test in section 73(9)(a) would have been met as at that date on the circumstances as they can now be seen to have been on 20 December 2002 and, second, that the test in section 73(9)(b) - the six-month prospective test - would have been met on the same basis. In asking that second question, the new appeal tribunal is to apply the principles laid down in R(DLA) 3/01 as explained above. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new appeal tribunal. The decision on the facts in this case is still open.

	(Signed)         J Mesher    
	Commissioner

	Date:   6 October 2005